President Obama's choice today for Associate Supreme Court Justice, Sonia Sotomayor, authored a handful of cyberlaw opinions while on the Second Circuit. All business disputes and a privacy case, but nothing (I hope) that could provide ammunition for the World's Greatest Deliberative Body.
About Judge Sotomayor I will venture this: If confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court. I looked just now and couldn't find where Chief Justice Roberts or Associate Justice Alito had written a cyberlaw opinion while serving as appellate judges. (Then-Judge Alito missed both ACLU v. Reno and Playboy Entertainment Group, Inc. v. United States, a pair of new media cases that were decided initially by special three-judge panels in the Third Circuit.)
I don't think any of the following means much as far was what Judge Sotomayor will do as an Associate Supreme Court Justice. I'm passing it along for conversational purposes only.
Judge Sotomayor wrote the court's 2002 opinion in Specht v. Netscape Communications Corp., an important online contracting case. In Specht, the Second Circuit declined to enforce contract terms that were available behind a hyperlink that could only be seen by scrolling down on a Web page. A “reasonably prudent” user would not have learned of the existence of the terms before responding to an invitation to download free software, Judge Sotomayor wrote.
Judge Sotomayor's opinion in Specht made the point that clicking a button may not be construed as an assent to a contract if the site did not make clear that the act of clicking would signify assent to the terms of a contract. Although a party may not normally argue that his failure to read the terms of a contract made it unenforceable, the court said that there is an exception to this rule “when the writing does not appear to be a contract and the terms are not called to the attention of the recipient.”
“We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms,” Judge Sotomayor wrote. “Plaintiffs were responding to an offer that did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent to those terms. ... [I]n circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.”
Judge Sotomayor also wrote opinions in a pair of domain name cases, Storey v. Cello Holdings LLC in 2003 and Mattel Inc. v. barbie-club.com in 2002.
In Storey v. Cello, the Second Circuit held, per Judge Sotomayor, that an adverse outcome in an administrative proceeding under the Uniform Domain Name Dispute Resolution Policy did not have preclusive effect on a later-initiated federal suit brought under the Anticybersquatting Consumer Protection Act (ACPA).
In Mattel Inc. v. barbie-club.com, Judge Sotomayor authored an opinion holding that a federal court may obtain in rem jurisdiction over a domain name under the ACPA only in a district in which the domain name registrar or other domain-name authority is located. The ruling was based on a straightforward reading of the ACPA. However, at the time, some attorneys held the view that federal court jurisdiction could be created in any federal district merely by "depositing" written evidence of the domain registration with the trial court. Judge Sotomayor rejected that argument.
In Leventhal v. Knapek, No. 00-9306 (2d Cir. Sept. 26, 2000), a privacy case, Judge Sotomayor wrote for the Second Circuit that New York state agency officials and investigators did not violate a state employee's Fourth Amendment rights when they searched the contents of his office computer for evidence of unauthorized use of state equipment.
Finally, while on the federal district court bench, Judge Sotomayor took the first crack at Tasini v. New York Times, 972 F. Supp. 804 (S.D.N.Y. 1997), writing an opinion in a case involving freelance authors' rights to news articles that the New York Times digitized and resold in an electronic database. Judge Sotomayor's judgment in favor of the Times was later reversed by the Supreme Court.
Update: Notwithstanding this record, Judge Sotomayor will be joining a court where she will have very little opportunity to rule on cyberlaw issues.
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I still teach the Specht opinion, and it remains a pretty solid opinion both from a technical and normative standpoint. Thanks for pulling this together. Eric.
Posted by: Eric Goldman | May 26, 2009 at 03:33 PM