Supreme Court Update: 11/29/10 Order List

November 29, 2010 Supreme Court Update

Greetings, Court fans!

Hope you enjoyed the holiday weekend. The Court returned today with three additions to its docket and two opinions regarding the denial of cert.

The Court granted cert and consolidated AZ Free Enterprise v. Bennett (10-238) and McComish v. Bennett (10-239), both of which address the constitutionality of Arizona's public financing laws, which attempt to level the political playing field. Since the questions presented are similar, we'll provide only those from McComish: "(1) Whether Citizens United v. Federal Election Comm'n, 130 S. Ct. 876 (2010), and Davis v. Federal Election Comm'n, 128 S. Ct. 2759 (2008), require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it penalizes and deters free speech by forcing privately-financed candidates and their supporters to finance the dissemination of hostile political speech whenever they raise or spend private money, or when the independent expenditures are made, above a ‘spending limit.' (2) Whether Citizens United and Davis require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it regulates campaign financing in order to equalize ‘influence' and financial resources among competing candidates and interest groups, rather than to advance directly a compelling state interest in the least restrictive manner."

Following up on what was perhaps its biggest patent law decision in decades last Term in Bilski v. Kapos (08-964), the Court granted cert in another major patent case, Microsoft Corp. v. i4i Limited Partnership (10-290), which asks: "Whether the court of appeals erred in holding that Microsoft's invalidity defense must be proved by clear and convincing evidence." At trial, Microsoft's 2003 Word and 2007 Word software programs were found to infringe i4i's software patent and Microsoft was ordered to pay more than $290M (yes that's an "M"). Microsoft claimed that i4i's patent was invalid, but wasn't able to convince the jury given the high "clear and convincing evidence" standard. A decision lowering the standard would likely have major consequences for all companies involved in patent litigation.

CSX Transportation, Inc. v. McBride (10-235), poses this issue: "Whether the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, requires proof of proximate causation."

Justice Alito dissented from the denial of cert in Harper v. Maverick Recording Co. (10-94), which involved a 16-year-old's liability for copyright infringement based on digitally downloading songs. (Alito may be particularly sympathetic to this young defendant, having just recently raised teens himself.) Copyright law specifies statutory damages of $750 to $30,000 per work infringed, but allows for a reduced penalty of $200 per infringement where an "innocent infringer" – i.e., one who was not aware and had no reason to believe that her acts infringed – is involved." The innocent infringer defense is not available, however, where a notice of copyright "appears on the published phonorecord . . . to which a defendant . . . had access. . . ." 17 U.S.C. § 402(d). The Fifth Circuit found that § 402(d) barred Harper's innocent infringer defense because a copyright notice did appear on the phonorecords from which the digital files were created. For Alito, however, this interpretation of § 402(d) didn't necessarily jive with the intent of § 402(d), which was enacted before the digital age and in a time when a person would have actually seen the physical object with the copyright notice. In those circumstances, the law presumed the person did not qualify as an innocent infringer. A young person downloading a song on the internet, however, would not see the notice. For Alito, therefore, there is a strong argument (even though no circuit has yet adopted it) that § 402(d) doesn't apply and that the innocent infringer defense would be available.

Finally, Justices Sotomayor, Ginsburg, Breyer, and Kagan issued a statement respecting the denial of cert in Gamache v. California (10-5196). After Gamache was convicted of murder and sentenced to death, his counsel learned that the jury was accidentally provided (and repeatedly watched) a videotape of Gamache confessing, which had not been entered into evidence. On appeal, the California Supreme Court found error, but concluded that the error was harmless, noting that the "burden remains with the defendant to demonstrate prejudice under the usual standard for ordinary trial error." At least four Justices disagreed with this statement and so wrote to emphasize that the prosecution bears the burden of demonstrating that constitutional error is harmless beyond a reasonable doubt. However, because it did not appear that the burden of proof would have altered the result in this case (the evidence against Gamache must have been overwhelming), these Justice nevertheless concurred with the denial of cert.

We'll be back with more orders and decisions as they are released.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400