5/28. On May 26, 2009, President Obama announced his intent to nominate Judge Sonia Sotomayor to be a Justice of the Supreme Court. If nominated by the President, and confirmed by the Senate, she would fill the seat being vacated by Justice David Souter.

Much of the debate over her selection focuses on law and regulation related to race, religion, marriage, and temperatures. This TLJ issue offers no analysis of any of these subjects. Rather, this issue includes stories regarding Sotomayor's published opinions in technology related cases.

When in private practice, Sotomayor represented intellectual property holders. On the District Court and Court of Appeals, she wrote opinions favorable to intellectual property holders. Moreover, she has been particularly gracious to large content aggregators, at the expense of the rights of authors and other creators, and been reversed for doing so.

She has declined to apply the Commerce Clause of the Constitution to protect internet wine sellers from a protectionist state legislature, and been reversed for doing so.

She has given a narrow interpretation to the fair use defense advocated by a movie and television company.

On a wide range of issues of social and cultural issues, she would likely a dependable liberal vote on the Supreme Court. She may set aside plain statutory language to demonstrate what President Obama has called "empathy".

However, in the context of intellectual property, her empathy appears to lie, not with the copy left, or even with the "authors and inventors" who are accorded "rights" by the Constitution, but rather with the large aggregators of copyrighted content. She would likely be a good friend of the record, movie, and publishing industries on the Supreme Court. See, Tasani v. New York Times and Castle Rock v. Carol Publishing.

In the context of e-commerce, her empathy may lie, not with internet consumers, or even internet entrepreneurs, but with the organized interests able to procure protectionist legislation from state legislatures. See, Swedenberg v. Kelly and Granholm v. Heald.

5/28. Judge Sotomayor joined in the February 12, 2002, opinion [PDF] of a three judge panel of the Court of Appeals in Swedenburg v. Kelly, a case involving state regulation of internet wine sales and the commerce clause. Justice Souter joined in the opinion of the Supreme Court, written by Justice Anthony Kennedy, in Granholm v. Heald, which was consolidated with Swedenburg v. Kelly. It was a 5-4 opinion.

Small wineries (including winery owner Juanita Swedenburg) and wine consumers challenged the constitutionality of a New York (NY) state liquor control law, which prohibited out of state wineries from selling directly to New York residents. In state wineries were exempted from the direct sale ban. The state statute at issue was not directed solely at internet sales. However, it had the effect of restricting internet sales. See, Original Complaint.

The U.S. District Court (SDNY) held that the statute violated the Commerce Clause of the Constitution.

The District Court issued its Decision and Order denying NY's motion to dismiss on September 5, 2000. See, story titled "Federal Court Denies Motion to Dismiss in Internet Wine Sales Case", September 8, 2000. On November 12, 2002, the District Court issued its opinion. See, story titled "Court Holds New York's Ban on Internet Wine Sales Is Unconstitutional" in TLJ Daily E-Mail Alert No. 551, November 18, 2002.

The Appeals Court reversed, holding that NY's statute is a permissible exercise of authority granted to states under the 21st Amendment, and rejecting the Commerce Clause challenge. See, story titled "2nd Circuit Rules in Internet Wines Sales Case" in TLJ Daily E-Mail Alert No. 840, February 19, 2004.

That case was Juanita Swedenburg, et al. v. Edward Kelly, et al., U.S. Court of Appeals for the 2nd Circuit, Nos. 02-9511 and 03-7089, appeals from the U.S. District Court for the Southern District of New York, Judge Richard Berman presiding. Judge Wesley wrote the opinion of the Court of Appeals, in which Judge Sotomayor and Newman joined.

The Supreme Court reversed the judgment of the Court of Appeals. See, story titled "Supreme Court Rules in Internet Wine Sales Case" in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005.

That is, Sotomayor joined in holding that states may protect in state wineries from out of state competition. Souter joined in holding that they cannot.

Article I, Section 8, of the Constitution provides that "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States ..." The dormant commerce clause is the judicial concept that the Constitution, by delegating certain authority to the Congress to regulate commerce, thereby bars the states from legislating on certain matters that affect interstate commerce, even in the absence of Congressional legislation.

It is applied to block states from regulating in a way that materially burdens or discriminates against interstate commerce. See, Gibbons v. Ogden, 22 U.S. 1 (1824), and Cooley v. Board of Wardens, 53 U.S. 299 (1851). More recent treatments of the concept include Healy v. The Beer Institute, 491 U.S. 324 (1989), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).

However, it should be noted that internet wine sales are not like other forms of internet commerce, because the 21st Amendment to the Constitution provides, in part, that "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

This case is of great significance because it is the leading Supreme Court case regarding application of the commerce clause to state regulation of internet commerce. Internet commerce is inherently interstate. If someone has a web site, that site is accessible by anyone with an internet connection in any state. And, if a state can regulate internet commerce, then people who engage in e-commerce can be subjected to 50 different, even conflicting, regulatory regimes.

However, the difficulty or impossibility of complying with 50 different regulatory regimes is just part of the policy argument for precluding states from regulating internet commerce. A primary motivation for the imposition of state regulation of internet commerce is protection of in state competitors and intermediaries. Consumers are deprived of choices and lower prices.

States are sovereign entities with general legislative authority. State courts rarely overturn their legislatures protectionist laws. On rare occasions, the U.S. Congress enacts legislation, such as 47 U.S.C. § 230, that provides web sites immunity in a limited class of cases. The free speech component of the First Amendment provides some protection to web sites in a narrow range of other cases. The Equal Protection clause, due to Supreme Court interpretation, provides almost no protection to commercial activity. This leaves the commerce clause the only general provision limiting state regulation of internet commerce.

The Supreme Court's opinion was very narrow. The Supreme Court did not hold that state limitation of direct sales violates the Commerce Clause. It merely held that discriminating in favor of in state businesses violates the Commerce Clause. Under its opinion, the 50 states remain free to impose non-discriminatory, but burdensome and inconsistent, regulatory regimes.

Yet, Judge Sotomayor was not willing to give the Commerce Clause even this limited effect.

If one adopts the legal policy goals of promoting internet commerce, promoting consumer choice, promoting free markets and competition, or promoting an internet free of states' protectionist regulation, then Sotomayor was on the wrong side of this debate.

However, while Souter's replacement by Sotomayor would not bode well for the future freedom of e-commerce, it should also be noted that two members of the Supreme Court's minority in Granholm v. Heald, William Rehnquist and Sandra O'Connor, have also retired. Meanwhile, the other members of the majority, Kennedy, Scalia, Breyer, and Ginsburg, remain on the Supreme Court.

5/28. As a District Court Judge Sonia Sotomayor wrote the opinions of the U.S. District Court (SDNY) in Tasini v. New York Times, a landmark copyright case.

This case concerned the republication of the articles of freelance writers in electronic databases. These articles were originally published in periodicals, such as the New York Times.

The plaintiffs were freelance authors whose articles were previously published under license in these periodicals. The defendants were periodical publishers and owners of electronic databases that republished their articles. None of the plaintiffs were employed by the periodical publications in which their articles appeared. None of the plaintiffs entered into work for hire contracts. All of the plaintiffs registered a copyright in each of the articles at issue. The authors' ownership of the copyright in their individual works was not in dispute. The plaintiffs never licensed their works for publication in electronic databases.

Nevertheless, the periodical publications licensed much of the content of their periodicals, including the plaintiffs' works, to one or more of the electronic database providers. The defendants asserted authority to do so under Section 201(c) of the Copyright Act.

The relevant statute is codified at 17 U.S.C. § 201(c). It provides in full that "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." (Emphasis added.)

The defendants argued that they own the copyright in the "collective works" that they produce and are afforded the privilege, under § 201(c), of "reproducing and distributing" the individual works in "any revision of that collective work".

Sotomayor ruled on cross motions for summary judgment that the electronic databases are a "revision" of the individual periodical issues from which the articles were taken, and hence, granted summary judgment for the defendants.

Sotomayor's August 13, 1997, opinion [MS Word] on summary judgment is published at 972 F. Supp. 804. Her October 29, 1997, opinion [MS Word] on denial of motion for reconsideration is published at 981 F. Supp. 841. The case is Jonathan Tasini, et al. v. New York Times Co., et al., U.S. District Court for the Southern District of New York, D.C. No. 93 Civ. 8678(SS).

Judge Winter, writing for a three judge panel of the Court of Appeals, reversed, holding that the privilege afforded authors of collective works under Section 201(c) does not permit the publishers to license individually copyrighted works for inclusion in the electronic databases.

He was blunt: "The district court is mistaken."

The Court of Appeals' issued its opinion on September 24, 1999. See, amended opinion published at 206 F.3d 161. The case is Jonathan Tasini, et al. v. New York Times Company, Inc., et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 97-9181 and 97-9650. Judge Winter wrote the opinion, in which Judges Miner and Pooler joined.

The defendants filed a petition for writ of certiorari, which the Supreme Court granted. See, story titled "Supreme Court Grants Cert in NYT v. Tasini", Tech Law Journal, November 7, 2000.

The Supreme Court, like the Court of Appeals, held in its June 25, 2001, opinion that the defendants did not have a privilege under Section 201(c) of the Copyright Act to include in electronic databases the freelance articles written for and licensed to print publications. See, story titled "Supreme Court Rules for Authors in NYT v. Tasini" in TLJ Daily E-Mail Alert No. 216, June 26, 2001. That opinion is also published at 533 U.S. 483.

Justice Ginsburg wrote the opinion of the Supreme Court in which Justice Souter and five others joined. It was a 7-2 opinion.

Moreover, the Copyright Office, which is a constant advocate of the interests of publishers, aggregators, and content companies, wrote that Sotomayor misconstrued the Copyright Act.

On February 14, 2001, Register of Copyrights Marybeth Peters wrote a letter to Rep. James McGovern (D-MA). She wrote: "§201(c) cannot be read as permitting publishers to make or authorize the making of public displays of contributions to collective works. Section 201(c) cannot be read as authorizing the conduct at the heart of Tasini. The publishers in Tasini assert that because the copyright law is 'media-neutral,' the §201(c) privilege necessarily requires that they be permitted to disseminate the authors' articles in an electronic environment. This focus on the 'media-neutrality' of the Act is misplaced." See, story titled "NYT v. Tasini", in TLJ Daily E-Mail Alert No. 127, February 20, 2001.

This case was not a dispute between (1) advocates of copyright protection and enforcement, and (2) the copy left, or advocates of less copyright protection and enforcement. Rather, it was a dispute between (1) people who create works subject to copyright, and (2) companies that publish the works of others. Sotomayor ruled for the publishers. In doing so she construed a statute in a manner rejected a unanimous Court of Appeals panel, seven out of nine Supreme Court Justices, and the Copyright Office.

President Obama stated on May 1, 2009, that "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families".

He continued that "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time." See, transcript.

In the Tasini case, Sotomayor interpreted a statutory section. As a Supreme Court Justice, she would play a larger role in giving meaning to the "constitutional traditions" and "constitutional values" referenced by the President.

Copyright is in the Constitution. George Washington and the others at the founding of the nation accorded it the status of "rights". Moreover, these "rights" are given to "authors and inventors" -- not corporate assignees, publishing conglomerates, or database companies. The plaintiffs in the Tasini case were "authors". Also, the plaintiffs were people whose hopes and struggles, whose economic livelihood, whose ability to care for their families, were dependent upon their rights.

Yet, Sotomayor offered a contorted interpretation of a statute to rule against the Constitutional "rights" holders -- against ordinary people trying to make a living. In the Tasini case, she did not uphold either the statute, or the President's vision of empathy.

5/28. Judge Sotomayor wrote the February 27, 1997, opinion of the U.S. District Court (SDNY) in Castle Rock v. Carol Publishing Group, a copyright infringement case in which Sotomayor narrowly construed the fair use defense to find the publisher of a trivia book about the television program titled "Seinfeld" liable to the holder of the copyrights in the TV shows.

Beth Golub wrote a 132 page book titled "SAT: The Seinfeld Aptitude Test" which contained 643 trivia questions about the television program. Carol Publishing Group (CPG) published the book. Castle Rock Entertainment (CRE), which owned the copyrights in the television programs, filed a complaint in the U.S. District Court (SDNY) against CPG alleging copyright infringement. CRE asserted the affirmative defense of fair use.

One would be hard pressed to make the argument that either the TV show or the SAT book "promote the Progress of Science or useful arts". Nevertheless, this case is important for the legal precedent that it sets for copyright law.

Judge Sotomayor, then a District Court Judge, presided in the trial court. She ruled on cross motions for summary judgment in favor of CRE. She also awarded over $400,000 in damages.

She noted that "There is no evidence that the publication of SAT has diminished interest in Seinfeld, or that the profitability of the Seinfeld logo ``has been reduced in any way at all.´´"

She rejected that argument that the book is a collection of facts about the TV show that are not protected by copyright.

Most significantly, she rejected the fair use argument.

17 U.S.C. § 107 sets forth four fair use criteria:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

As for the first prong, Sotomayor wrote that SAT is a transformative work (which conclusion would work in favor of a finding fair use), but that this quality is of diminished importance for fair use analysis because the book is commercial rather than educational.

As for the second prong, "nature of the copyrighted work", Sotomayor wrote that the TV show is fictional and creative, and thus entitled to greater protection. Thus, this factor works in favor of CRE.

As for the third prong, the amount of the work use, Sotomayor noted that the parties' word count estimates ranged from 3.6% to 5.6%. She concluded that "even small amounts of material extracted from an original work can suffice to counter a claim of fair use", and that this factor works in favor of CRE.

However, Sotomayor's analysis of the last prong is the most notable.

She acknowledged that this final factor, the "effect of the use on the potential market", is the single most important element of fair use. She also wrote earlier in her opinion that the SAT book did not diminish interest in the show, and that viewing increased after its publication. But, Sotomayor argued that "the inquiry must extend even to the potential market for as yet nonexistent derivative works".

She continued, "the Court must consider not only whether SAT detracts from interest in Seinfeld, or even whether SAT occupies markets that plaintiff intends to enter; the analysis is whether SAT occupies derivative markets that plaintiff may potentially enter."

She continued that while there is no protectable derivative market for criticism or parody, SAT does not fit into these "intellectual niches". Hence, "The market for such works is one that should properly be left to plaintiff's exclusive control."

But, CRE did not publish or seek to publish in this derivative market. The actual "effect of the use upon the potential market for or value of the copyrighted work" was at most, nothing. The harm to the market of which Sotomayor wrote was entirely fictitious and non-existent.

Sotomayor proceeded to argue that it does not matter. She wrote that "The Court's resolution of the ``potential markets´´ inquiry is not effected by the prospect that plaintiff will choose to leave this particular derivative market unsatisfied."

Sotomayor's "potential market" analysis relied on the holdings of Salinger v. Random House, 811 F.2d 90 (1987) and New Age Publications v. Henry Holt & Co., 873 F.2d 576 (1989). In these cases the Second Circuit afforded broad copyright protection to unpublished works not intended for publication. In fact, Sotomayor here cited and quoted from Salinger.

Sotomayor then added that "there is a meaningful difference, for purposes of the Copyright Act, between a copyright holder's failure to occupy a particular market as a matter of choice, and a failure to occupy such a market as a matter of neglect."

From a policy perspective, Salinger and Holt are among the most untenable Court of Appeals copyright opinions in the books. Among legal scholars, they are two of the most criticized opinions yet to be reversed.

Copyright exists to promote the Progress of Science and useful arts. It does this by providing an economic incentive to create. By giving "Authors and Inventors the exclusive Right to their respective Writings and Discoveries", they can obtain fees for licensing their Writings and Discoveries. Giving writers rights in unpublished works intended for publication, such as a book weeks before its public release date, is fundamentally important. This can be when the economic value of a work is most vulnerable diminishment by infringement. But, there is no creation incenting economic interest to protect in unpublished works not intended for publication. (There may be a privacy interest, but that is not at issue in this case.)

The holdings of Salinger and Holt are particularly detrimental to the public's interest in learning about matters of public concern, as well as to the journalists and historians who seek to write about these matters. TV show trivia books aside, another significant class of unpublished works not intended for publication is correspondence of public figures on maters of wide public interest. Journalists and historians may have copies of the correspondence, but be unable to publish excerpts, because of Salinger and Holt, without first obtaining permission, which often entails surrendering editorial control to the authors or heirs of the authors of the correspondence.

Sotomayor then concluded that three of the four fair use factors weigh in favor of CRE. "Only one of the four statutory factors favors defendant, and then, only by a generous understanding of what it means for a work to be ``transformative.´´ Plaintiff prevails with respect to each of the remaining three factors: Seinfeld is a work of fiction, and such works are accorded special status in copyright law; SAT draws upon ``essential´´ elements of Seinfeld, and it draws upon little else; and, most importantly, SAT occupies a market for derivatives ..."

This case was Castle Rock Entertainment, Inc. v. Carol Publishing Group, U.S. District Court for the Southern District of New York, D.C. No. 95 CIV. 0775(SS). It is also reported at 955 F. Supp. 260.

Judge Sotomayor's judgment was affirmed by a unanimous Court of Appeals panel. However, these opinions are subject to criticism, and have been criticized by leading authorities on copyright law.

For example, Judge Richard Posner of the U.S. Court of Appeals (7thCir) wrote in his May 20, 2002, opinion in Ty v. PIL that "When the book first appeared, the show's producers requested free copies and distributed them as promotional material, 150 F.3d at 136; and the book's blurb told readers to ``open this book to satisfy your between-episode cravings.´´ Id. The court nevertheless held that the book wasn't insulated from copyright liability by the doctrine of fair use. The holding seems to rest in part, and very dubiously we must say, on the court's judgment that the book was frivolous."

Also, Posner and William Landis devoted an entire chapter of their book titled "The Economic Structure of Intellectual Property Law" to criticizing the holdings of Salinger and Holt.

The Court of Appeals case is Castle Rock Entertainment, Inc. v. Carol Publishing Group, U.S. Court of Appeals for the 2nd Circuit. Judge Walker wrote the opinion of the Court of Appeals, in which Judges Van Graafieland and Ned Rakoff (USDC/SDNY) joined. It is also reported at 150 F.3d 132 (1998).

At bottom, at the District Court level, Sotomayor denied fair use status to a work that was transformative, and did nothing to harm the market for the plaintiff's underlying work. She stretched fair use analysis to rule in favor a TV and movie company.

Her analysis rested in part on a line of precedent (Salinger and Holt) that has no grounding in the underlying purposes and incentive structure of copyright protection. She relied upon, and extended, cases that are also used in other contexts to inhibit journalists and historians from producing works of great public interest.

This issue contains the following items:
 • Judge Sonia Sotomayor
 • Sotomayor, Souter, and State Regulation of Internet Commerce
 • Sotomayor, Tasini and the Rights of Authors
 • Sotomayor's Fair Use Opinion in Castle Rock
 • Sotomayor's Opinion in Sprecht v. Netscape
 • Statements Regarding the Selection of Sotomayor
 • Sotomayor's Background

The House will not meet. It will next meet on June 2, 2009.

The Senate will not meet. It will next meet at 2:00 PM on June 1, 2009.

The Tech America will host a news briefing on the Obama administration's cyber security review. RSVP required. For more information, contact Anne Caliguiri at 703-284-5305 or anne dot caliguiri at techamerica dot org or Charlie Greenwald at 202-682-4443 or charlie dot greenwald at techamerica dot org.

Deadline to submit to the U.S. Patent and Trademark Office (USPTO) nominations for its National Medal of Technology and Innovation (NMTI) program awards. See, notice in the Federal Register, January 8, 2009, Vol. 74, No. 5, at Pages 801-802. See also, USPTO release.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding deferral of examination for patent applications. See, notice of extension in the Federal Register, March 9, 2009, Vol. 74, No. 44, at Page 10036. The original deadline was February 27, 2009. See, original notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-118 [38 pages in PDF] titled "Guide to Enterprise Password Management (Draft)".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its request for comments regarding competitive bidding procedures for Auction 86, the broadband radio service (BRS) auction. This item is DA 09-843 in AU Docket No. 09-56. See, notice in the Federal Register, May 12, 2009, Vol. 74, No. 90, at Pages 22166-22170.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the petition for rulemaking [60 pages in PDF] filed by the American Bird Conservancy (ABC), Defenders of Wildlife and National Audubon Society. See, notice in the Federal Register, May 8, 2009, Vol. 74, No. 88, at Pages 21613-21614. See, FCC Public Notice of April 29, 2009 (DA 09-904), February 19, 2008 opinion [PDF] of the U.S. Court of Appeals (DCCir) in ABC v. FCC, and story titled "DC Circuit Vacates FCC Order Regarding Birds and Towers" in TLJ Daily E-Mail Alert No. 1,724, February 27, 2008. This relates to WT Docket Nos. 08-61 and 03-187.

The House will not meet.

The Senate will return from its Memorial Day recess.

Day one of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location?

Deadline to submit comments to numerous financial regulatory agencies regarding their information collection programs, including Suspicious Activity Reports. The agencies are the Department of the Treasury's (DOT) Financial Crimes Enforcement Network (FinCEN), DOT's Office of the Comptroller of the Currency (OCC), DOT's Office of Thrift Supervision (OTS), Federal Reserve Board (FRB), Federal Deposit Insurance Corporation (FDIC), and National Credit Union Administration (NCUA). See, notice in the Federal Register, April 1, 2009, Vol. 74, No. 61, at Pages 14863-14865.

Deadline to submit comments to the Department of Homeland Security's (DHS) Privacy Office in advance of its two day public workshop on June 22 and 23, 2009, titled "Government 2.0: Privacy and Best Practices". This workshop will address operational, privacy, security, and legal issues associated with government use of social media. See, notice in the Federal Register, April 17, 2009, Vol. 74, No. 73, at Pages 17876-17877. See also, story titled "DHS Privacy Office Seeks Comments on Government Use of Social Media" in TLJ Daily E-Mail Alert No. 1,928, April 16, 2009.

Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) to be members of the Department of Commerce's Spectrum Management Advisory Committee (CSMAC). See, notice in the Federal Register, May 6, 2009, Vol. 74, No. 86, at Pages 20922-20923.

The House will return from it Memorial Day recess.

Day two of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location?

8:00 AM - 5:00 PM. Day one of a two day closed meeting of the Defense Intelligence Agency's National Defense Intelligence College Board of Visitors. See, notice in the Federal Register, May 8, 2009, Vol. 74, No. 88, at Page 21666.

9:30 AM. The Senate Homeland Security and Government Affairs (SHSGAC) will hold a hearing on the nomination of Rand Beers to be the Department of Homeland Security's (DHS) Under Secretary for National Protection and Programs. The SHSGAC will webcast this event. See, notice. Location: Room 342, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Lucent Technologies, et al. v. Gateway, Dell, Microsoft, et al, App. Ct. No. 2008-1485, an appeal from the U.S. District Court (SDCal) regarding patent damages. Location: Courtroom 402.

10:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Page 20741. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) "Internet Service Providers: International and Domestic U.S. IP Rules of the Road". The first panel will be titled "Update on United States Issues: Digital Millennium Copyright Act (DMCA), Three Strikes (Graduated Response), and Filtering". The speakers may be Jim Burger (Dow Lohnes), Sarah Deutsch (Verizon), Steve Marks (Record Industry Association of America), and Jeff Lawrence (Intel). The second panel will be titled "Survey of International Issues for ISPs". The speakers may be Christoper Boam (Verizon), Jane Mago (National Association of Broadcasters), and Jim Bouras. For more information, contact Jim Burger at jburger at dowlohnes dot com or Jennifer Ullman Jennifer dot ullman at verizon dot com. The price to attend ranges from $25 to $150. See, notice. Location: Dow Lohnes, 5th floor, 1200 New Hampshire Ave., NW.

8:00 AM - 12:00 NOON. Day two of a two day closed meeting of the Defense Intelligence Agency's National Defense Intelligence College Board of Visitors. See, notice in the Federal Register, May 8, 2009, Vol. 74, No. 88, at Page 21666.

8:30 AM - 1:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Page 20741. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy will hold a hearing titled "Pay to Delay: Are Patent Settlements That Delay Generic Drug Market Entry Anticompetitive?". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on S 424 [LOC | WW] and HR 1024 [LOC | WW], the "The Uniting American Families Act: Addressing Inequality in Federal Immigration Law". The House Judiciary Committee (HJC) has yet to hold a hearing on this bill. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". Location: FCC, Commission Meeting Room.

2:00 - 3:00 PM. The Heritage Foundation will host a panel discussion titled "Unfair Government Competition: A Threat to the U.S. Economy". The speakers will include Sen. John Thune (R-SD) and Rep. John Duncan (R-TN). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Day three of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location?

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda yet again includes consideration of S 417 [LOC | WW], the "States Secret Protection Act", and HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009". See, stories titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The agenda also again includes consideration of the nominations of David Hamilton to be a Judge of the U.S. Court of Appeals (6thCir), Andre Davis to be a Judge of the U.S. Court of Appeals (4thCir), and Thomas Perez to be Assistant Attorney General in charge of the Civil Rights Division. The SJC rarely follows its published agendas. See, notice. Location: Room 226, Dirksen Building.

10:00 AM - 1:00 PM. The National Telecommunications and Information Administration's (NTIA) Online Safety and Technology Working Group (OSTWG) will hold its organizational meeting. The OSTWG was created by Section 214 of S 1492 [LOC | WW]. Part I of this bill is the "Broadband Data Improvement Act"; Part II is the "Protecting Children in the 21st Century Act". It is now Public Law No. 110-385. See, story titled "NTIA Seeks Members for Online Safety and Technology Working Group" in TLJ Daily E-Mail Alert No. 1,863, November 25, 2008. See also, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Page 23846. Location: Federal Communications Commission, 445 12th St., SW.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing on HR 1508 [LOC | WW], the "Sunshine in Litigation Act of 2009". See, notice. The HJC will webcast this event. Location: Room 2237, Rayburn Building.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights and Civil Liberties will hold a hearing on HR 984 [LOC | WW], the "States Secret Protection Act". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host an untitled seminar by Devin Pope (University of Pennsylvania) He is an economist, and author of the paper titled "The Effect of the Internet on Matching Markets: Evidence from Craigslist". Location: FTC Conference Center, 601 New Jersey Ave., NW.

Day four of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location?

Day one of a two day meeting of the Federal Bureau of Investigation's (FBI) Criminal Justice Information Services Division's Advisory Policy Board. This Division administers the Integrated Automated Fingerprint Identification System, the Interstate Identification Index, Law Enforcement Online, National Crime Information Center, the National Instant Criminal Background Check System, the National Incident-Based Reporting System, Law Enforcement National Data Exchange, and Uniform Crime Reporting. See, notice in the Federal Register, April 15, 2009, Vol. 74, No. 71, at Page 17524. Location: Gaylord National, 201 Waterfront Street, National Harbor, MD.

Deadline to submit oppositions to the Federal Communications Commission (FCC) in response to the petitions for partial reconsideration of the FCC's Second Report and Order and Order on Reconsideration (also know as the second internet based TRS order) filed by the Telecommunications for the Deaf and Hard of Hearing, Inc. and the TDI Coalition, and by GoAmerica, Inc. The FCC adopted and released this second internet based TRS order [47 pages in PDF] on December 19, 2009. It is FCC 08-275 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, May 20, 2009, Vol. 74, No. 96, at Pages 23715-23716.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the FCC's notice regarding the National Exchange Carrier Association's (NECA) proposed compensation rates for interstate traditional telecommunications relay service (TRS), interstate Speech-to-Speech (STS) relay service, interstate captioned telephone service (CTS) and interstate and intrastate Internet Protocol (IP) captioned telephone service (IP CTS), interstate and intrastate IP Relay, and interstate and intrastate Video Relay Service (VRS). This is also the deadline to submit initial comments in response to the proposed carrier contribution factor and funding requirement for the Interstate TRS Fund. This item is FCC 09-39 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23859-23860.

Deadline to submit initial comments to the Federal Communications Commission (FCC) Notice of Proposed Rulemaking whether or not it should adopt new Video Relay Service (VRS) reimbursement rates that reflect the cost data in the fund administrator's recent filing with the FCC, rather than continuing the current rates. This item is FCC 09-39 in CG Docket 03-123. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23815-23816.

12:00 NOON - 2:00 PM. The Free State Foundation (FSF) will host a lunch titled "Broadband Nation: Where Does the U.S. Really Stand in the World Rankings?". The speakers will be David Gross (Wiley Rein), Rob Atkinson (Information Technology and Innovation Foundation), Link Hoewing (Verizon), and Christopher McCabe (CTIA). RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org. Location: Congressional Meeting Room North, Capitol Visitor Center.

Day two of a two day meeting of the Federal Bureau of Investigation's (FBI) Criminal Justice Information Services Division's Advisory Policy Board. This Division administers the Integrated Automated Fingerprint Identification System, the Interstate Identification Index, Law Enforcement Online, National Crime Information Center, the National Instant Criminal Background Check System, the National Incident-Based Reporting System, Law Enforcement National Data Exchange, and Uniform Crime Reporting. See, notice in the Federal Register, April 15, 2009, Vol. 74, No. 71, at Page 17524. Location: Gaylord National, 201 Waterfront Street, National Harbor, MD.

5/28. Judge Sonia Sotomayor wrote the October 1, 2002, opinion of the U.S. Court of Appeals (2ndCir) in Sprecht v. Netscape, a case regarding contract formation by software download.

Christopher Sprecht and others filed complaints against Netscape, and its parent corporation, America Online (AOL), alleging that the defendants violated the Electronic Communications Privacy Act (ECPA) and the Computer Fraud and Abuse Act (CFAA) via their free downloaded software.

The ECPA is codified at 18 U.S.C. §§ 2510, et seq. The CAFA is codified at 18 U.S.C. § 1030.

Netscape and AOL asserted that a license agreement covered the software, and that that agreement contained a mandatory arbitration clause. They moved to compel arbitration, and stay the consolidated District Court action.

Judge Sotomayor noted in her opinion that the "plaintiffs could not have learned of the existence of those terms unless, prior to executing the download, they had scrolled down the webpage to a screen located below the download button".

The District Court, Judge Alvin Hellerstein presiding, denied the motion. See, opinion [PDF]. That case was Christopher Sprecht, et al. v. Netscape Communications Corporation and America Online, Inc., U.S. District Court for the Southern District of New York, D.C. Nos. 00 Civ. 4871 (AKH), 00 Civ. 6219 (AKH), and 00 Civ. 6249 (AKH). It is also reported at 150 F.Supp.2d 585.

The Court of Appeals affirmed. Judge Sotomayor wrote that "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. In consequence, plaintiffs' bare act of downloading the software did not unambiguously manifest assent to the arbitration provision contained in the license terms."

This was a simple matter of applying ancient and settled principles of contract formation to web site usage. Sotomayor correctly applied these principles, and has been praised by legal scholars for doing so.

This case was Christopher Sprecht, et al. v. Netscape Communications Corporation and America Online, Inc., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 01-7860(L), 01-7870(CON), and 01-7872(CON), appeals from the U.S. District Court for the Southern District of New York. Judge Sotomayor wrote the unanimous opinion of the Court of Appeals, in which Judges Leval and McLaughlin joined. It is also reported at 306 F.3d 17.

5/28. President Obama discussed his reasons for selecting Judge Sonia Sotomayor for a seat on the Supreme Court on May 26, 2009.

"First and foremost is a rigorous intellect -- a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand." See, statement.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), stated in a release that "Her record is exemplary."

He added that "I believe Judge Sotomayor understands that the courthouse doors must be as open to ordinary Americans as they are to government and big corporations."

Sen. Jeff Sessions (R-AL), the ranking Republican on the SJC, stated in a release that "We will engage in a fair and thorough examination of Ms. Sotomayor's previous judicial opinions, speeches, and academic writings to determine if she has demonstrated the characteristics that great judges share: integrity, impartiality, legal expertise, and a deep and unwavering respect for the rule of law."

He added, "Of primary importance, we must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law, calling balls and strikes fairly without regard to one’s own personal preferences or political views."

Rep. Lamar Smith (R-TX), the ranking Republican on the House Judiciary Committee (HJC), wrote in a statement that "The most important criterion for unelected federal judges is that they decide cases impartially, based on the law and free from personal bias. Any federal judge, especially a Supreme Court Justice, must set aside their personal preferences and decide cases in accordance with Constitutional principles."

Rep. Smith wrote that "I am concerned that Judge Sotomayor's public statements show personal bias based on ethnicity and gender. Judges must never substitute their personal prejudices for the rule of law and the clear meaning of the Constitution. Judge Sotomayor will need to reassure the country that she will set aside her biases, uphold the rule of law and interpret the Constitution as written, not as she believes it should have been written."

5/28. Judge Sotomayor attended Princeton and Yale Law School. She was then a New York state Assistant District Attorney in New York City.

She then worked for the law firm of Pavia and Harcourt. The White House news office released a statement that discloses that "her practice had a significant concentration in intellectual property law, including trademark, copyright and unfair competition issues".

The Constitution, at Article II, Section 2, provides that the President "shall nominate, and by and with the advice of the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court, and all other Officers of the United States ..."

The Constitution then provides, at Article III, that "The judicial power of the United States, shall be vested in one supreme Court, and such other inferior courts as the Congress may from time to time ordain and establish."

The First Congress established the District Courts. The Congress established the Courts of Appeals a century later. The drafters and ratifiers of the Constitution conceived of the Senate as a small consultative body selected by the states. It has long since evolved away from that description. The "Advice and Consent" function has evolved too.

In the case of District Court appointments, the selections, while nominally made by the President, are largely the decision of the Senator or Senators of the President's party from the state in which the District lies. However, some Senators make other arrangements.

At the time of Sotomayor's appointment to the District Court, the state of New York was represented in the Senate by former Sen. Al D'Amato (R-NY) and former Sen. Daniel Moynihan (D-NY). The two had a long running agreement to divide judicial appointments, regardless the party of the President. Although, their shares of appointments varied according to the party of the President. If a Republican were President, and it was Sen. Moynihan's turn to select a Judge, he would forward his pick to Sen. D'Amato, who would forward the pick to the President. If a Democrat were President, and it was Sen. D'Amato's turn to select a Judge, he would forward his pick to Sen. Moynihan, who would then forward the pick to the President. Each Senator then steadfastly supported the picks of the other Senator.

Sotomayor was Moynihan's selection.

Former President Bush nominated her in 1991. The Senate confirmed her in 1992.

Former President Clinton nominated her for a seat on the U.S. Court of Appeals (2ndCir) in 1998.

For most District Court Judges, that position is the final significant position of their careers. For most Court of Appeals Judges, that position is their final significant job. Although, some District Court Judges are elevated to the Court of Appeals, and some Court of Appeals Judges are elevated to the Supreme Court. However, it is very rare for a Judge to go from a District Court to the Supreme Court, either directly, or via a Court of Appeals position.

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