Saturday, August 8, 2009

Justice Sotomayor and IP

The new 111th justice has minimal IP background. She worked with some IP issues as a young law associate in private practice in New York. Her most prominent IP case while on the federal bench in New York, Tasini v. N.Y. Times, turned out badly for her. She sided with the N.Y. Times in permitting the paper to republish in different medium without permission the print submissions of freelance writers. This unfortunate decision in favor of big publishing and against authorship rights was resoundly overtuned on standard infringement analysis by the Second Circuit. The appellate decision was strongly affirmed in a 7-2 majority by the Supreme Court (in an opinion authored by Justice Ginsburg).

Justice Sotomayor's modest connection to IP will not pay benefits this term as the Supreme Court grapples with significant IP cases. At bat on October 7th, the Court hears argument regarding the interesting copyright issue in Reed Elsevier, Inc. v. Muchnick relating to limits on subject matter jurisdiction in a copyright case under Sect. 411(a). On deck is everyone's favorite power slugger In re Bilski, a case that promises to define the scope of patent protection for process inventions.

Here's hoping that the 111th justice is a quick learner. More importantly, here's hoping that Justice Sotomayor develops some IP nuance. Remember that the purpose of IP is to advance art and science (Art. I, sect. 8, cl. 8 of the U.S. Constitution). IP monopoly power should not focus on protecting big time publishers such as the N.Y. Times over creative authors.

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