Legal Commentary

Supreme Court Relist Watch

By John Elwood

The Court may have relisted in Harper v. Maverick Recording Company, 10?94, out of the Fifth Circuit, which presents the question ?Should the inadvertent innocent infringer defense to copyright infringement be eliminated for all Internet music downloading??

I say they ?may? have relisted because it?s possible that the Court is holding the case for Global-Tech Appliances v. SEB, S.A., 10?6, granted on October 12, which presents the question whether the legal standard for the state of mind element of a claim for actively inducing patent infringement is ?deliberate indifference of a known risk? that an infringement may occur, or ?purposeful, culpable expression and conduct? to encourage an infringement. But since that?s patent infringement, and the question presented is not that close, it?s not self evident that they?d hold Harper for it. The situation will become clearer over the next week if the docket is updated (if it?s a ?hold,? the last entry will continue to be the 11/12 conference).

Incidentally, the Court appears once again to have relisted Alderman v. US (involving a commerce clause challenge to a criminal prohibition on felons possessing body armor), Beer v. United States (involving salary adjustments for federal judges), Allen v. Lawhorn and Williams v. Hobbs (both ineffective assistance of counsel claims), all of which I blogged here. Alderman may be on course for a dissent from denial of cert. I wouldn?t be surprised if Allen v. Lawhorn or Williams v. Hobbs yielded a summary reversal, as Wilson v. Corcoran did, but I don?t know if the alleged error in the cases is clear enough to support summary reversal; it?s just that ineffective assistance claims are frequently fodder for summary reversals.

Full post as published by The Volokh Conspiracy on November 15, 2010 (boomark / email).