What Sonia Sotomayor Means to Cultural Production and Intellectual Property

Last week Barack Obama nominated Sonia Sotomayor, a federal judge on the U.S. Court of Appeals for the Second Circuit, to The U.S. Supreme Court. Although unfortunate that Mr. Obama draped such a momentous event in the pernicious cloak of identity politics, a Sotomayor confirmation could bring dramatic changes to the reading and application of cyberlaw and intellectual property law.

Although her early career as a corporate lawyer prosecuting trademark infringers for Fendi would lead one to believe she is pro property and copyright owners, and thus pro-original author, at least one of her most important copyright rulings shows an inclination to read into federal statutes in complete disregard of the literalness of the text, and at the expense of property owners and original authors’ rights. This is a concern not only for the intellectual property and cyberlaw conflicts she is sure to face if confirmed to the Supreme Court, but also because this tendency to “read into” texts may very well rear its head in other legal issues of grave concern. Let’s take a look into one case the clearly demonstrates this concern.

In New York Times Co. vs. Tasini, print publishers, without freelance authors’consent, agreed with electronic publishers to place copies of the freelancers’ articles along with all other articles from the periodicals in which the freelancers’ work appeared into three electronic databases. Whether written by a freelancer or staff member, each article was presented to, and retrievable by, the user in isolation, clear of the context the original print publication presented.

Sotomayor, while still a district court judge, ruled that the print publishers had the right to license freelance authors’ work to the electronic publishers, without their consent, under the presumption that the Copyright Act granted such rights. In our view, the U.S. Supreme Court correctly upheld the Second Circuit Court of Appeals’ reversal of her decision, holding that the publishers infringed the authors’ copyrights by reproducing and distributing the articles in a manner not authorized by the authors and not privileged by §201(c) of the Copyright Act. The Supreme Court further concluded that the print publishers infringed the authors’ copyrights by authorizing the electronic publishers to place the articles in the databases and by aiding the electronic publishers in that endeavor.

As an example of how Sotomayor may “read into” statutory texts, we look at Sec. 201 of the Copyright Act. It states:

“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” 17 U.S.C. § 201(c). [bold text added]

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