Intellectual Property Law

Supreme Court Leaves Info/Law Alone

By Tim Armstrong, Derek Bambauer, and William McGeveran.

Most commentary about the Supreme Court today surely will focus on the controversial Ricci employment discrimination case and its impact on Judge Sotomayor’s confirmation hearings. But the Court also announced two important orders in Info/Law, both concerning decisions that it will not make. By refusing to grant cert. in these cases, the Court lets two very good appellate rulings remain in force.

First, the Court denied cert. in IMS Health v. Ayotte. This case involved data miners’ First Amendment challenge to a New Hampshire law that prohibits the transfer of physicians’ prescribing records for use by pharmaceutical company representatives in their efforts to promote certain drugs to individual doctors. The First Circuit’s thorough decision in the case upheld the law on two distinct grounds: the transfer of the records was conduct rather than speech; and anyway if it was commercial speech the law satisfied the narrow tailoring requirements of the Central Hudson test. There is somewhat mixed case law on the First Amendment status of data mining, but I think the pro-privacy side is winning overall. (For more on this complex topic, see Neil Richards’ great law review article). While it might have been nice if the Supreme Court took the case and delivered the death blow to data miners’ constitutional arguments, that would have been very risky; it is better to leave Judge Selya’s strong opinion — and New Hampshire’s law, imitated by some other states — in place. (EPIC has more information on this one.)

The second decision is close to my co-blogger Tim’s heart, as he has described before. The Supreme Court refused to review the Second Circuit’s opinion finding that Cablevision’s proposed new DVR system does not violate copyright law. (Public Knowledge has more discussion on this one.)

(And by the way, if you share my side interest in election law, today’s announcement that the Court will hear more arguments in the campaign finance case about the Hillary Clinton documentary rather than deciding it — and consider much broader issues about corporate political donations — is also a bombshell. Probably a very bad sign for advocates of campaign finance regulation. Lots of big news other than Ricci today!)

Full post as published by Info/Law on June 29, 2009 (boomark / email).