Thursday, October 08, 2009

Coverage of Yesterday's Supreme Court Argument

I will have more to say later on my own impressions of yesterday's oral argument at the Supreme Court in Reed Elsevier v. Muchnick. (Quickly: Attending the hearing along with my son Jacob, and with attorney Charles Chalmers and his wife Laurel, was an incredible experience. I was struck by the acuity all six justices who posed questions -- including sharp insights from a couple of unexpected sources.)

I also will comment down the road on what happened yesterday at district court in New York: the new target of the Google settlement parties to have a revised deal together next month.

Here are quick links to the Reed Elsevier v. Muchnick coverage I have read:

* Lyle Denniston at SCOTUS Blog: "Analysis: Copyright settlement may be in doubt"

* Exclusive Rights (a copyright law blog): "Supreme court hears oral arguments in Reed Elsevier"
The author of this post -- presumably attorney Shourin Sen -- was working from the transcript and didn't know at least some of the background, as he wrote: "Justice Sotomayor, who was as an intellectual property practitioner before being appointed to the Southern District of New York, did not ask a question." Sotomayor was not at the hearing -- she had recused herself.

* C.E. Petit at Scrivener's Error: "GBS Update"
Petit correctly calls Reed Elsevier v. Muchnick "the elephant in the room."


Anonymous Anonymous said...

When do we expect the Justices to render a decision based on yesterday's oral arguements?

11:07 AM  
Blogger Irv Muchnick said...

Possibly as early as December. Definitely before the term ends in the spring.

12:02 PM  
Anonymous Moxie said...

If there's a 4-4 split, it will be announced much sooner, since there would be no decision (thus upholding the Second's ruling by default) & thus no time spent writing opinions.

Irv, did you notice that when posted its analysis yesterday, they referred to the case as Reed Elsevier v. Munchkin?
They fixed it later.

3:48 PM  
Blogger Irv Muchnick said...

No, Moxie, I did not see the typo with my name. Must have been fixed already. But Lyle Denniston's piece was very good.

4:06 PM  
Anonymous Moxie said...

My initial impression from reading the transcript (which I did before reading the analysis) was that their are not 5 justices who are likely to say that this is not jurisdictional.
And thus, would rule in favor of the Second om the rule presented.

After reading it all again: There does appear to be some sentiment that this issue should have been raised pre-settlement & can't be addressed at the appeals stage. So, there could be a decision that, on this technicality, the Second did not act properly with its sua sponte ruling & should proceed with reviewing the Objectors' concerns. But since this issue wasn't addressed in the question that was presented, I don't know how much lattitude the Supreme Court would have to make a ruling in this direction. Irv, perhaps your lawyer could offer an opinion on this?

Also, I think I see why this case needed 9 conferences before cert; likely as many as three divisions on just how the actions of the lower courts should be addressed.

6:38 AM  
Blogger Irv Muchnick said...

I don't think I can make a responsible guess based on what I saw in oral argument. (For one thing, you never know how important the oral argument is; the questions raised by the justices are really best understood as a conversation among themselves.) I'll say only this: Deborah Jones Merritt, the amicus defending the Second Circuit ruling, was the star of the hearing. Charles Sims, on behalf of lead petitioner-defendant Reed Elsevier, and Assistant Attorney General Ginger Anders got roughed up quite a bit in the questioning by the justices.

7:55 AM  

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