Sotomayor On Tech Issues

Now that the free-for-all surrounding the latest Supreme Court nomination officially has begun, we in the tech community can stand safely off to the side and assess Judge Sonia Sotomayor's record on technology cases.

Fortunately Kenneth Corbin of InternetNews.com has done a bit of digging for an article published today:

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.

Actually, this doesn't strike me as a particularly tech-oriented case. It's really about contract law and sequence of notification as the determinant of responsibility.

Then there's this:

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.

This case is about who owns and should benefit from content. This area of law as it applies to the Internet continues to evolve, so it'll be interesting to see how Sotomayor's rulings evolve. Also, Tasini was heard 12 years ago, during the early days of the commercial Internet. I wonder if Sotomayor's decision would be any different today.

It's doubtful tech issues will come up during the Senate Judiciary hearings, not when much more interesting topics such as Sotomayor's alleged racism and relentless judicial activism compete for sound bites. Who knows, maybe in a weak moment one of the senators will ask a substantive question about technology. We can only hope.