NOTE: This post has been updated to clarify then-District Judge Sotomayor’s earlier action.

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The new Justice, Sonia Sotomayor, apparently will not take part in the Supreme Court’s review of a major copyright case, Reed Elsevier, et al., v. Muchnik, et al. (08-103) — a case scheduled for oral argument on Oct. 7.  Sotomayor recused when the Court on Friday issued an order allowing the U.S. Solicitor General to take part in the argument — a clear indication that she will be out of the case.  She participated in other actions as the Court issued the last of its summer recess orders.  (The orders are here.)

Sotomayor gave no reason for her recusal from Friday’s order.  However, it may have been because she was a judge on the Second Circuit Court and apparently took part when that Court refused, on April 15 of last year, to rehear the case en banc.  In another case, separate from the one now before the Supreme Court, she ruled in favor of publishers on individual infringement claims. That was in 1997; her ruling was overturned by the Second Circuit in 1999, and the Supreme Court agreed with that outcome in New York Times Co., et al., v. Tasini, et al. (533 U.S. 483), on June 25, 2001.  The class-action lawsuit, a group of consolidated cases — the litigation that is now before the Supreme Court — arose after the Supreme Court’s Tasini ruling, but then settlement discussions ensued, with Kenneth Feinberg (now President Obama’s corporate compensation “czar”) acting as mediator.  (Thanks to two readers for the facts on Sotomayor’s role in the District Court.)

Without her participation, eight Justices will review the Reed Elsevier case, raising at least the possibility of a 4-4 split — a result that would simply uphold the lower court ruling without an opinion, and without setting a legal precedent.

The key issue in the case is whether Congress has at least partly taken away the power of federal judges to approve settlement of a case, if the settlement involves a claim of copyright infringement for a broad class of litigants.  The settlement here sought to resolve a nationwide dispute over compensation to free-lance authors and photographers when their creative work was included in electronic databases of newspapers and magazines.

After four years of intensive negotiations, the dispute was settled with a deal to compensate all of the free-lancers, in return for a release of all of their infringement claims.  A federal judge approved the settlement, but the Second Circuit ruled that Congress had eliminated the judge’s power to approve class-action settlements that involved release of claims for works that were not registered — claims beyond the jurisdiction of the District Court, according to the Second Circuit.

In the petition filed by publishers, they argued that class-wide releases of all infringement claims were necessary to “restore the integrity of the national archival electronic record of the nation’s magazines and newspapers.”  Solicitor General Elena Kagan has joined in the case for the federal government, arguing that the law limiting federal court authority to decide claims by creators of unregistered works is not a jurisdictional bar.  Most of the free-lancers involved in the settlement supported the publishers’ petition and join in supporting them on the merits.  On April 2, the Court appointed a law professor to brief and argue, as amicus, in support of the Second Circuit ruling.

In others orders Monday, with Justice Sotomayor participating, the Court also agreed to allow the Solicitor General to take part in oral argument in four cases: Alvarez v. Smith (08-351), on the right to a court hearing to challenge a forfeiture order for a drug crime; McDaniel v. Brown (08-559), involving the standard in habeas for judging the weight of evidence; Padilla v. Kentucky (08-651), on the effect of a defense lawyer’s wrong advice on the consequences of a guilty plea, and Pottawattamie County v. McGhee (08-1065), on liability of prosecutors for arranging false testimony.   All but Pottawattamie County will be argued in October; that case is scheduled for Nov. 4.

In another order, the Court refused to expand further the time allotted for oral argument next Wednesday in a major campaign finance case, Citizens United v. Federal Election Commission (08-205).  The Court turned down the plea for one minute of argument time for a lawyer for two groups seeking to argue the case on behalf of ordinary citizens.  The Court earlier had expanded the argument time to 80 minutes to allow lawyers for current and former members of Congress to join in the argument, which is set for 10 a.m. — the first for Justice Sotomayor, and the first oral argument of Solicitor General Elena Kagan.

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