Looking Over Judge Sotomayor's Tech Law Record
from the not-much,-but-it's-something... dept
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.