Obviously, there's been lots of talk about Supreme Court nominee Elena Kagan in numerous areas. There have been various reports concerning Kagan's supposed views on copyright
, but those seem pretty blown out of proportion from what I've seen and in talking to folks who know Kagan. She was a big supporter of the Berkman Center at Harvard, but that was part of her job. Other than her recommendation
in the Cablevision case, there doesn't seem to be much to go on. In fact, I'm considerably more concerned with the idea that one of the leading contenders for Kagan's current job of Solicitor General is one of the entertainment industry's favorite legal attack dogs
who led the industry's case in Grokster
and was a major player in the Jammie Thomas trial before being appointed to the Justice Department (where he didn't last very long before moving over to the White House as associate White House counsel). Still, if Kagan really is a big supporter of fair use, you have to wonder what she thinks of the following situation.
With everyone digging deeper and deeper to find out more about Kagan, the website Red State apparently dug up her undergraduate thesis and posted it to their website... leading Princeton to demand that the thesis be taken down
-- not, of course, for political reasons, but copyright ones. The University is selling copies of her thesis, and apparently the commercial value just shot up:
It has been brought to my attention that you have posted Elena Kagan's senior thesis online.... Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.
Of course, ordering that the document be pulled down pretty much guarantees that it will get spread more widely -- and there's definitely a journalistic reporting defense for posting the document (though, I'm not particularly convinced that anything anyone wrote in college has much meaning once they've spent a few decades outside of college). And, of course, in trying to get the document taken down, it's just going to lead conspiracy-minded folks to think there's more to the document than there is (in actuality, it's a rather bland historical analysis, but you wouldn't know that from what some sites are claiming about it). But from a journalistic standpoint, it seems you could make a decent argument for fair use in distributing the document. In fact, publications like Newsweek are already sharing parts of the thesis
as well (mostly to debunk the hysteria around it). It's difficult to see what Princeton gained in issuing the takedown notice, other than to rile up people.