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Liberal Supreme Court Justice Sonia Sotomayor declined to recuse herself from multiple copyright infringement cases involving book publisher Penguin Random House despite having been paid millions by the firm for her books, making it by far her largest source of income, records show.
In 2010, she got a $1.2 million book advance from Knopf Doubleday Group, a part of the conglomerate. In 2012, she reported receiving two advance payments from the publisher totaling $1.9 million.
In 2013, Sotomayor voted in a decision for whether the court should hear a case against the publisher called Aaron Greenspan v. Random House. Greenspan was a Harvard classmate of Mark Zuckerberg’s who wrote a book about the founding of Facebook and contended that Random House rejected his book proposal and then awarded a deal to another author who copied his book and eventually turned it into the movie The Social Network.
In 2017, Sotomayor began receiving payments each year from Penguin Random House itself, which continued annually through at least 2021, the most recent disclosure available, and totaled more than $500,000. In all, she received $3.6 million from Penguin Random House or its subsidiaries, according to a Daily Wire tally of financial disclosures.
In October 2019, children’s author Jennie Nicassio petitioned the Supreme Court to hear her lawsuit against Penguin Random House alleging that the book publisher had copied her book by selling one that was nearly identical. On the same day that the petition was distributed to the justices, Sotomayor received a $10,586 check from the publisher.
On February 24, 2020, the Supreme Court voted not to hear the case, denying the “writ of certiorari” and meaning that the case would remain where it left off — with a circuit court having found in the publisher’s favor. Sotomayor’s next check, coming in May of that year, was her largest ever from the parent company, at $82,807.
The Supreme Court does not reveal how individual justices vote when it comes to “cert,” but it does note when they recuse, which Sotomayor did not.
Fellow then-justice Stephen Breyer, by contrast, did recuse from the 2013 and 2020 Penguin cases. His wife is related to the family that founded a company, Pearson, which owned a stake in the publisher, and the couple held stock in Pearson: $1 million to $5 million in 2013, shrinking to $100,000 to $250,000 by 2020. Breyer also wrote books for the publisher, though he earned a much smaller amount than Sotomayor.
Sotomayor’s Penguin Random House money dwarfed the pay that she received from the court and made up all of her reported outside earned income, with the exception of $6,000 in payments from groups — some of which related to her book — and a $5,000 “option fee,” which typically relates to books, according to the disclosures. The publisher also footed the bill for her to speak to various groups. Breyer, by contrast, would typically have those groups foot the bill.
Lawyers for Nicassio made a compelling argument that her case was worthy of being taken up by the Supreme Court. Nicassio wrote a book called “Rocky” which “tells the story of a little evergreen tree named Rocky who dreams of becoming the Rockefeller Center Christmas tree and embarks on an adventure toward that goal” against all adversity, getting advice from a mentor and facing attack by other plants, they wrote. Penguin Random House then published a book called “Albert” in which all of the same occurs, with the name of the Christmas tree changed. The lawyers said “Albert” even lifted key pieces of language from “Rocky,” and that the publisher had legally conceded that the work was copied.
The lawyers said that the Third Circuit found against Nicassio anyway because of a rule used in a handful of circuits in which a work is not considered wrongfully copied if similar elements would “naturally flow” from a “simplified version of the original plot.” In other words, taking for granted that there is a puny evergreen that wants to become the Rockefeller Center Christmas tree, it would not be surprising that multiple authors would each imagine the tree facing adversity — setting aside the obvious similarities of the premise itself.
The rule tightly construing what constitutes copyright infringement created a problem that was ripe for resolution by the Supreme Court, the lawyers argued, because the rule used by the Third Circuit was “radically different” from the one used by other circuits. “In the majority of the Circuits, the opposite outcome would have occurred,” they wrote. A Supreme Court ruling would serve to unify the understanding of the law.
Penguin Random House and Viacom — which was also sued by the author because “Albert” was also made into a movie, meaning others seemingly took Nicassio’s idea and then made far more money off of it than she did — did not file any motion in response to the petition for the Supreme Court to hear the case.
The case being heard by the high court would be of significant concern to publishers because it could set a precedent that could open the floodgates to many other copyright infringement suits against them.
The Supreme Court did not return a request for comment.
Sotomayor, who joined the court in 2009, is a prolific author, pumping out the memoir “My Beloved World” and children’s books such as “Turning Pages: My Life Story;” “A Judge Grows In the Bronx;” “Just Ask! Be Different, Be Brave, Be You.” Her latest, “Just Help! How to Build a Better World,” was published in 2022, after the most recent financial disclosure, by a Penguin Books imprint.
The findings come amidst a seemingly coordinated push in the media accusing a slew of conservative justices of misconduct related to their financial disclosures, such as Justice Clarence Thomas taking trips financed by a wealthy conservative friend. Fix The Court, a nonpartisan group that has long watchdogged Supreme Court finances and which compiled some of the financial disclosures used in The Daily Wire’s analysis, pointed out that Sotomayor failed to disclose six trips in 2016 funded by outside groups, before later correcting her disclosures.
Fix The Court has criticized the conservative justices on financial disclosures more than anyone has, but even it said that media had overreacted with stories about right-leaning justices this month, calling an issue with Justice Neil Gorsuch selling a house misleading and saying breathless findings about Chief Justice John Roberts’ wife working as a legal recruiter “much ado about nothing.”