Looking Over Judge Sotomayor's Tech Law Record

from the not-much,-but-it's-something... dept

Wed, May 27th 2009 3:24pm — Mike Masnick

With President Obama nominating Sonia Sotomayor to the Supreme Court, Thomas O'Toole noted that she would likely be the first justice with experience in "cyberlaw" cases prior to joining the court. As such, it's at least worth looking at what she's had to say -- though, as O'Toole notes, there's really not all that much to be gleaned from her decisions. None of the rulings stands out as especially troublesome and most seem pretty straightforward. The most notable is likely her ruling in Sprecht v. Netscape, where she ruled that contract terms online may not be enforceable when hidden behind a link and then requiring the user to scroll down the page. She found that a "reasonably prudent" user would not likely have gone through the trouble, thus suggesting that the contract might not be enforceable. This seems like a good ruling, and at least a hint that perhaps Sotomayor understand some online-related issues. But, overall, there's not much else to go on at this point.

Most of the other rulings are on minor cases, though she did issue the original district court ruling on the Tasini v. NY Times case that explored whether or not the Times was violating the copyright of freelance authors by reselling the articles they had written for the Times in an electric form. She ruled in favor of the NY Times, but the Supreme Court eventually ruled the other way. On this again, I think she made the right decision (and the Supreme Court got it wrong), but there were a lot of little nuances in that case that make it not a black and white case at all.

Meanwhile, some others have looked into Sotomayor's record on intellectual property and free speech issues, noting that she was once an IP litigator when she was a practicing lawyer -- though there doesn't appear to be much detail there, and much of the work seemed to be focused on trademark issues (which are less of an issue that patent and copyright issues). There aren't that many cases, but, again, it's something of a mixed bag. Her ruling that a book of Seinfeld trivia was infringing seems questionable (facts aren't copyrightable...), but she also rejected a playwright who claimed copyright infringement over a movie (though, such cases rarely get very far).

So... from all this, we can conclude not very much at all when it comes to the issues we tend to talk about around here.

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Filed Under: sonia sotomayor, supreme court, tech law

20 Comments

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let down, 27 May 2009 @ 3:45pm

an Obama let down for me :( I just had higher expectations.
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Norm, 27 May 2009 @ 4:09pm

Re:
Who did you have in mind?
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Anonymous Coward, 27 May 2009 @ 4:48pm

seinfeld
The point the original presiding judge made was that these weren't facts. They were creative expressions. Facts tend to have to be real.
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Mike Masnick (profile), 27 May 2009 @ 5:16pm

Re: seinfeld
The point the original presiding judge made was that these weren't facts. They were creative expressions. Facts tend to have to be real.

Facts about fictional characters still seem to be facts, though, right?
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ChimpBush McHitlerBurton, 27 May 2009 @ 5:51pm

Re: Re: seinfeld
Mike Wrote: Facts about fictional characters still seem to be facts, though, right?
I guess it depends Mike. Let's say Mickey Mouse fucks Minnie Mouse in the ass during a Disney movie, let's just say...
Is it a "fact" that Minnie got the back-door action? NO. It is a work of fiction, because it was created in the mind of Mr. Disney. And that work of fiction belongs to Mr. Disney...were he to claim it.
Is it a fact that Mr. Disney made Mickey and Minnie do Greek in one of his movies? Yes.

So a book filled with details of all the sexual exploits of Disney characters in Disney movies would most likely run afoul of copyright, while a book detailing the deviant writing habits of Mr. Disney would prolly be ok.
CBMHB
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Jason, 27 May 2009 @ 5:58pm

While I understand the need to discuss her technology rulings (or lack thereof), a MUCH bigger issue is the fact that she (along with Obama) is an outright socialist and has no business being a sitting judge on the highest court in the land.

Check out http://www.youtube.com/watch?v=OfC99LrrM2Q and you hear her joking about her belief that laws and policy are made in the courts. In her college yearbook she has a quote next to her picture where of all of the things she could have stated, she chose to quote Norman Thomas who was a key founder of what is now the ultra liberal, ACLU (an anti-american, communist movement in my opinion).

Yes, we have for more to fear from Ms. Sotomayor than whether she rules in favor of us nerds and geeks. She along with Obama should be run out of office on the first thing smoking.
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Blatant Coward, 27 May 2009 @ 5:59pm

Just the facts.
Fact: Han shot first.
Fact: The town was abuzz over a rich man's dying words, despite that he died alone and no one could have heard them.
Fact: Rachel and Chandler were on a break.
Fact: Peter Parker married Mary Jane.
Fact: Bruce Wayne's parents died after watching the movie "The Mark of Zorro" starring Douglas Fairbanks.

Since facts can be 'retconned' or changed by later interpretations-in a fictional setting-I cannot disagree about that ruling.
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Agonizing Fury, 27 May 2009 @ 6:03pm

Re: Re: Re: seinfeld
But then wouldn't it be a fact to state: In the movie "Back Door Minnie" Mickey Mouse pokes the browneye
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Mike Masnick (profile), 27 May 2009 @ 6:07pm

Re:
I'm sorry, I don't care what political persuasion you come from, but if you claim that the ACLU is a communist organization, you have no credibility.

Partisan politics is lame. Using talking points (calling either Sotomayor or Obama "socialist" is an ignorant talking point). You can disagree with either of them (and I do, quite often), but please, keep the discussion to a reasonable level rather than making yourself look like a fool.
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max (profile), 27 May 2009 @ 6:40pm

Sotomayor is a weak choice
Sotomayor has been overturned in roughly 60% of her cases, she likes to hear herself talk... other judges can't stand to work with this lady because she's obnoxious and offers weak minded arguments. She wants to make law, not uphold/interpret the law. She is a prime example of what is wrong with the judicial system... judges have too much power.
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Anonymous Coward, 27 May 2009 @ 6:51pm

"which are less of an issue that patent and copyright issues"

I think you meant
"which are less of an issue than patent and copyright issues
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Anonymous Coward, 27 May 2009 @ 6:55pm

Re: Re:
If the guy is a fool, then so are millions of other Americans who believe the same. In fact, the ACLU is a group that has one item on its agenda - the destruction of the US society and culture.

Maybe the problem is we're fools for reading this blog.
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Mike Masnick (profile), 27 May 2009 @ 7:14pm

Re: Re: Re:
If the guy is a fool, then so are millions of other Americans who believe the same. In fact, the ACLU is a group that has one item on its agenda - the destruction of the US society and culture.

Yes. If you believe the ACLU is trying to destroy US society and culture then you are an ignorant fool.

I don't agree with a lot of stuff that the ACLU does, but to claim it's trying to destroy US society by protecting civil rights and free speech is an astoundingly ignorant position.

Maybe the problem is we're fools for reading this blog.

If you honestly believe what you wrote above, then yes, you are a fool.

You can disagree with the ACLU (and I do, on many things), but to claim that they're trying to destroy US society is a sign of a total fool. Please, go away.

I'm sick and tired of people claiming that one group or another is "out to destroy" America. These groups have differing views and opinions, but they are all doing what they *think* is best to uphold American values. You can disagree with their beliefs and their tactics, but claiming they are trying to destroy the US is ignorance.
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Anonymous Coward, 27 May 2009 @ 7:43pm

Re: Re: Re: Re: seinfeld
Not really, because that's not a fact. Saying "In the movie" is somewhat of a meaningless statement because you can't really do things in fictional constructs. If I say, "I fucked her in my dreams", it's not a fact, because I didn't really fuck her. Saying "I dreamed about fucking her" would be a fact, because it's a fact about me dreaming, not a fact about me fucking.
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YouAreWrong, 27 May 2009 @ 7:53pm

Tasini
Mike, I actually agree with you on Tasini. I get a lot of flak about it, but I think it's one of the stupidest "wins" for IP creators. Most copyright textbooks now have a note that rips Tasini for 3 reasons:
1) the writers were all freelancers -- they have absolutely no bargaining power, so all licenses by competent attorneys now have a "Tasini clause" where the creator is assigning/licensing all rights that currently or ever recognized by any court. However, since licenses were already in place, there are still Tasini lawsuits all the time from old licenses/contracts (Nat Geo is a huge target of these).
2) most of the writers got almost no money out of the case (like any group/class action)
3) without any way of contacting the authors in all these databases to get a license/assignment, the database companies basically purged all the articles so that they'll all probably be lost forever (which is exactly the OPPOSITE intent of copyright law).
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punditius, 27 May 2009 @ 9:00pm

Re: policy and the courts of appeal
I watched the youtube. You have misunderstood what she said. She wasn't joking. She was stating what she believed from her experience to be a fact.

At the end, she acknowledged that it was not the kind of thing that judges on the courts of appeal normally admit. She also implied that she doesn't endorse the courts of appeal making policy.

It strikes me that her statement about what the courts of appeal do is correct. Whether one believes that courts of appeals could or should do otherwise is a different question.
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punditius pilate, 28 May 2009 @ 3:15am

Re: policy and the courts of appeal
The longer version of her statement available here:
http://www.youtube.com/watch?v=ug-qUvI6WFo
further supports the fact that her commentary was one of the realities of judicial interpretation, rather than her own personal views. Frankly, I find her observations regarding the methodology of the court of appeals vs. district court to be insightful and accurate.
She basically states that the district court is obligated to rule strictly on the facts of a particular case, while the appeals court *may*, at their discretion, consider the broader implications of their ruling. Furthermore the appeals court may (or may not) cite in their ruling whether or not they are considering the bigger picture.

To infer that her comments are somehow supporting the notion that she believes it is the mission of the court of appeals (including the supreme court) to make laws rather than interpret their constitutionality is nothing more than a political perversion of her statements.
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Tgeigs (profile), 28 May 2009 @ 10:43am

Re: Re: Re: Re:
"I'm sick and tired of people claiming that one group or another is "out to destroy" America. These groups have differing views and opinions, but they are all doing what they *think* is best to uphold American values. You can disagree with their beliefs and their tactics, but claiming they are trying to destroy the US is ignorance"

The groups, yes. The people pulling the strings behind the scenes that are involved w/these groups...much more suspect.
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Moose, 28 May 2009 @ 12:26pm

Re: Tasini
There are copyright textbooks?
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Magnetic Cash Gifting, 28 May 2009 @ 12:29pm

Sotomayor
I commend her rise to a Supreme Court nomination but not her interpretation of the Constitution. She is an inspirational story but is too left for my taste.
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