Princeton Demands Website Remove Elena Kagan's Thesis; Claiming Copyright Infringement

from the fair-use? dept

Mon, May 17th 2010 4:40pm — Mike Masnick

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.

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Filed Under: copyright, elena kagan, princeton, thesis

28 Comments

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abc gum, 17 May 2010 @ 5:28pm

I attended university some years ago, so things have probably changed a bit, but I do not recall signing away any copyright. How does Princeton claim this right?
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Anonymous Coward, 17 May 2010 @ 5:38pm

Ostensibly published in 1981, and without the then required notice of copyright, the opportunity to cure the absence of the notice long ago lapsed. Thus, I am having a hard time understanding any legal basis upon which distribution of the paper can be enjoined.
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Anonymous Coward, 17 May 2010 @ 5:45pm

Re:
A lawyer's stationary and a printer are all that is required to write a demand. Now the law to back it up is another thing.
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bob, 17 May 2010 @ 5:54pm

A sheltered life
Most of Kagans life has been spent within the confines of academia with only a small portion of it actually working in the real world.
Most of what she has said has gone against our republican form of government with it's representative democracy.
The most troubling of her writings is that the government has a right to restrict freedom of speech if that speech is not liked by the government.
So I find her very troubling.
Not only for her socialist laments.
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Anonymous Coward, 17 May 2010 @ 6:42pm

Re: A sheltered life
You might want to be careful tossing around words like socialism, using terms like that is usually the last resort of those who had no valid argument to begin with.

Case in point: I repeated Thomas Jefferson's views on intellectual property without sourcing the quote to see the reaction I'd get.

Sure enough, the views of one of America's founding fathers father were called unamerican and socialist. Heh.
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Bob, 17 May 2010 @ 8:27pm

Ms. Kagan
It seems to me that the Obama Administration has made a call to Princeton, much like they did to CBS. The scary part is that Kagan has a secret past, present and future. While we all know that she is a rubber stamp for the left-wing agenda... Why then, the attempt of trying so hard to conceal her views on just about every issue. Why the secrecy? Why the denials? Hmmm. BORK HER!
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Anonymous Coward, 17 May 2010 @ 8:30pm

Re: Re: A sheltered life
You left out Slave-Owner
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Anonymous Coward, 17 May 2010 @ 9:09pm

Re: Re: Re: A sheltered life
And slaves are not relevant to the topic of IP at all.

Sure slaves and IP are both illegitimate forms of property. But even then it's not relevant to anything in this topic.
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Anonymous Coward, 17 May 2010 @ 9:25pm

Why don't you host a copy here as well?
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Anonymous Coward, 17 May 2010 @ 9:27pm

Re:
"Princeton Demands Website Remove Elena Kagan's Thesis; Claiming Copyright Infringement"

That's why. There's no good reason to open up techdirt to a lawsuit, especially when it can already be found elsewhere.
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Anonymous Coward, 17 May 2010 @ 9:33pm

Re: Ms. Kagan
Hi Glenn.
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Anonymous Coward, 17 May 2010 @ 9:47pm

Re: Re: Ms. Kagan
Hey stewie.
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double trouble, 18 May 2010 @ 5:07am

Re: A sheltered life
Your opinion has wandered off topic.
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observation, 18 May 2010 @ 5:10am

Re: Ms. Kagan
Looks like "bob" is another pundit incapable of social discourse without injecting his political vitriol.
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abc gum, 18 May 2010 @ 5:16am

What is the basis for their copyright claim?

Do they automatically receive copyright upon any and all work perfomrd by students? How is this accomplished? I could possibly understand if the student education costs were being paid for by the university, but this is usually not the case. I thought the student retained copyright upon all their work, guess not.
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Anonymous Coward, 18 May 2010 @ 6:36am

Copyright attaches automagically to anything you create. Simply creating gives you alone the rights to the work.

As for fair use, you can't post the entire document and claim fair use, only excerpts. (Otherwise the exception would swallow the rule)
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Anonymous Coward, 18 May 2010 @ 6:43am

Can any lawyerly people explain why the copyright belongs to Princeton, not Kagan?
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Anonymous Coward, 18 May 2010 @ 7:14am

It doesn't. The only way Princeton could obtain the copyright would be for Kagan to specifically sign it over.

Which they do not require. They may have in the 1980s, but as far as I'm aware, they only ever request the right to reproduce the work without paying the author, but only for personal/scholarly work.
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dnball (profile), 18 May 2010 @ 9:00am

Re:
The 1976 Copyright Act -- effective January 1, 1977 -- did away with the requirement to affix a notice of copyright as a condition for copyright to attach. Why do you think a notice was required?
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dnball (profile), 18 May 2010 @ 9:26am

Re:
Two copyright rules to bear in mind: (1) each of the rights in the bundle of rights that comprise a "copyright" are divisible -- which means that each may be licensed or sold individually, and (2) any "legal or beneficial owner of an exclusive right under a copyright" may sue to enforce that right.

Princeton does not, therefore, have to OWN the copyright -- or even the constituent reproduction or distribution rights in the copyright -- that attaches to Kagan's thesis in order to file suit to enjoin others from reproducing or distributing the thesis. Princeton must only own the exclusive license to do either.

I have no idea whether Princeton owns the exclusive license to reproduce or distribute Kagan's thesis. And I seriously doubt that it does. Bit if it does, it has standing to take lawful action to stop others from reproducing or distributing the thesis.

The resolution of this issue turns on the rights that Kagan conferred to Princeton by her submission of her thesis to Princeton in order to graduate. Both Kagan and Princeton are private actors -- and so the contract [in the broad sense] that those two entered into for Princeton's provision of educational services in exchange for her tuition will control. The documents that comprise that contract are multiple and varied - e.g., the student handbook, the university rules, financial aid forms, etc.
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Guest, 18 May 2010 @ 10:57am

Re: Re:
First, the 1976 Copyright Act went into effect in 1978, not 1977.

Second, the notice requirement was not abolished until 1989.
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dnball (profile), 18 May 2010 @ 12:04pm

Re: Re: Re:
Yup. You're right on both counts. Thanks much.
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dnball (profile), 18 May 2010 @ 12:05pm

Re: Re:
Very good article that discusses this very subject: http://j.mp/chD6QZ
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Anonymous Coward, 18 May 2010 @ 12:39pm

Re:
"As for fair use, you can't post the entire document and claim fair use, only excerpts. (Otherwise the exception would swallow the rule)"

False.
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Guest, 18 May 2010 @ 12:48pm

Re: Re:
I guess it's "false" that this is some sort of hard and fast brightline rule, but if you're aware of any case finding fair use where an entire multi-page document was reproduced, I'd be interested to see it.

(In other words, "link?")

Of course it's all academic (no pun intended) at this point, as there's no indication that Kagan *does* want to stop such use, and the Princeton guy that sent the e-mail acknowledged in some other interview that Princeton doesn't own the copyright (and implied they don't have exclusive licensee standing either).
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Anonymous Coward, 18 May 2010 @ 12:53pm

Re: Re: Re: Re:
No prob. As you probably know, there's enough copyright misinformation on da Internets.
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Art, 19 May 2010 @ 7:52am

I can definitely see the point about it being publicly available because it's now about a high profile public figure, but anyone who has done secondary research knows that theses/dissertations are owned and published by the respective university, because research done at the university is theirs, and that you can make a request that your school's library get either a physical copy on loan or get a copy for you. The latter does cost money, like $15-$60 depending on how large and popular it is, but the cost is incurred by your school, not you. If any individual does this, the cost is incurred by them. Love to see the conspiracy theories about this though.

And just so I don't get accused of being a pinko commie for making a resoned response, I think a judge would make a better justice.
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Eugene Crawford, 11 May 2012 @ 5:42pm

A RAT !
I smelled the rat as soon as she was put in with the Supreme Court.. I Knew if Obama had anything to do with it it was more crap !! Get her out of there! Sworm in to uphold
the consitution ? A filthy Liar !!!!
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