Sotomayor dealt with media access, copyright issues as judge, was reversed in online case

Sotomayor dealt with media access, copyright issue

WASHINGTON — As a federal judge, Supreme Court nominee Sonia Sotomayor dealt with two important media issues — copyrights and access — and was reversed by higher courts when she ruled that freelance writers need not be compensated for online use of their published work, documents released Thursday show.

As a federal trial judge, Sotomayor ruled in 1997 that newspaper publishers were not violating copyrights by putting their freelancers’ work into electronic databases.

A group of writers had sued a number of publications, including The New York Times, Sports Illustrated and Newsday, complaining that their work was being used on the companies’ online sites without compensation.

Sotomayor said she sympathized with the argument by freelancers that Congress never intended for publishers to receive a windfall from new technology, but she said she was limited in how she could rule unless Congress changed the law.

“If today’s result was unintended,” Sotomayor wrote, “it is only because Congress could not have fully anticipated the ways in which modern technology would create such lucrative markets for revisions.”

Sotomayor was reversed by the 2nd U.S. Circuit Court of Appeals. The appeals court said copyright law “does not permit publishers of collective works to license individually copyrighted work for inclusion in electronic databases, and that the publishers therefore were required to negotiate such licenses in their contracts,” Sotomayor said in the documents the White House delivered to the Senate on Thursday.

The Supreme Court upheld the appellate decision. Most large publishers now make the purchase of electronic rights a standard part of contracts with freelance writers.

Sotomayor went on to join the 2nd Circuit. While sitting on that court, she noted in a Senate questionnaire Thursday, she wrote a 2005 decision striking down a ban on journalists publishing the names of jurors disclosed in open court. The case involved former star banker Frank Quattrone’s trial.

The media customarily does not name jurors during a trial. But Sotomayor, writing for a three-judge appeals panel, said U.S. District Judge Richard Owen had run afoul of the right of the media to report what happens in open court when he said the jurors’ names could not be published.

She noted that the jurors’ names had been read in court and any member of the public could have spread the information. “Nothing in the record justified this prior restraint on the publication of information disclosed in a public proceeding,” Sotomayor wrote.

Twelve media organizations, including The Associated Press, had appealed the ban to the appellate level.

“Although sensitive to the district court’s attempt to protect the fairness of the criminal trial, the court reasoned that the order unnecessarily infringed both the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom,” Sotomayor said in Thursday’s questionnaire.

President Barack Obama has nominated Sotomayor as the replacement for retiring Justice David Souter.