Prologue — Skinner v. MicroDecisions, Inc.

Supreme Court, U.S.

FILED

) 05-383 JUL 21 2005

No. ____ OFFICE CF THE CLERK

In THE

Supreme Court of the United States

Ase Skinner, aS Coiiier County (FL) Property Appraiser,

Petitioner,

V.

Micro Decisions, INc. A FLORIDA CORPORATION,

Respondent.

Petition for a Writ of Certiorari to the

Florida Supreme Court

———

PETITION FOR A WRIT OF CERTIORARI

ee ee

Gayiorp A. Woon, Jr.*

B. JonDAN Stuart,

Woon & Sruart, PA

206 Flagler Avenue

New Smyma Beach, FL 32169

(386) 424-9908

July 21, 2005 *Counsel of Record

QUESTION PRESENTED

Whether a state court has jurisdiction to decide

whether a person who has a copyright registration issued by

the United States Copyright Office is entitled to the

protection afforded by that copyright.

ii

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list identifies

all of the parties appearing here and before the Florida

Supreme Court.

The Petitioner here and Appellant below is Abe

Skinner, as Collier County (FL) Property Appraiser.

The Appellee below and Respondent here is

MicroDecisions, Inc., a Florida real estate information

provider.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED .... 1.2... ce ecccccseees i

PARTIES TO THE PROCEEDING ................ ii

TABLE OF AUTERUMELEBS occ cccccccccevecevoses iii

UU csi iuwes. eae eehiey VESTS R ]

I MIIG a 0b ang bony Seakéde keds ddan baba l

PEA Se OTE vc cee cvdasi'asvatewcerstere ]

STATEMENT OF THE CASE .............-...-0.- |

A. Factual Background.................. 2

B. Proceedings Below ..... oc cicccccccvces 3

REASONS FOR GRANTING THE PETITION ...... 4

I. THIS CASE RAISES THE CRITICALLY

IMPORTANT QUESTION OF WHETHER A

STATE COURT CAN DECIDE WHO IS

ENTITLED TO HOLD A COPYRIGHT....... 5

A. The Second District Court of Appeal

Misconstrued the Significance of the

United States District Court’s Order

GS 6.0 500 chub eikpatecr esi coedint 6

B_ The Second District Court of Appeal

Misconstrued the Law

Controlling Jurisdiction of this Case. ..... 8

iV

‘ C. The Second District Incorrectly

Determined that Florida’s Public

Records Law Abrogates the

CE RPO ep om pom ed ee Brae as 12

Il. THE SECOND DISTRICT’S DECISION, AND

THE FLORIDA SUPREME COURT’S

REFUSAL TO REVIEW THE CASE RESULTS

IN CONFLICT BETWEEN A FLORIDA STATE

COURTS AND THE SECOND CIRCUIT

COURT OF APPEALS OVER THE VERY

DARE DOOM cies eevee piecdveedertant bs 18

bet GPE Nee re Tee Tree er TT es caer 24

TABLE OF AUTHORITIES

Cases

Association of American Medical Colleges v. Carey, 728

F.Supp. 873 (N.D.N.Y. 1990) ........ccccceceverersersereerenes 17, 18

Bldg. Officials & Code Adm'rs v. Code Tech, Inc, 628 F.2d

Tes COE Cs CD ieitisiepiititnnnion 5, 13

County of Suffolk, N.Y. v. First American Real Estate

Solutions, 261 F.3d 179 (2d Cir.2001) .........-..c.ccccceeceeeeees 5

Department of Health & Rehabilitative Services v.

Southpointe Pharmacy, 636 So. 2d 1377 (Fla. 1* DCA

RES aT Oe ae 1

Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir. 1985).......... 17

First American, 261 F.3d at 188-189 ......ccc.ccccccsevsessesesseevees 8

Foley v. Luster, 249 F.3d 1281, 1287 (11 Cir. 2001) . 14, 17

Garrido v. Burger King Corp., 558 So. 2d 79, 82 (Fla. 3"

OT I EE eR REL 10

Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85

RRM PED MOPED entieepicberdedhuatbvchsasnuiishsdetiintgsteansheiaphiues 16

Jones v. Ruth Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305,

RIO 0 Ae OP COPE ED cettierperetcntttrecintiisenieectintin 15

Mazer v. Orange County, 811 So. 2d 857, 859 (Fla. 5* DCA

SO era ee 10

MicroDecisions v. Skinner, No. 2:02-cv-639-FTM-29DNF

ke Ge OR OR Ree ae ea 7

vi

MicroDecisions, Inc. v. Skinner, 889 So. 2d 871, 874 (Fla.

FC FP sichitsteninctitiiniabtpitiatacteihins 4, 6, 10, 12, 13

Orson, Inc. v. Miramax Film Corp., 189 F.3d 377 (3d Cir.

LOGE. ncersescounierdinienntviitiasnssinniniininnmniniantiigitainemavetiaiueisiias 17

Pincus v. Carlisle, 585 So. 2d 1172 (Fla. 4" DCA 1991) .. 10

Richard Feiner & Co. v. H.R. Industries, Inc., 10 F Supp. 2d,

i 7 48 A. BRR Oe Sate 17

Roth v. Pritkin, 710 F.2d 934, 938 (2d Cir. 1983), cert.

denied, 464 U.S. 961, 104 S.Ct. 394, 78 L.Ed.2d 337

"h ., e ing aati tamer Reais eee mine om 17

Schachel v. Closet Concepts, Inc., 405 So. 2d 487, 488 (Fla.

3° DCA 1981) ........... siiauiiheablsbepeliciibiowsalicadiade sseseensesssceeneeeee 11

Sears, Roebuck and Co. v. Stiffel Company, 376 U.S. 225, 84

Re, PAP IT cesicteiaceicnisdihercisenisiek ienpttaiignabonigndasenadadiavune 14

Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 172, 173, 176,

63 S.Ct. 172, 173, 87 L.Ed. 165 (1942) .2.......ccccccscereeees 15

Sparta Surf, Inc. v. Korda, 599 So. 2d 242, 243 (Fla. 4"

BPG ROOD cocisibntasiiiatndinlsitiniiciidiidinlsigihisteteitiindinde ties 11

State of Wisconsin v. Law Office Information Systems, Inc.,

230 Wis. 2d 185, 603 N.W. 2d 748, 1999 Copr.L.Dec. P

27, 947, 1999 WL 649235, page 4 (Wis. App. Table 19999

Statutes

EF Reid ts OT MINE: cciiviuishbtidiiieaniciumminiadicnsaceribibeiandas l

BF UBL GOI . cxvesensneccuscsenienrosens ceupatiesnbaneniseiisnvasinascanitsiteiil 18

PF MRE UGG aca csscstssccs sscccecttacechcooedeccdicioes 12

Re, a ee ST bd 1

LIE LM Ps OPN Bile GLEN Dacia se lade Sha aed 1,5

URC: 6 10000 ci 6

section 119.07, Florida Statutes .........cccsss.ccscsssssssesseseeee 1, 12

Title 17 United States Code, section 301(@) ............:ccc0ceeeeee 6

OPINIONS BELOW

The Florida Supreme Court decision to deny review

is reported without opinion at 902 So. 2d 791 (Fla. April 22,

2005), and the Order denying review is reprinted in the

Appendix to the Petition (“Pet. App.”) at 2a. The Opinion of

the Second District Court of Appeal, State of Florida, is

reported at 889 So. 2d 871 (Fla. 2“ DCA 2004), and is

reprinted at Pet. App. 9a-.

JURISDICTION

The Florida Supreme Court entered its judgment on

April 22, 2005. This Court has jurisdiction under 28 U.S.C.

§ 1257.

STATUTES INVOLVED

This case involves provisions of the Copyright Act,

17 U.S.C. § 101, et seg., 28 U.S.C. § 1338, and section

119.07, Florida Statutes.

STATEMENT OF THE CASE.

This case represents an important turning point in the

nature of copyright litigation in the United States.

Resolution of the issues presented in this case will determine

the continued significance of both the Copyright Act and 28

U.S.C. § 1338. Florida’s Second District Court of Appeal

has extended state court jurisdiction to a question which has

always been within the exclusive province of the Federal

courts: who may claim entitlement to copyright protection?

Petitioner Abe Skinner, as Collier County (FL)

Property Appraiser, produces tax maps by use of a

computerized Geographic Information System (“GIS”)

which allows users to graphically display information about

properties in Collier County, Florida. He produces this data

at great expense to county taxpayers. To protect the

investment in the GIS data, he applied for and received a

Certificate of Registration from the United States Copyright

Office, Number Vau598-175, effective September 03, 2002.

In addition to posting the maps on his office website for

anyone to view for free, Petitioner completely complied with

Florida’s Public Records Laws by providing one copy of the

GIS tax map source code to anyone requesting it, upon

payment of the actual cost of reproduction, along with a

personal use license that allowed the recipient of the code to

do anything with it except use it for commercial purposes.

Respondent, MicroDecisions, Inc., is a Florida for-

profit corporation that provides real estate information to

subscribers. MicroDecisions represents a new breed of

entrepreneur that requests public records direct from

government computers, and then resells those records at

great expense to subscribers who could otherwise access the

same records for free on Petitioner’s web site, or for the cost

of reproduction directly from the Petitioner.

A. Factual Background

Respondent requested copies of the GIS tax map

source code from Petitioner. Petitioner replied that his office

provides a license agreement with copies of GIS tax maps

that permits personal use of the records, and provides a

commercial use license that allows transfer and sale of the

maps, and quoted the prices of the data both for the personal

use and commercial use licenses.

Prior to receipt of any payment, and prior to being

served with the Complaint in the Circuit Court, Petitioner

sent a CD-ROM containing the GIS tax map files to

Plaintiff, with an invoice for the actual cost of reproduction.

Respondent paid the invoice.

B. Proceedings Below Pri

Under the guise of seeking copies of public records

(which Respondent already possessed), Respondent served

its Complaint in the Circuit Court of the Twentieth Circuit of

Florida, seeking an alternative writ of mandamus compelling

Petitioner to provide the source code free from copyright

restrictions. | Respondent claimed that the copyright

registration effectively denied it access to the public records

ney. Be See Seeene S Son Set: ee Ne

subject to a personal use license.

Petitioner served his Answer and Defenses, asserting

that the case was moot because Respondent was furnished

with the GIS tax map files (prior to the payment of the fee

prescribed by law), that Respondent had unclean hands

because it failed to submit the fee for the actual cost of

reproducing the records, that the circuit court lacked subject

matter jurisdiction because what Respondent sought was

really a determination of who may claim entitlement to a

copyright, and failure to state a cause of action.

Petitioner removed the case to the U.S. District Court

asserting that the predominant issue in the action is a matter

within the exclusive jurisdiction of the federal courts, arising

under an Act of Congress relating to copyrights. Respondent

moved to remand the case to the circuit. The District Court

granted the Motion to Remand, noting that the Complaint

filed in the circuit court alleged that the documents are

public records to which the Property Appraiser must allow

access, that the claim as alleged in the Complaint did not

arise from federal law or the Copyright Act, and was

therefore not completely preempted by federal law. A copy

of the Order is included in the Appendix hereto at Pet.App.

4a.

It is important to note that the District Court based its

decision to remand the case upon the four corners of the

Complaint, and not upon the various affidavits and

memorandae supporting each side’s Motion for Summary

Judgment filed once the case was remanded to state court.

The Second District Court of Appeal misconstrued this

distinction.

The circuit court determined that Respondent’s claim

of denial of access to public records was moot because

Petitioner had already furnished the requested records, and

that it lacked jurisdiction to determine whether Petitioner

may properly claim copyright protection for works in his

office, because that is a question of federal law.

Respondent timely appealed the circuit court’s

decision to Florida’s Second District Court of Appeal, a state

court of intermediate jurisdiction. The Second District

reversed the trial court, holding that Petitioner “has no

authority to assert copyright protection in the GIS maps,

which are public records.” MicroDecisions, Inc. v. Skinner,

889 So. 2d:871, 874 (Fla. 2% DCA 2004).

REASONS FOR GRANTING THE PETITION

This case presents an important , urisdictional issue,

because it represents the first time that a state court has

ignored 28 U.S.C. § 1338 to determine for itself that

someone was improvidently granted a Certificate of

Registration from the U.S. Copyright Office and that a

public official of the State of Florida may not lawfully hold a

copyright. Entitlement of public bodies to copyright

protection may be dictated by state law, as suggested in

Bldg. Officials & Code Adm’rs v. Code Tech, Inc, 628 F.2d

730, 735-36 (1* Cir. 1980), but the application of such law

has heretofore been made exclusively by federal courts,

pursuant to 28 U.S.C. § 1338.

The Second District Court of Appeal also notes the

conflict between its decision and a decision of the Second