If any of the current file-sharing cases make it to the Supreme Court, Sonia Sotomayor's potential vote would likely go for the music and movie industries, based on a decision she authored in 1998 while she was a district court judge in the Southern District of New York.
In the opinion, she endorsed the idea of high statutory damages as a means to deter future copyright infringement rather than a system based on the actual economic damages to the plaintiff resulting from the defendant's infringement. "[S]tatutory damages must be sufficient enough to deter future
infringements and should not be calibrated to favor a defendant by
merely awarding minimum estimated losses to a plaintiff," Sotomayor wrote in the opinion.
defendants have begun to challenge the statutory damage scheme that
awards copyright holders up to $150,000 per willful infringement. In
music downloading cases, that could translate to $150,000 per song.
the case of Joel Tenenbaum, Charles Nesson - famed Harvard professor
and Tenenbaum's attorney - has argued that the statutory damage scheme
violates the US Constitution's protections against excessive and/or
arbitrary civil damages awards.
If the case ever makes it to the
Supreme Court, I would expect Sotomayor to disagree with Nesson's
arguments, although it's possible that her stance has softened over the
past eleven years.
If not, though, don't expect Sotomayor's
position on copyright infringement damages to upset President Obama or
the Senate Republicans: The Obama administration has submitted
documents in the Tenenbaum case that echo the Bush administration's
position in favor of the statutory damage scheme.