Tuesday, May 26, 2009

Obama picks IP litigator for High Court; only 8 justices for Tasini redux?

National Journal's Tech Daily Dose has the scoop. In sum, from 1984-1992 Judge Sotomayor was an associate and then partner at Pavia & Harcourt, a NY boutique that represents rights owners:
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. Our attorneys have developed and managed enforcement programs at the national and international levels for trademark and copyright owners in fields ranging from video games to high fashion clothing and accessories. We have successfully brought civil actions against counterfeiters and infringers of trademarks and copyrights, we have executed civil seizure orders throughout the United States and we have obtained judgments for damages and injunctive relief.
Language like that isn't going to thrill my friends on the copyleft. According to her official bio, Sotomayor's "focus at the firm was on intellectual property issues and international litigation and arbitration of commercial and commodity export trading cases."

The Dose also notes that Sotomayor handled the Tasini case while on the District Court, ruling in 1997 that newspapers and electronic databases were within their rights under 17 U.S.C. § 201(c) to reproduce freelancers' articles. Judge Sotomayor's opinion was reversed by the Second Circuit, and the Supreme Court later upheld the court of appeals' decision. This history has implications should Sotomayor be confirmed. The Tasini case is headed back to the Supreme Court for a second time in the fall (now as Reed Elvesier, et al., v. Muchnick, et al.), and I believe Sotomayor's recusal would be required, leaving only 8 justices to decide the case. [UPDATE: a knowledgeable lawyer tells me the cases are actually separate, and thinks Sotomayor would not be required to recuse.]

If anyone has additional information about Sotomayor's experience at Pavia & Harcourt, or about her copyright opinions, please respond in the comments or email me at copyrightsandcampaigns [at] gmail.com.


  1. One example is the decision by the 2nd Circuit upholding a District Court decision rendered by Ms. Sotomayor in:

    castle rock entertainment, inc. v. carol publishing group

  2. Yes -- see my post here: http://copyrightsandcampaigns.blogspot.com/2009/05/judge-sotomayor-on-factexpression.html


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