Supreme Court Pick Brings Tech Track Record


Let the vetting begin! Sonia Sotomayor, President Obama’s choice to be the next justice of the U.S. Supreme Court, is heading down a gauntlet of scrutiny where politicians and pundits will spar over her thoughts on things like judicial activism and legislating from the bench.

But outside that echo chamber, several legal experts and bloggers have noted that unlike the sitting Supremes, Sotomayor has a substantial track record on Internet issues.

“About Judge Sotomayor I will venture this: If confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court,” wrote Thomas O’Toole on the TechLaw blog.

Since 1998, Sotomayor has been a judge on the 2nd U.S. Circuit Court of Appeals, where she has ruled on several Internet-related cases, including a contract dispute brought against the Web browser Netscape and its corporate parent AOL.

In the 2002 Specht v. Netscape Communications Corp. case (PDF), Sotomayor denied Netscape’s request for arbitration following a district court ruling that a free browser download plug-in failed to supply reasonable notice about collecting users’ data by burying the terms of service far down the screen on a linked page.

“We agree with the district court that a reasonably prudent Internet user in circumstances such as these would not have known or learned of the existence of the license terms before responding to defendants’ invitation to download the free software, and that defendants therefore did not provide reasonable notice of the license terms,” Sotomayor wrote.

While serving as a judge on the U.S. District Court for the Southern District of New York, Sotomayor ruled in a case brought against the New York Times involving the licensing of freelancers’ work to electronic databases.

In Tasini v. New York Times, Sotomayor ruled in 1997 that publishers were within their rights under the Copyright Act to license back issues containing freelancers’ articles to electronic databases like LexisNexis.

Sotomayor’s ruling in the publishers’ favor was reversed on appeal. The case made it to the Supreme Court, which sided with the freelancers and upheld the appeal ruling by a 7-2 decision in 2001.

Before her first judicial appointment, Sotomayer practiced intellectual property law at the firm Pavia & Harcourt.

The firm’s Web site describes its intellectual property practice as helping rights holders protect their trademarks, patents and copyrights.

“We also develop and manage anti-counterfeiting programs and litigate matters involving famous trademarks and copyrighted works and e-commerce, including designs applied to industrial manufacturing and fashion,” the site says.

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