Pissed at Sotomayor

Of course Judge Sotomayor should be confirmed in the post to which President Obama has appointed her. But that doesn't mean our Senators shouldn't ask her some sharp questions first.

In 2001, the United States Court of Appeals for the Second Circuit ruled on an appeal from an award of $813,724.25 in attorney's fees to HyperLaw in the case of Hyperlaw v. West. The 2nd circuit vacated the district court's award of attorney's fees and remanded the case. The 3-judge panel reaching this decision consisted of judges, Straub, Sotomayor, and Spatt. The opinion, by Judge Straub, included the following statement as footnote 8:

The District Court noted that, in light of West's "violation" of 17 U.S.C. § 403, "HyperLaw's action vindicated the public interest in wide dissemination of federal judicial opinions." We differ with this statement. The public interest that copyright law is designed to promote is the wide availability of creative works. See Fogerty, 510 U.S. at 527 ("[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works . . . ."); id. at 534 n.19 (goal in awarding fees is to be "faithful to the purposes of the Copyright Act"). Judicial opinions are decidedly not creative works.

But as I noted at the time in a post to the cni-copyright forum,

The Court of Appeals is wrong in this statement. The district court was right. The Court of Appeals fails to distinguish the purpose of copyright law from the purpose of the copyright monopoly (which is only one part of copyright law.) Copyright's purpose is to enlarge the public domain in useful writings. "Useful" here means that they can be productively "used" for learning, entertainment, further production of new works, or other purposes. The purpose of the copyright monopoly (a prominent feature of copyright law, but not its only feature) is to encourage authors to release original writings to the world so that they will enlarge the public domain. Hence the monopoly is in theory awarded only to those works that would not be released but for the benefits of the monopoly. Since judicial opinions must be written and released in any case, it makes no sense to burden the public by granting anyone a monpoly in them. Hence the copyright LAW explicitly withholds the copyright MONOPOLY from these works, and injects them into the public domain at once. But this witholding of the monopoly still works the law's purpose of enlarging the public domain. Hence the district court was right that Hyperlaw was defending the public's interest by defending the public domain. This is true regardless of whether the circumstances warrant an award of attorneys' fees or not. Hyperlaw defended the public domain by not allowing the ways of the law-publishing trade to expand by stealth the subject matter of copyright beyond its statutory limits.

The Hyperlaw decision defended the public domain in more than judicial opinions. My understanding of West's position is that it claimed that its editing cast a pall of creativity over its reports. If that is true, then if West had prevailed, slight editing would have been used by others as an excuse to monopolize other government documents and copyright-expired expression: This is precisely the outcome that the 2nd Circuit, in its Batlin decision, stated was unacceptable. Indeed it's hard to see how the Batlin decision and footnote 8 in the Hyperlaw attorneys'-fee reversal issued from the same court.

Judge Sotomayor voted to deny HyperLaw attorney's fees. Twice. She sided with the Big Money against the little guy. And the grounds for it, expressed in footnote 8 of the first opinion, were clearly erroneous. Though footnote 8 in the first opinion was written by Judge Straub, not by Judge Sotomayor, Judge Sotomayor put her name to it. I hope the Senators ask her why.