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May 10, 2010

Kagan Earns Praise as Supreme Court Nominee; Little Known of Her IP Positions

Elena Kagan has earned a lot of praise as a potential justice on the U.S. Supreme Court, but it appears that not much is known about how she would rule on intellectual property and technology issues if she is confirmed by the Senate.

Kagan, the current U.S. Solicitor General, has been nominated by President Obama to fill the vacancy of John Paul Stevens, who has announced his resignation.

There is not a long trail of paperwork, which would indicate how she would handle often complex intellectual property cases.

Several other nominees in recent decades have failed to win confirmation because of their previous controversial statements.

'One of the reasons that Kagan was probably an appealing choice for the President is that she has very little paper trail,' said Dan Farber, a professor at the University of California-Berkeley  Law School.  'So far as I know, she's never taken a public position about an IP issue.'

According to Todd Dickinson, executive director of the American Intellectual Property Law Association, a bar association representing over 16,000 members, and formerly the head intellectual property attorney for GE, Kagan doesn't have a significant written track record.

'Business and technology questions are still open,' he said.

Dickinson added that in general there is a lot of enthusiasm for her nomination. He predicts she should not have problems with confirmation.

One of the few times she had written about intellectual property law was in her 2009 brief in a case involving a dispute between Cablevision and several cable TV companies. It was about remote digital recording services (RS-DVR).

Kagan had argued that the U.S. Supreme Court should not review the case, which had been decided unanimously by the Second Circuit Court of Appeals in favor of the cable companies.

'The technology community was satisfied with the brief,' Dickinson said.

According to Public Knowledge (News - Alert), a public interest digital media group, Cablevision had wanted to offer a digital-recording service, like TiVo, except that the copying and storage would be done at the cable head-end instead of in a set-top box. The cable companies challenged Cablevision.

Beyond this case, one can just guess how she would rule on technology and IP cases - which are likely to be an important focus for the Supreme Court in future years.

'One might speculate that her background in First Amendment law would make her a little skeptical about expansion of copyright protections and favorable toward fair use defenses,' Farber said.

It is revealing that she was a popular dean at Harvard Law School - with both conservatives and liberals on the faculty - and was supportive of technology and IP initiatives during her tenure.  'Elena took a keen interest in the importance of information, technology and intellectual property,' recalls Harvard Law Professor John Palfrey, who is an expert in intellectual property law.

Dickinson speculated that perhaps some intellectual property issues and more likely several business issues would be addressed when her nomination is weighed by the Senate Judiciary Committee.


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Edited by Michael Dinan

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