There’s a weird lie that’s circulating around a lot of blogs this week that I think needs dispelling. It reminds me of one of my favorite scenes in The Wire, when Marlo tells the security guard “You want it to be one way. But it’s the other way.”
Eriq Gardner over at The Hollywood Reporter released an article on Monday claiming that the entertainment industry should fear Kagan on the Court, because:
[a]s dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school’s Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on “fair use” in copyright disputes.
I don’t feel as though I need to go to the substance of this assertion, as the whole premise of it is flat-out wrong, at least as Professor Lessig is concerned. A quick look at his HLS faculty profile shows that he was at Harvard as the head of Berkman between 1998 and 2000. In 2000 he left Harvard to form Stanford’s Center for Internet and Society, where he remained until 2009, when he rejoined Harvard at the Safra Foundation Center for Ethics. Kagan was in the Clinton Administration while Lessig was at Berkman, and served as Dean three years after Lessig had moved to Stanford. I don’t doubt that Kagan was instrumental in bringing Lessig back to Harvard, but unless Hollywood disapproves of government ethics, this shouldn’t be cause for alarm for them.
I have no idea who Gardner’s “others” are at Berkman who take “strongly liberal positions” on fair use, and I think after working there for a summer (and soon starting my second) I would have met these strongly liberal folks at this point. The Center’s not that big a place. I suppose this may be an attack on Professor Charles Nesson, but I don’t think Kagan could have done anything to alter his status at HLS. He’s been on the faculty there since 1966 and tenured since 1969.
Gardner puts this out like it’s one way. Well, it’s the other way.