Amicus Curiae Brief — Miranda Stovall, Petitioner v. Jefferson County Board of Education, dba Jefferson County Public Schools, et al.

Supreme Court briefJun 22, 2026

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No. 25-1302

In the Supreme Court of the United States

__________

MIRANDA STOVALL,

Petitioner,

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL.,

Respondents.

__________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________

BRIEF OF THE MANHATTAN INSTITUTE AND

MACKINAC CENTER FOR PUBLIC POLICY AS

AMICI CURIAE SUPPORTING PETITIONER

__________

June 22, 2026

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

QUESTION PRESENTED

Whether federal courts must, or state courts may,

decide whether it is a fair use, under the Copyright

Act, to request and obtain a copyrighted document

under state open records law.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 2

I. THE QUESTION PRESENTED IS

RECURRING AND IMPORTANT

BECAUSE MODERN GOVERNMENTS

INCREASINGLY ACT THROUGH

PRIVATE VENDORS ....................................... 2

A. Public Records Often Include VendorCreated or Vendor-Licensed Materials ....... 2

B. Forum Uncertainty Defeats Access

Before Any Court Reaches the Issue of

Fair Use........................................................ 4

II. LOWER COURTS ARE DIVIDED OVER

WHO MAY DECIDE FAIR USE WHEN

PUBLIC-RECORDS COPIES ........................... 5

III.FEDERAL JURISDICTION IS PROPER

BECAUSE THE SIXTH CIRCUIT

MISIDENTIFIED THE RELEVANT

COERCIVE ACTION ........................................ 8

IV. CERTIORARI IS WARRANTED

BECAUSE THE SPLIT WILL NOT

RESOLVE ITSELF AND STATE

REFORMS CANNOT ANSWER THE

FEDERAL FORUM QUESTION ................... 13

CONCLUSION .......................................................... 14

iii

TABLE OF AUTHORITIES

Page(s)

Cases

ACLU of Utah Found. v. Davis County, No.

1807005112021 Utah Dist. LEXIS 1 (Utah

Dist. Ct., Mar. 25, 2021) .......................................... 3

Ali v. Phila. City Plan. Comm’n, 125 A.3d 92

(Pa. Commw. Ct. 2015) ............................................ 6

Bassett v. Mashantucket Pequot Tribe,

204 F.3d 343 (2d Cir. 2000) ..................................... 5

Bravo-Fernandez v. United States,

580 U.S. 5 (2016) .................................................... 13

Brewer v. Metro. Gov’t of Nashville & Davidson

Cnty., No. M2024-01139-COA-R3-CV, 2026

WL 296584 (Tenn. Ct. App. Feb. 4, 2026) ............... 7

Chase Bank USA, N.A. v. City of Cleveland,

695 F.3d 548 (6th Cir. 2012) .................................... 8

Franchise Tax Bd. v. Constr. Laborers Vacation

Tr., 463 U.S. 1 (1983) ............................................... 8

Garlick v. Naperville Township,

84 N.E.3d 607 (Ill. App. Ct. 2017) ........................... 6

Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg., 545 U.S. 308 (2005) ........................ 11

Gunn v. Minton, 568 U.S. 251 (2013).................. 11, 12

Lindberg v. Kitsap County,

948 P.2d 805 (Wash. 1997) ...................................... 7

Microdecisions, Inc. v. Skinner,

889 So. 2d 871 (Fla. Dist. Ct. App. 2004) ........ 4, 6, 7

Nat’l Council of Tchrs. Quality, Inc. v. Curators

of the Univ. of Mo.,

446 S.W.3d 723 (Mo. Ct. App. 2014)........................ 6

Pennington v. Clark,

791 N.Y.S.2d 774 (N.Y. App. Div. 2005).................. 7

Pictometry Int’l Corp. v. Freedom of Information

Comm’n, 59 A.3d 172 (Conn. 2013) ................... 3, 13

Ritchie v. Williams,

395 F.3d 283 (6th Cir. 2005) ............................ 10, 12

Skelly Oil Co. v. Phillips Petroleum Co.,

339 U.S. 667 (1950) .................................................. 8

Sony Corp. of Am. v. Universal City Studios, Inc.,

464 U.S. 417 (1984) .................................................. 9

Spencer v. Cherokee Cnty. Sch. Dist.,

916 S.E.2d 746 (Ga. Ct. App. 2025) ......................... 7

Stovall v. Jefferson Cnty. Bd. of Educ.,

164 F.4th 554 (6th Cir. 2026) ...... 3, 5, 10, 11, 12, 13

T.B. Harms Co. v. Eliscu,

339 F.2d 823 (2d Cir. 1964) ......................... 9, 12, 14

Zellner v. Cedarburg Sch. Dist.,

731 N.W.2d 240 (Wis. 2007) .................................... 6

Statutes

17 U.S.C. § 106............................................................. 9

17 U.S.C. § 107............................................................. 9

28 U.S.C. § 1338(a) .................................................. 4, 9

28 U.S.C. § 2201(a) ...................................................... 8

KRS § 61.878(1)(k) ................................................. 3, 12

Other Authorities

3 Melville B. Nimmer & David Nimmer,

Nimmer on Copyright (2026) ............................. 4, 12

Frank D. LoMonte, Copyright Versus the

Right to Copy: The Civic Danger of

Allowing Intellectual Property Law to

Override State Freedom of Information

Law, 53 Loy. U. Chi. L.J. 159 (2021) ............... 2, 3, 4

INTEREST OF AMICI CURIAE 1

The Manhattan Institute (MI) is a nonprofit public policy research foundation whose mission is to develop and disseminate new ideas that foster greater

economic choice and individual responsibility.

The Mackinac Center for Public Policy (Mackinac) is a Michigan-based nonpartisan research and

educational institute advancing policies fostering free

markets, limited government, personal responsibility,

and respect for private property.

Government transparency is vital to a democratic

society. MI and Mackinac scholars depend on freedom

of information laws in many areas of study and advocacy. Moreover, MI has often defended parental rights

in this Court and other federal courts. This case presents a confluence of both issues.

SUMMARY OF ARGUMENT

Miranda Stovall wanted to know what questions

her child was being asked on a survey given by a public

school. Perhaps she would have been okay with the

questions, or perhaps she would have objected, but the

first barrier was simply requesting, accessing, and being able to copy the survey. The result was complex

litigation and a petition to this Court.

The ultimate resolution of her case is still unclear,

even if the petition is granted. She merely asks this

Court to decide which court gets to decide the question

of fair use of public records that are used by

1 Rule 37 statement: All parties were timely notified of the

filing of this brief. No part of this brief was authored by any

party’s counsel, and no person or entity other than amici, their

members, or their counsel funded its preparation or submission.

governments and created by private entities. That

question is recurring, unresolved, and worthy of cert.

Moreover, states are increasingly using third-party

vendors to produce a variety of public documents that

are important to government policy—particularly in

the areas of education, prisons and corrections, and environmental regulation. Access to those documents—

or at least clear jurisdictional rules on how and

whether those documents can be accessed—is important to democratic governance.

Mrs. Stovall has gone through a lot of litigation for

a mother of four from Kentucky. If she did not have pro

bono representation, she would likely have six figures

in legal fees to merely get to the point that she can ask

this Court to decide in which court she should have initially filed her case.

ARGUMENT

I. THE QUESTION PRESENTED IS RECURRING AND IMPORTANT BECAUSE MODERN GOVERNMENTS INCREASINGLY ACT

THROUGH PRIVATE VENDORS

A. Public Records Often Include Vendor-Created or Vendor-Licensed Materials

The public record of government action is no longer

confined to documents drafted by public employees. It

increasingly includes materials created, licensed, or

maintained by private vendors. As one scholar of this

problem has explained, government agencies have become creators or accumulators of many commercially

valuable works, including databases and geographic

mapping data. Frank D. LoMonte, Copyright Versus

the Right to Copy: The Civic Danger of Allowing Intellectual Property Law to Override State Freedom of

Information Law, 53 Loy. U. Chi. L.J. 159, 161 (2021).

A particularly difficult category arises where the government is merely the custodian of works created by

commercial third parties. Id. at 204–05.

This case illustrates the pattern in the educational

context. Jefferson County Public Schools (JCPS) refused to produce a copy of a student survey, citing Kentucky’s exemption for records “prohibited by federal

law or regulation,” KRS § 61.878(1)(k), and asserting

that the survey was the copyrighted intellectual property of its publisher, NCS Pearson, Inc. Stovall v. Jefferson Cnty. Bd. of Educ., 164 F.4th 554, 559 (6th Cir.

2026). The same dynamic recurs across the administrative state. In criminal justice, contractor-drafted

manuals, medical protocols, and risk-assessment instruments are held by public agencies and routinely

sought by those seeking to understand how those

agencies operate. See, e.g., ACLU of Utah Found. v.

Davis County, No. 1807005112021, Utah Dist. LEXIS

1 (Utah Dist. Ct., Mar. 25, 2021). In the management

of public data, geographic, mapping, and analytical databases—like the images at issue in Pictometry Int’l

Corp. v. Freedom of Information Comm’n, 59 A.3d 172

(Conn. 2013)—are typical examples of vendor-licensed

records held by government. These materials are often

essential to evaluating how public programs operate.

They are also the records likely to generate a private

Moreover, many records that are most important to

public oversight are those most likely to carry private

not coincidental. The more the government relies on

private vendors to administer public programs, the

more public accountability depends on access to privately authored materials held by the government.

The public records that reveal how a program actually

functions—e.g., the assessment instrument a school

district uses, the vendor protocols a prison or corrections institution follows, the database through which

an agency analyzes regulated activity—are frequently

the very materials a third-party contractor may claim

needs access to records obtained by the government

from the private sector when those records are central

to the policymaking process, or when those records become government policy. LoMonte, supra, at 205; see

Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 873

(Fla. Dist. Ct. App. 2004) (vendor claimed copyright in

county geographic-mapping data sought as a public

record). A rule that lets copyright defeat copying therefore reaches precisely the records on which public oversight most depends.

B. Forum Uncertainty Defeats Access Before

Any Court Reaches the Issue of Fair Use

The harm that arises from cases like Mrs. Stovall’s

is not merely that requesters may ultimately lose due

to a copyright claim. Rather, under the current state

of the law, litigants like Mrs. Stovall don’t know which

court to bring the question at all. Federal jurisdiction

over copyright is exclusive: “No State court shall have

jurisdiction over any claim for relief arising under any

Act of Congress relating to . . . copyrights.” 28 U.S.C. §

1338(a). Yet the boundary between federal and state

competence over copyright questions has, in the words

of the leading treatise, “pose[d] among the knottiest

procedural problems in copyright jurisprudence.” 3

Melville B. Nimmer & David Nimmer, Nimmer on

Mashantucket Pequot Tribe, 204 F.3d 343, 347 (2d Cir.

2000). When that uncertainty attaches to a time-sensitive records request, the practical consequence is

foreclosure. A requester who must litigate for years

simply to learn which court may decide the federal

question will often abandon the request before any

court reaches it.

The question here is not whether Stovall should ultimately prevail on fair use. Nor need the Court decide

whether every fair-use dispute in this setting is ripe at

the moment a requester files suit. The question worthy

of certiorari is antecedent: when copyright is invoked

as the reason for denial, the lower courts disagree

about which court may decide whether federal law prohibits the copying.

II. LOWER COURTS ARE DIVIDED OVER WHO

MAY DECIDE FAIR USE WHEN COPYRIGHT

IS INVOKED TO DENY PUBLIC-RECORDS

COPIES

The decisions confronting the same issue as this

case do not merely reach different outcomes; they assign the same federal question to different decisionmakers. Some courts hold or assume that state tribunals may decide fair use. The decision below adopts

this position.

The Sixth Circuit held that state courts have authority to consider incidental copyright questions and

that a state court “may exercise jurisdiction over this

claim, because it does not arise under federal copyright

law.” Stovall, 164 F.4th at 561–62. In support, the

court relied on a single state-court decision that had

applied federal fair-use doctrine to a public-records

request. See id. (citing Zellner v. Cedarburg Sch. Dist.,

731 N.W.2d 240, 247 (Wis. 2007)). In Zellner, the Wisconsin Supreme Court applied the statutory fair-use

factors and held that the requested records did not fall

within the state’s copyright exemption. Zellner, 731

N.W.2d at 247–48. Under this approach, the meaning

and application of a federal statute is committed to the

courts of each state.

But the Connecticut Supreme Court held the opposite. In Pictometry, addressing a state commission’s effort to apply the Copyright Act, the court held that neither the commission nor the court had jurisdiction to

determine whether a particular use of copyrighted materials is fair use or infringes the copyright holder’s

rights. That determination, the court held, must be

made in federal court. 59 A.3d at 192. Other state

courts have reached the same conclusion. See Nat’l

Council of Tchrs. Quality, Inc. v. Curators of the Univ.

of Mo., 446 S.W.3d 723, 729 (Mo. Ct. App. 2014) (state

court “lacks the authority to determine whether a particular use of copyrighted materials constitutes fair

use, as federal courts have original jurisdiction” over

Comm’n, 125 A.3d 92, 104–05 (Pa. Commw. Ct. 2015);

Garlick v. Naperville Township, 84 N.E.3d 607, 622

(Ill. App. Ct. 2017) (state appellate court “is not the

proper forum for copyright claims”). Under this approach, the federal fair-use question is unavailable in

state court—and, under the rule below, equally unavailable in federal court.

A third group of decisions sidesteps the jurisdictional question, resolving these disputes on grounds

that vary from court to court. Microdecisions, Inc. v.

Skinner, 889 So. 2d 871 (Fla. Dist. Ct. App. 2004) is

illustrative. There, a vendor invoked copyright to refuse copies of public geographic-mapping data. The

case moved between federal and state court before a

state appellate court ultimately disposed of it by holding that the county had no authority to claim copyright

in the maps in the first place. Id. at 873–76. That resolution avoided the federal fair-use question rather

than answering it, leaving the underlying problem unresolved for the next requester.

Other courts have taken similar paths. See, e.g.,

Lindberg v. Kitsap County, 948 P.2d 805, 814 (Wash.

1997) (declining to reach the jurisdictional question

because it had not been raised below); Pennington v.

Clark, 791 N.Y.S.2d 774, 776 (N.Y. App. Div. 2005) (rejecting, without meaningful copyright analysis, the

contention that court-ordered disclosure of a videotape

under the state’s freedom of information law would violate copyright law); Spencer v. Cherokee Cnty. Sch.

Dist., 916 S.E.2d 746, 752 (Ga. Ct. App. 2025) (holding

that the Copyright Act did not preempt Georgia’s Open

Records Act and that the act contained no copyright

exemption, without deciding fair use); Brewer v. Metro.

Gov’t of Nashville & Davidson Cnty., No. M202401139-COA-R3-CV, 2026 WL 296584, at *20–21

(Tenn. Ct. App. Feb. 4, 2026) (declining to resolve the

fair-use issue where the record did not permit a determination of copyrightability or infringement and

where inspection could proceed without copying, distribution, or public display).

These cases reflect that the lower courts cannot

agree on a threshold question of federal law: which forum is competent to decide whether copying a public

record is permitted under § 107 of the Copyright Act.

Until this Court resolves that question, requesters

cannot know where to file, and federal copyright law

cannot be applied uniformly in the public-records setting where it is most often invoked.

III. FEDERAL JURISDICTION IS PROPER BECAUSE THE SIXTH CIRCUIT MISIDENTIFIED THE RELEVANT COERCIVE ACTION

1. Federal jurisdiction is proper under § 1338 and

settled declaratory-judgment doctrine. But the deeper

problem warranting review is that, under the current

patchwork, no forum is reliably available to decide the

federal copyright question that public agencies invoke

to deny records access.

The Declaratory Judgment Act is “procedural only”

and does not itself create federal-question jurisdiction.

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,

671 (1950); see 28 U.S.C. § 2201(a). To determine

whether a declaratory action presents a federal question, a court looks through the declaratory posture to

a hypothetical coercive suit. As the court below has

elsewhere framed the inquiry, “whether a federal

question exists is determined by reference to a hypothetical non-declaratory suit (i.e., a suit for coercive relief) between the same parties; if a federal question

would appear in the complaint in this hypothetical

suit, federal jurisdiction exists over the declaratoryjudgment action.” Chase Bank USA, N.A. v. City of

Cleveland, 695 F.3d 548, 554 (6th Cir. 2012); accord

Franchise Tax Bd. v. Constr. Laborers Vacation Tr.,

463 U.S. 1, 19 (1983). The federal-question inquiry is

thus not controlled by the state-law setting in which

the controversy arose. It asks whether the coercive

action mirrored by the declaratory suit would arise under federal law.

The relevant coercive action is the copyright

holder’s infringement suit, not a state-records appeal.

But the court below treated the case as though Stovall

were asserting a federal defense to a state-law obligation—as though the relevant hypothetical suit were an

open-records enforcement action under Kentucky law.

But Stovall does not need a defense to the Kentucky

Open Records Act. The legal threat that prevented disclosure was the asserted threat that copying the survey would infringe Pearson’s federal copyright. The

mirror-image coercive action is therefore Pearson’s infringement suit—a suit that would unquestionably

arise under federal copyright law. 28 U.S.C. § 1338(a).

That conclusion follows from the structure of the

claims arise under it. The exclusive rights of a copyright owner, including the reproduction right, are expressly “[s]ubject to” the limitations of §§ 107 through

122. 17 U.S.C. § 106. Fair use is the first of those limitations: it defines conduct that is not infringement at

all, not merely conduct that is excused. See 17 U.S.C.

§ 107; Sony Corp. of Am. v. Universal City Studios,

Inc., 464 U.S. 417, 433 (1984) (one who makes fair use

“is not an infringer of the copyright”). A suit to enforce

or to disclaim that federal right arises under the Copyright Act. As Judge Friendly explained in a decision

widely regarded as the leading statement of the rule,

an action arises under the act where the complaint

seeks a remedy expressly granted by the act or “asserts

a claim requiring construction of the Act.” T.B. Harms

Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964). And §

1338(a) places such claims within the exclusive

jurisdiction of the federal courts, “expressly withdraw[ing] from the state courts any jurisdiction to enforce the provisions of the Act.” Ritchie v. Williams,

395 F.3d 283, 286 (6th Cir. 2005).

The error below was thus not a misunderstanding

of the coercive-action test in the abstract, but a misidentification of the relevant copyright controversy.

The federal right being asserted as the obstacle to disclosure is Pearson’s copyright. The mirror-image coercive action is therefore a federal copyright action by

Pearson against the party who would make or distribute the copy—JCPS—and potentially against Stovall

if she later copied or redistributed the survey. That is

the controversy Stovall sought to resolve: whether

providing the copy would infringe Pearson’s copyright

or instead fall within § 107. That any such infringement action would run against JCPS as the disclosing

agency does not change the analysis—the coercive-action test asks whether the hypothetical suit would

arise under federal law, not whether it would name

this particular declaratory plaintiff as defendant. The

hypothetical coercive action arises under federal copyright law, and the declaratory action mirroring it belongs in federal court.

The Sixth Circuit separately commented that

Stovall lacked Article III standing because Pearson’s

infringement suit was too speculative. Stovall, 164

F.4th at 562–63. That holding does not make the forum problem less worthy of this Court’s review. In

public-records cases like this one, the copyrightholder’s infringement suit ordinarily will not materialize until after disclosure, while disclosure is precisely

what the copyright objection prevents. If that posture

is too speculative for federal declaratory relief, and if

state tribunals remain divided over whether § 1338(a)

permits them to decide fair use, the federal copyright

question becomes practically unreviewable. The requester is left without a reliable forum, the agency is

left without a definitive answer, and the copyright

holder’s assertion controls without any court deciding

whether federal law actually prohibits copying.

2. The decision below treated the federal copyright

question as merely incidental to a state-law dispute,

holding that Stovall’s claim does not “necessarily

raise” a copyright question under Gunn v. Minton, 568

U.S. 251 (2013). Stovall, 64 F.4th at 560–61. But the

substantial-federal-question framework confirms federal jurisdiction here; it does not defeat it. Under that

framework, federal jurisdiction lies over a state-law

claim where a federal issue is “(1) necessarily raised,

(2) actually disputed, (3) substantial, and (4) capable

of resolution in federal court without disrupting the

federal-state balance approved by Congress.” Gunn,

568 U.S. at 258; see Grable & Sons Metal Prods., Inc.

v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005).

In Gunn, the Court held the issue insubstantial because resolving it could not “change the real-world result of the prior federal patent litigation” and would

not “undermine the development of a uniform body of

patent law.” 568 U.S. at 261 (cleaned up). Here, by contrast, the federal copyright question is not embedded,

hypothetical, or backward-looking. It is the whole dispute: whether copying the survey is prohibited by §

106 or permitted by § 107.

Each Grable factor is satisfied. The federal issue is

necessarily raised: the school district denied the request by invoking Kentucky’s exemption for records

“prohibited by federal law or regulation,” KRS §

61.878(1)(k), and by identifying Pearson’s copyright as

the federal-law obstacle. Stovall, 164 F.4th at 559. It

is actually disputed: as JCPS framed the denial, the

only basis for refusing to provide a copy was federal

records whose disclosure is “prohibited by federal law”

and identified Pearson’s copyright as the federal-law

obstacle. The controversy, therefore, turns on whether

providing the copy would infringe the federal reproduction right or instead fall within federal fair use. It

is substantial: the substantiality inquiry asks about

“the importance of the issue to the federal system as a

whole,” Gunn, 568 U.S. at 260, and ensuring the uniform construction of the fair-use provision is a quintessentially federal interest, see T.B. Harms, 339 F.2d at

828. And resolution in federal court is consistent with

the federal-state balance; indeed, it is the balance Congress struck. Section 1338(a) expressly allocates copyright jurisdiction to the federal courts and withdraws

it from state courts. A federal forum for a question

Congress reserved for the federal courts cannot disrupt a balance Congress itself established.

In fact, § 1338(a) reflects Congress’s judgment that

395 F.3d at 287 (noting that Congress has indicated

that “national uniformity” is necessary in copyright).

A regime in which the same fair-use question is decided by a state court in one state, refused by a state

court in the next, and refused by a federal court in a

third defeats that design. The boundary problem the

treatises have lamented, see Nimmer, supra, §

12.01[A], is not merely academic; it has produced a

patchwork in which the governing federal standard depends on the accident of where a record happens to be

held. Whatever the ultimate rule, the present

uncertainty defeats the uniformity Congress sought

and makes fair use practically unavailable in recurring public-records disputes.

IV.CERTIORARI IS WARRANTED BECAUSE

THE SPLIT WILL NOT RESOLVE ITSELF

AND STATE REFORMS CANNOT ANSWER

THE FEDERAL FORUM QUESTION

This Court grants certiorari to resolve a conflict between a federal court of appeals and a state court of

last resort on an important question of federal law.

Sup. Ct. R. 10(a), (c). That standard is met. The Sixth

Circuit holds that state courts may decide whether

copying a record under state open-records law constitutes fair use; the Connecticut Supreme Court holds

that neither a state administrative tribunal nor a state

court may make that determination. Stovall, 164 F.4th

at 561–62; Pictometry, 59 A.3d at 192 (“[N]either the

commission nor this court . . . has jurisdiction to determine whether a particular use of copyrighted materials infringes on the copyright holder’s rights under federal copyright law or, instead, constitutes a fair use of

the materials.”). The Court has granted review to resolve conflicts resting on a single state court of last resort. See Bravo-Fernandez v. United States, 580 U.S.

5, 18 n.6 (2016). This conflict will not resolve itself. The

lower courts do not merely disagree about outcomes—

they disagree about their own institutional competence to reach an outcome at all. As Part II, supra,

demonstrates, courts in at least nine states have produced incompatible answers, and each new case deepens rather than narrows the divide.

Some states have begun to clarify by statute that

records. Such reforms are valuable as a matter of

transparency policy. But they cannot resolve the question presented. A state may declare that copyright is

not an open-records exemption, but it cannot answer

the antecedent federal question that arises once an

agency or vendor asserts that copying is “prohibited by

federal law.” Whether the Copyright Act in fact prohibits the copying, or whether the copying is fair use

under § 107, is a question that arises under federal

law, see T.B. Harms, 339 F.2d at 827–28, and § 1338(a)

controls who may answer it.

CONCLUSION

The question presented recurs wherever government relies on private vendors to administer public

programs, and it will only become more common as

that reliance deepens. Lower courts have produced irreconcilable answers, and the Sixth Circuit’s decision

ensures that federal courts will not fill the gap. The

result is a jurisdictional vacuum in which copyright

can be invoked to defeat public-records access without

any court ever deciding whether federal law actually

requires that result. The petition should be granted.

Respectfully submitted,

June 22, 2026

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

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