Concerned Parent Seeks Declaratory Judgement Concerning Potential Fair Use of Copyrighted Mental Health Survey
On June 6th of this year, another case involving copyright reached a federal court, this time in Kentucky.
In January 2023, Miranda Stovall ("Stovall"), mother of a child attending Jefferson County Public Schools ("JCPS" or "Defendants") and an advocate for parental rights, educational reform, and transparency in Kentucky, learned that JCPS was planning to administer a "Mental Health Screener" survey to students in grades 6 through 12. Upon hearing this, Stovall decided to request a copy of the questionnaire, as she had done with other documents from JCPS for public discussion purposes. However, this time, JCPS denied her request, claiming that the survey was copyrighted intellectual property of NCS Pearson, Inc. ("Pearson” or “Defendants") and that providing a copy was prohibited by the Kentucky Open Records Act, federal law, and their contractual terms with Pearson. (Complaint at 5).
Pearson, on the other hand, offered Stovall the opportunity to inspect the survey in person on the school premises, which she refused. (Motion to Dismiss at 5). In her Complaint, Stovall argued that without access to a copy of the survey, her First Amendment rights to criticism, public comment, news reporting, and political advocacy and discussion have been impaired. She also contended that her request is safeguarded by fair use since it is non-commercial, nonprofit, and for criticism purposes.
Stovall requested that the Federal District Court issue a declaratory judgment to determine whether the disclosure of copyrighted material by a state agency for non-commercial purposes infringes on the copyright holder’s rights. (Complaint at 6).
JCPS responded to Stovall's allegations by stating that her claims fall under the scope of the Kentucky Open Records Act and should therefore be brought before a state court. They also argued that Stovall's request falls within an exception to the Kentucky Open Records Act, which prohibits the release of public records protected by federal law, such as copyrighted surveys. Furthermore, they asserted that the federal district court lacks jurisdiction to hear the case and that, due to sovereign immunity, they cannot be sued in this instance. (See Answer at 8).
Pearson, on the other hand, filed a Motion to Dismiss as their response. In their motion, Pearson presented a defense similar to that of JCPS, arguing that Stovall’s claims arise under Kentucky law and should therefore be addressed by a state court, not a federal one. Pearson pointed out that under the Declaratory Judgment Act, a person requesting a declaratory judgment must present "an independent basis for federal subject matter jurisdiction." (Motion to Dismiss at 6. (Citing Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir. 2007)). They contend that Stovall's case lacks such an independent basis, as the core of her claim involves JCPS's denial under the Kentucky Open Records Act, not the Copyright Act. (Motion to Dismiss at 6).
Additionally, Pearson argued that the fair use declaratory judgment action is not ripe. The ripeness doctrine requires a controversy between parties to be sufficiently substantial, immediate, and real before a court can issue a declaratory judgement. (Ripeness Doctrine, Black's Law Dictionary, Abridged 5th Edition). Pearson contended that fair use is an affirmative defense applied after an actual controversy has occurred and therefore is not applicable in this case, as the dispute has not developed to the point of constituting a material conflict under the Copyright Act. (Motion to Dismiss at 10). For that reason, Pearson claimed the case should be deemed unripe.
Pearson also noted that federal courts in Kentucky have frequently dismissed similar cases, particularly on the grounds of lacking subject-matter jurisdiction. They argued that the court should take the same approach in this instance.
In her Response to Pearson’s Motion to Dismiss, Stovall emphatically contends that Pearson is trying to make "…[the] case more complex than it is." (See Response to Motion to Dismiss at 2). She argues that the main issue is a matter of federal law, as her request is simply to determine whether being provided with a copy of the survey would infringe on copyright law, and therefore, Pearson's motion should be denied. She also asserts that the Declaratory Judgment action is not unripe in this case because she is not seeking to litigate any hypothetical liability, but rather to address a state agency's misunderstanding of copyright law. Furthermore, Stovall argues that "…bringing a Declaratory Judgment Act case based on fair use against copyright infringement [has been an] ordinary practice" in federal courts. (See Response to Motion to Dismiss at 4 (Citing Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 522 (2023)).
Now, it is up to Judge Greg N. Stivers to decide the next steps in the case and determine whether this qualifies as a federal case. We will provide further updates as events unfold.