Friday, May 29, 2009

Media Wonk: Will Sotomayor vote for cert. in Cablevision?

Back in January, before President Obama had actually taken office, the Supreme Court asked the Department of Justice to weigh in on whether it should grant cert. in the Cablevision case, in which major copyright owners sought to enjoin the MSO's proposed "remote-storage DVR." Almost six months later, we're still waiting.

Writing on his "Media Wonk" site, Paul Sweeting wonders about the impact of Sonia Sotomayor's nomination to the Court:
[T]wo of the nine justices, Chief Justice John Roberts and Justice Samuel Alito, recused themselves from the case for reasons unstated but presumably because of stock ownership in one or more of the parties.

That left seven justices to decide the case should the court decide to hear it. It takes four votes to grant cert. in a case, and with only seven justices participating it may have been hard to come up with the four votes needed. Thus, the delaying tactic of seeking input from the solicitor general (who, ironically was herself one of the four final candidates for the open seat on the court and probably would have had to recuse herself as well).

As it happens, the justice Sotomayor has been nominated to replace, David Souter, is a noted and self-professed Luddite, who still writes his opinions long hand and has a strong aversion to gadgetry of all kinds and who may not have been keen to take the Cablevision case, especially as both the district and appellate courts got pretty deep into the technical weeds in their opinions as to how the remote DVR system functions.

Just speculating here, but I wonder if Sotomayor, who is clearly comfortable in cyberspace, might provide another critical vote for cert. in Cablevision.

I have no idea whether Sweeting is right. Sotomayor was on the Second Circuit when it decided Cablevision (though she wasn't on the panel). If she disagreed with the decision so strongly, wouldn't she have raised a stink then, calling for en banc and writing a dissent from the denial? And Souter may be a technophobe, but it's not as though he's totally incapable of writing opinions that involve technology. See, e.g., Grokster.

(Disclosure: I worked on the Cablevision case while an attorney at Fox.)

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