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INTRODUCTION

Amicus' Interest In This Action

Amicus Matthew Bender & Company, Inc. has long been one of this country's preeminent publishers of legal secondary literature. Its titles include such well known treatises as Moore's Federal Practice, Nimmer on Copyright, Collier On Bankruptcy, and Weinstein's Evidence. Matthew Bender is in the process of commercially releasing collections of judicial opinions on CD-ROM in conjunction with many of its titles, as part of its Authority From Matthew Bender electronic library. Matthew Bender is including in those judicial opinions, where applicable, information about the location of page breaks in the version of the opinion appearing in reporters published by appellee West Publishing Company. Matthew Bender provides this information via the conventional shorthand of "star pagination."

In light of the foregoing, the sound development of copyright law pertaining to star pagination directly affects Matthew Bender's interests. Matthew Bender therefore has a demonstrably strong interest in the proper resolution of this action.

Matthew Bender's Efforts To Vindicate Its Use Of Star Pagination; West's Attempts To Thwart Matthew Bender's Efforts Through Assertion Of Non-Meritorious Subject Matter Jurisdiction Defenses

As it does with respect to the proposed use of star pagination at bar by appellant Oasis Publishing Company, West erroneously contends that Matthew Bender's use of star pagination to West reporters infringes West's copyrights in the arrangement of judicial opinions in its reporters. Moreover, prior to the commercial launch of Matthew Bender's star-paginated products, West threatened to initiate suit against Matthew Bender if it included star pagination in its collections of judicial opinions.

To protect itself against West's threat of litigation, Matthew Bender brought two declaratory judgment actions in the Southern District of New York (where Matthew Bender is headquartered), seeking declarations that its use of star pagination does not infringe any West copyright or, in the alternative, is noninfringing because it is a fair use and by reason of any other valid defense to infringement. See Matthew Bender & Co., Inc. v. West Publishing Co., 39 U.S.P.Q.2d 1079, 1083-84, 1086-87 (S.D.N.Y. 1996).

Despite the facts that (1) Matthew Bender is commercially distributing products with star pagination to West reporters, and (2) West contends that Matthew Bender's use of star pagination in those products infringes West's copyrights, West moved to dismiss Matthew Bender's declaratory judgment actions for lack of subject matter jurisdiction on the grounds that they do not involve justiciable controversies. Specifically, West argued to the Southern District of New York that Matthew Bender could not prove (1) that it had a reasonable apprehension of litigation, and (2) that it had an "immediate intention and ability" to produce an infringing product. Id. at 1082-1088.

After extensive discovery, briefing and oral argument on the jurisdictional issue, the court denied West's motions, see id. at 1082, as well as West's subsequent motion for reconsideration or interlocutory review. Nonetheless, West continues to assert the lack of subject matter jurisdiction in Matthew Bender's declaratory judgment actions, most recently in an answer filed on June 10, 1996. See Answer &para 1, Matthew Bender & Co. v. West Publishing Co., 95 Civ. 4496 (JSM) (S.D.N.Y., filed 6/10/96) ("West . . . [d]enies that the Court properly may exercise subject matter jurisdiction over this action, and states that Plaintiff has failed to allege the existence of a case or controversy as required by Article III, Section 2 of the United States Constitution.").

West's Diametrically Contrary Actions At Bar To Attempt To Stipulate To Subject Matter Jurisdiction In Order To Obtain An Advisory Opinion ¶

In the instant action, West has taken a stance concerning justiciability that is directly at odds with the position that it has consistently advanced to the Southern District of New York. In order to obtain an advisory ruling from this circuit regarding a hypothetical product, West has attempted to stipulate to subject matter jurisdiction at bar once this action was transferred to a Minnesota court. A comparison of West's actions in response to Matthew Bender's New York declaratory judgment actions with its stance in the instant case suggests that West's simultaneous assault on jurisdiction elsewhere and attempted stipulation to jurisdiction here is based on a deliberate strategy to confine examination of its alleged copyright in star pagination to courts in the Eighth Circuit.

Oasis initiated this suit against West in the United States District Court for the District of Florida, seeking a declaration that West does not have a copyright in the page numbers contained in Florida court decisions published in West's Southern Reporter and that Oasis' intended use of star pagination to West's Southern Reporter in Oasis' planned CD-ROM product would not infringe West's copyright. See generally Complaint, A-4775. West responded to Oasis' complaint by moving to dismiss the declaratory judgment claim for lack of subject matter jurisdiction on the ground that the case did not present a justiciable controversy and, alternatively, to transfer the action from Florida to the District of Minnesota. See West's Memorandum of Law in Support of Defendant's Motion to Dismiss at 12-18.[FNR1]

West's motion to dismiss for lack of a justiciable controversy advanced arguments that were similar to those that West made in Matthew Bender's New York actions. For example, West claimed that because Oasis had not begun production of its product, e.g., by beginning to obtain the pertinent judicial opinions, Oasis had not demonstrated an "immediate intention and ability" to manufacture the allegedly infringing product. Id. at 14-15. West further argued that Oasis had presented no evidence to prove that it had a "reasonable apprehension of litigation." Id. at 16.

Before the Florida court ruled on West's motion to dismiss, it granted West's motion to transfer the case to Minnesota. See Order, dated May 31, 1995.[FNR2] Once there, West withdrew its motion to dismiss for lack of a justiciable controversy. It did so even though not a single new fact had transpired pertaining to either Oasis' preparations to produce an infringing product or Oasis' apprehension of litigation.

But West did not simply withdraw its motion. Rather, it entered a stipulation in which it dismissed "with prejudice" from its Answer the affirmative defense that "There is no subject matter jurisdiction in this Court for the declaratory relief claim as there is no justiciable controversy," and all denials in its Answer based upon that defense. See Stipulation and Order, filed January 12, 1996, ¶ 1.[FNR3]

After West attempted to stipulate to jurisdiction, the parties submitted cross-motions for summary judgment on Oasis' copyright declaratory judgment claim. Just four weeks after oral argument, West's apparent strategy to obtain a favorable opinion from its forum-of-choice paid off. The court below followed West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987), and granted West's motion for summary judgment, despite the fact that the West v. Mead decision has been denounced by copyright scholars,[FNR4] the U.S. Copyright Office[FNR5], and the U.S. Department of Justice.[FNR6] In rendering its opinion, the court below never examined the existence of subject matter jurisdiction.

On appeal, neither party to this action is interested in discussing the threshold jurisdictional issue of whether this case poses a justiciable controversy. Oasis at least has consented to Matthew Bender addressing the issue as an amicus. West, by contrast, persists in trying to cover up its attempted manipulation of this Court's jurisdiction by refusing to consent to Matthew Bender briefing the issue. See Letter of Joseph Musilek to Elliot Brown, dated July 22, 1996 ("West Publishing Company, like Oasis, has no objection to Matthew Bender filing an amicus curiae brief in the Eighth Circuit on the merits of the appealed issues. However, West does not consent to an amicus brief on any jurisdictional or justiciability issue.") (copy attached as Exhibit B to Matthew Bender's Motion To File Brief Amicus Curiae, filed concurrently).

ARGUMENT
THE INSTANT CASE SEEKS AN ADVISORY OPINION WITH RESPECT TO A HYPOTHETICAL PRODUCT; ACCORDINGLY, THE COURT BELOW LACKED SUBJECT MATTER JURISDICTION OVER THIS ACTION

This Court Has An Obligation To Consider Subject Matter Jurisdiction, Even If The Parties Do Not

This Circuit has recognized that it is proper for an amicus curiae to challenge subject matter jurisdiction even "though [the issue is] not raised by a party, since subject matter jurisdiction cannot be waived or conferred by consent." Middle South Energy, Inc. v. Arkansas Public Serv. Comm'n, 772 F.2d 404, 409 n.13 (8th Cir. 1985), cert. denied, 474 U.S. 1102 (1986) (considering subject matter jurisdiction challenge raised by amicus). Indeed, "every federal appellate court has a special obligation to `satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review,' even though the parties are prepared to concede it." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S. Ct. 1326, 1331 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 55 S. Ct. 162, 165 (1934)) (emphasis added); see also Boatmen's First Nat'l Bank v. Kansas Public Employees Retirement System, 57 F.3d 638, 640 n.4 (8th Cir. 1995) ("subject matter jurisdiction is not waived if not raised in the trial court, as we are empowered and required to consider the issue sua sponte if need be"). "It is to be presumed that a cause lies outside of [a federal court's] limited jurisdiction . . . and the burden of establishing the contrary rests on the party asserting jurisdiction[.]" Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, ___, 114 S. Ct. 1673, 1675 (1994) (citations omitted); see also Newhard, Cook & Co. v. Inspired Life Ctrs., Inc., 895 F.2d 1226, 1228 (8th Cir. 1990) ("It is incumbent upon . . . the party seeking to invoke federal jurisdiction, to establish jurisdiction by a preponderance of the evidence.").

The Eighth Circuit's Test For Measuring The Existence of A Justiciable Controversy In A Copyright Declaratory Judgment Action Requires The Plaintiff To Show Both A Reasonable Apprehension Of Litigation And Preparations To Publish The Allegedly Infringing Product

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The Declaratory Judgment Act authorizes federal courts to declare the rights of interested parties "[i]n a case of actual controversy." 28 U.S.C. § 2201. The requirement of an "actual controversy" is imposed by Article III of the Constitution. . . . In general, an actual controversy is "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." . . .

In patent and copyright cases, there is an actual controversy if "defendant in the declaratory judgment lawsuit has either expressly or impliedly charged the plaintiff with infringement." Sherwood Medical Indus., Inc. v. Deknatel, Inc.., 512 F.2d 724, 727 (8th Cir. 1975). The defendant copyright owner must have evidenced its intent to enforce a copyright, usually by a charge or threatened charge of infringement . . . . And the declaratory judgment plaintiff must have engaged in "present activity which could constitute infringement or concrete steps taken with the intent to conduct such activity." BP Chemicals Ltd. v. Union Carbide Corp., 4 F.3d 975, 978 (Fed. Cir. 1993). In a copyright case, "plaintiff must show that it has actually published or is preparing to publish the material that is subject to the defendant's copyright [in a manner that] places the parties in a legally adverse position." Texas v. West Pub. Co., 882 F.2d 171, 175 (5th Cir. 1989), cert. denied, 493 U.S. 1058 . . . . ; see also Wembley, Inc. v. Superba Cravats, Inc., 315 F.2d 87, 90 (2d Cir. 1963) ("where there is not actual manufacture, use or sale, and no immediate intention and ability to practice the invention, there is no justiciable [patent] controversy").

Diagnostic Unit Inmate Council v. Films Inc., 88 F.3d 651, 653 (8th Cir. 1996) (some citations omitted).

The Instant Action Is Not Justiciable Under The Governing Eighth Circuit Standard

In light of the foregoing test, in order to establish the existence of subject matter jurisdiction the burden is on Oasis to show both that West had "evidenced its intent to enforce a copyright" (i.e., that Oasis had a reasonable "apprehension of litigation") and that Oasis has taken "concrete steps" to make an infringing product. Id. Oasis has not made preparations to publish an infringing work. Its declaratory judgment action is therefore not justiciable and there is thus no subject matter jurisdiction over Oasis' declaratory judgment action.

The First Prong Of Justiciability is Satisfied, As The Totality Of Circumstances Support Oasis' Reasonable Apprehension Of Litigation

In its motion to dismiss this declaratory judgment claim for lack of a justiciable controversy, West argued to the Southern District of Florida that Oasis could not prove that it had a "reasonable apprehension of litigation." See West's Memorandum of Law in Support of Defendant's Motion to Dismiss at 16. Oasis replied that it had a reasonable apprehension of litigation based on the following: (1) West made a veiled threat of litigation in correspondence with Oasis; (2) West had sued other parties based on "similar issues regarding pagination"; and (3) in response to Oasis' inquiry regarding West's copyright claims, West had offered to discuss with Oasis a license agreement for star pagination. See Oasis Publishing Company's Memorandum of Law in Opposition to Defendant's Motion to Dismiss 10-11.[FNR7]

West maintained that none of those three facts supported a finding that Oasis had a reasonable apprehension of litigation, contending that West's litigations against third parties were irrelevant and characterizing West's veiled threats as innocuous statements. See West's Memorandum of Law in Support of Defendant's Motion to Dismiss at 16-18; West's Reply Memorandum of Law in Support of Its Motion to Dismiss at 6-9.[FNR8]

Matthew Bender submits that Oasis did have a reasonable apprehension of litigation; indeed, in light of West's veiled threats and history of suing competitors over the issue of star pagination, it would have been naive for Oasis to think that West would not attempt to enforce its alleged copyright interest in star pagination against Oasis as it has against others. See Sherwood Medical Indus., Inc. v. Deknatal, Inc., 512 F.2d 724, 728 (8th Cir. 1975) (courts should take into account "business realities" when making this "pragmatic judgment"). An express threat to sue is not necessary. Goodyear Tire & Rubber Co. v. Releasomers, Inc., 824 F.2d 953, 956 (Fed. Cir. 1987) ("[W]e cannot read the Declaratory Judgment Act so narrowly as to require that a party actually be confronted with an express threat of litigation . . . . Such a requirement would utterly defeat the purpose of the Declaratory Judgment Act.") (emphasis original); Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 738 (Fed. Cir. 1988) ("an apprehension may arise from circumstances which include no communication by defendant to plaintiff") (emphasis original). Rather, it is enough that the "totality of the circumstances" support a finding of reasonable apprehension of litigation. See, e.g., Cordis Corp. v. Medtronic, Inc., 835 F.2d 859, 862-63 (Fed. Cir. 1987); see also Sherwood Medical Indus., 512 F.2d at 727 ("the requirement of a charge of infringement is liberally construed"). Under the circumstances presented, Oasis reasonably concluded from the totality of circumstances that West would sue to prevent Oasis from using star pagination to West's Florida Cases.

Oasis Cannot, However, Show That It "Has Actually Published Or Is Preparing to Publish Material" That Is Subject To West's Alleged Copyright

Although Oasis had a reasonable apprehension of litigation, the instant case cannot meet the Eighth Circuit's test for a justiciable controversy in a copyright declaratory judgment action in light of the second prong for justiciability: Oasis has not "actually published" and is not "preparing to publish" the allegedly infringing product.[FNR9] Indeed, the product in suit is purely hypothetical both when the complaint was filed and even at present.

When this action was still pending in the Southern District of Florida, West argued this very point, i.e., that the Complaint did not describe a justiciable controversy because Oasis did not allege that it possessed the "immediate intention and ability" to produce an allegedly infringing product. See West's Memorandum of Law in Support of Defendant's Motion to Dismiss at 14-15 ("Oasis has failed to take even the basic, preliminary step of obtaining slip opinions from the courts, let alone selecting which of those slip opinions it intended to publish."). West described the Complaint as enunciating a mere desire "to add West materials to a future product if and when it receives a favorable judgment to shield itself from all legal risks." Id. at 14. West stated that "[t]his desire does not state a justiciable claim. . . . Indeed, allowing hypothetical complaints like this one to be adjudicated would open the floodgates to a sea of lawsuits by would-be plaintiffs seeking judicial assurances prior to choosing whether to produce a particular product." Id. (citing Re-Alco Indus., Inc. v. National Ctr. for Health Educ., Inc., 812 F. Supp. 387, 395 (S.D.N.Y. 1993) (dismissing declaratory judgment action for lack of justiciable controversy where plaintiff had not taken any concrete steps to begin production of infringing product)).

There is no evidence that since the time West advanced that argument in court, Oasis has actually published or taken concrete steps to publish the hypothetical product in suit. Rather, a review of the Joint Stipulation of Facts reveals that Oasis has not taken even the first step in preparing the product for publication, i.e., obtaining a set of West's Florida Cases from which it intends to copy the text of judicial opinions. See Joint Stipulation of Facts, A- 5001, ¶ 26.

Indeed, Oasis' utter lack of preparations to publish the product is evident from the parties' joint description of the "Proposed Product," which sets forth no facts about what Oasis has done, but rather concentrates only on what it intends to do pending the outcome of this action:

Oasis has announced its intention to publish a CD-ROM product containing the appellate court decisions of the State of Florida, to be called Oasis' Florida Decisions on CD-ROM. Oasis has announced its intention to include both parallel citations and star pagination to Florida Cases (which uses Southern Reporter volume number and pagination) in its product.

Oasis has stated that it intends to obtain Florida court decision for its Florida CD-ROM product from Florida Cases. Specifically, Oasis has indicated that it intends to obtain a set of West's Florida Cases in hard-bound form. Oasis will then send such books to a key-punching service, where the text of the reports of the Florida courts' decisions will be "key-punched" into the computer. . . .

Oasis asserts that it will insert the star- pagination into its product . . . . Joint Stipulation of Facts, A-5001, ¶¶ 25-27 (emphasis added).[FNR1]0

Because Oasis has not "published [and is not] preparing to publish the material that is subject to the defendant's copyright [in a manner that] places the parties in a legally adverse position," Diagnostic Unit, 88 F.3d at 653, this case does not present a justiciable controversy.

In this regard, the instant case stands in sharp contrast to Matthew Bender's declaratory judgment action in the Southern District of New York, in which the court found that "Bender has fulfilled its burden of showing by a preponderance of the evidence that it had the intention and ability to produce the New York product at the time it filed the complaint, and Bender has now in fact completed that product." Matthew Bender v. West, 39 U.S.P.Q.2d at 1084. As evidence in support of its conclusion, the court took into account the following preparatory actions that preceded the filing of the complaint: Bender retained a management consultant to study the feasibility of the product; Bender sought bids from vendors to produce a test version of the product; Bender decided to go forward with production of the product which was to include star pagination; Bender retained a third party vendor to perform work necessary for the test product and commenced production; and Bender collected thousands of opinions for the product and arranged for the collection of additional opinions. Id. In addition, the court found that prior to filing a First Supplemental Complaint, Bender had successfully completed production of the New York product including star pagination, thus further proving Matthew Bender's intention and ability at the time of the original filing. Id. ("[E]ven though the Court finds that Bender has shown an intention to produce the New York product prior to filing the original complaint, the First Supplemental complaint certainly cured any jurisdictional defects that West believes to have existed when the complaint in this action was filed."). The instant facts show the polar opposite from Matthew Bender's extensive preparations and successful manufacture of the product in suit: Oasis did nothing before filing to commence production, and apparently has done nothing since.

In sum, because Oasis has not made preparations to publish an allegedly infringing product, the Court below was without subject matter jurisdiction. The judgment below should thus be vacated and the case remanded with directions to dismiss the complaint. See, e.g., Acquisito v. United States, 70 F.3d 1010, 1011 (8th Cir. 1995) (vacating grant of summary judgment and remanding with instructions to dismiss where no subject matter jurisdiction).

Should The Court Determine, Arguendo,That There Is Subject Matter Jurisdiction Over The Declaratory Judgment Action, The District Court's Decision Should Be Reversed

In the unlikely event that this Court finds that Oasis can prove both (1) that West has "expressly or impliedly charged" Oasis with infringement, and (2) that Oasis has "taken concrete steps" to produce the product in suit, Matthew Bender respectfully suggests that the decision below must be reversed as clearly erroneous for all of the reasons advanced by appellant Oasis.

CONCLUSION

For the foregoing reasons, Matthew Bender respectfully requests that this Court vacate the district court's decision and remand this case with instructions that it be dismissed for want of subject matter jurisdiction. In the alternative, Matthew Bender respectfully requests that the judgment below be reversed.

DATED: September 5, 1996

IRELL & MANELLA LLP

Morgan Chu

David Nimmer

Elliot Brown By

Elliot Brown
Attorneys for Amicus Curiae
Matthew Bender & Company, Inc.
TABLE OF CONTENTS -- VERSION 3.1 2/7/91
TABLE OF CONTENTS
Page


INTRODUCTION
1

I.
Amicus' Interest In This Action
1

II.
Matthew Bender's Efforts To Vindicate Its Use Of Star Pagination; West's Attempts To Thwart Matthew Bender's Efforts Through Assertion of Non-Meritorious Subject Matter Jurisdiction Defenses
1

III.
West's Diametrically Contrary Actions At Bar To Attempt To Stipulate To Subject Matter Jurisdiction In Order To Obtai