The 11th U.S. Circuit Court of Appeals has scheduled oral arguments Aug. 17 in Atlanta on the dispute between Fastcase and Casemaker over the latter’s claims of copyright in Georgia administrative regulations.

Fastcase sued Casemaker in federal court in Atlanta in 2016 after Casemaker served it a written notice demanding that it remove Georgia administrative rules and regulations from its research collection. Casemaker’s parent company, Lawriter, has an agreement with the Georgia Secretary of State designating it as the exclusive publisher of the Georgia Rules and Regulations and giving it the right to license that content to other publishers.

After the court dismissed that lawsuit without prejudice in January 2017, Fastcase filed a second complaint against Casemaker in February 2017. Casemaker filed a motion to dismiss that second lawsuit. In July 2017, the court granted the motion to dismiss, concluding that it lacked subject-matter jurisdiction because Casemaker had never registered a copyright in the Georgia regulations. Fastcase appealed to the 11th Circuit.

In its brief on appeal, Fastcase — represented by Baker Donelson attorneys Robert G. Brazier, Steven G. Hall and Joshua Tropper — argues that the district court erred in concluding that it lacked jurisdiction. Fastcase argues that jurisdiction exists on two grounds:

  • Diversity jurisdiction based on the amount in controversy. Fastcase alleges that its potential losses exceed the $75,000 amount-in-controversy requirement. The district court ruled that Fastcase failed to provide sufficient evidence to establish this and that the value of the litigation was therefore too speculative and immeasurable. Fastcase argues that the district court applied the wrong legal standard in making this ruling and should have found diversity jurisdiction.
  • Subject-matter jurisdiction based on Lawriter’s threat to sue Fastcase for copyright infringement. The district court concluded that it lacked subject-matter jurisdiction because Casemaker failed to register its copyright. Fastcase argues that Casemaker’s threat of a copyright infringement suit was one it could easily make good on and was sufficient grounds to establish federal copyright jurisdiction.

In its brief to the 11th Circuit, Casemaker — represented by Kurt M. Rozelsky and Joseph W. Rohe of Smith Moore Leatherwood in Greenville, S.C. — defends the district court’s dismissal. It argues:

  • Diversity jurisdiction does not exist. It contends that in cases seeking declaratory judgment, such as this, the plaintiff bears the burden of proving that the amount in controversy exceeds $75,000. Fastcase’s claims of damages were purely hypothetical, it argues, and the district court therefore was correct in dismissing the case.
  • Subject-matter jurisdiction does not exist. It says that established 11th Circuit precedent requires a copyright holder to have at least applied to register a copyright in order to invoke subject-matter jurisdiction. Not only has it not even applied for copyright, it says, but it has provided Fastcase a covenant not to sue for copyright infringement.

In a further reply brief, Fastcase portrays Casemaker’s arguments as “litigation gymnastics” designed to preserve its “exclusive copyright-like rights” in Georgia’s regulations.

Simply put, full, free and unfettered access to our laws is vital to our democracy and cannot be defeated by carefully orchestrated efforts to restrict access and evade judicial review. This case presents, at its core, a single simple, but very important question, fundamentally a matter of federal law: can a private party — with or without the complicity of a governmental office — obtain and exercise exclusive copyright-like rights to the publication of public law? Putting aside strategic artifice, it cannot.

In an email exchange earlier this year, Fastcase CEO Ed Walters said that he considers it a good sign for Fastcase that the 11th Circuit requested oral arguments. “If the district court had the Eleventh Circuit’s precedents right, the court of appeals could simply affirm without argument,” he said.

When I reached out to Casemaker earlier this year about the appeal, the company declined to comment.