International Tape Manufacturers Association, Plaintiff-appellee, v. Richard Gerstein et al., Defendants-appellants, 494 F.2d 25 (5th Cir. 1974)

Plaintiff-appellee International Tape Manufacturers Association ('ITMA') contends that the Florida tape piracy statute¹  is in conflict with the federal statute extending copyright protection to sound recordings²  and thus unconstitutional under the Supremacy Clause.³ Because the court below prematurely rushed to judgment when the record did not reveal a justiciable controversy we must remand this case for further proceedings.

Appellee is an association whose members 'manufacture tape products by transferring sound recordings on phonograph records or discs with the attempt to sell or cause to be sold these products in interstate commerce.'⁴  Appellants are Florida's attorney general and state's attorneys. ITMA argues that appellants should be enjoined from enforcing the Florida tape piracy law because it grants a perpetual copyright for sound recordings and thus defeats the federal policy of giving only limited copyright protection to recordings. Whereas a copyright protects a recording for only fifty-six years,⁵  the Florida law gives eternal protection by completely forbidding copying another's recording for profit without consent.

The procedural history of this case is brief. On January 31, 1972, ITMA filed its complaint asking for declaratory and injunctive relief. On February 7 it filed an 'application for designation as class action and for temporary restraining order prohibiting the enforcement of an unconstitutional act,' which the trial court granted March 2. On March 3 defendants/appellants filed motions to dismiss on the grounds that the complaint failed to show, inter alia, federal jurisdiction.⁶  The parties submitted briefs discussing the merits of the case and preliminary questions such as jurisdiction, ripeness, and abstention. Dispensing with further pretrial activities, the court below on June 13, 1972, issued a thirty-five page opinion declaring the Florida statute void and enjoining its enforcement.

The trial court had held no hearing, had received no evidence or affidavits,⁷  and had given defendants no opportunity to file an answer. There was no discovery. No one had moved for a summary judgment or judgment on the pleadings. The court simply responded to defendants' motion to dismiss by rendering judgment for plaintiff ITMA.

The abbreviated nature of the proceedings below helps to explain the fatal flaw in ITMA's case: the absence of a justiciable controversy. More precisely stated, the record does not show a controversy ripe for adjudication, and ripeness is a constitutional, jurisdictional prerequisite to both injunctive and declaratory relief. United Public Workers of America v. Mitchell, 1947, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. See O'Shea v. Littleton, 1974, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674.

The general rule for determining whether ripeness exists is easy to state and hard to apply.

The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests . . .. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 240-241, 57 S. Ct. 461, 464, 81 L. Ed. 617. The controversy cannot be hypothetical abstract, academic or moot. Id.

The Supreme Court itself recognizes that its test cannot be applied with mathematical certainty.

The difference between an abstract question and a 'controversy' . . . is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy.

Maryland Casualty Co. v. Pacific Coal & Oil Co., 1941, 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826, quoted in Golden v. Zwickler, 1969, 394 U.S. 103, 108, 89 S. Ct. 956, 959, 22 L. Ed. 2d 113.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought.

Poe v. Ullman, 1961, 367 U.S. 497, 508-509, 81 S. Ct. 1752, 1759, 6 L. Ed. 2d 989. In fact at times the ripeness concept has proven so slippery that its application has produced contradictory results. Compare Poe v. Ullman, supra, with Epperson v. Arkansas, 1968, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228. See K. Davis, Administrative Law Text 21.03 (3d ed. 1972).

While the case law reveals no precise ripeness formula, it indicates that one challenging a statute must demonstrate that he is immediately injured or jeopardized by its operation.⁸  Absent such a showing his case is not ripe, and the court's adjudication would be an advisory opinion treating a hypothetical case.

In the past plaintiffs have demonstrated injury or jeopardy by showing a previous prosecution coupled with their continuing, or desiring to continue, the illegal activity. See, e.g., Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324; Zwickler v. Koota, 1967, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444. At times an official's threat to enforce the statute against plaintiff has been enough to create ripeness if plaintiff alleged he had engaged, was engaging, or desired to engage in the prohibited activity. See California v. LaRue, 1972, 409 U.S. 109, 93 S. Ct. 390 n. 3, 34 L. Ed. 2d 342; Lake Carriers' Association v. MacMullan, 1972, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257; Public Utilities Commission of California v. United States, 1958, 355 U.S. 534, 78 S. Ct. 446, 2 L. Ed. 2d 470. Cf. Police Department of City of Chicago v. Mosley, 1972, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212. And at other times plaintiffs have gotten by with a showing that they reside in the state whose law they challenge and that the law forbids their desired course of action. See, e.g., Roe v. Wade, 1973, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147; Epperson v. Arkansas, 1968, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228.

The cases suggest that one does not present a ripe controversy if he shows no realistic possibility that the challenged statute will be enforced to his detriment. Compare Poe v. Ullman, 1961, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989, with Doe v. Bolton, 1973, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201; see Boyle v. Landry, 1971, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696; Younger v. Harris, 1971, 401 U.S. 37, 42, 91 S. Ct. 746, 749, 27 L. Ed. 2d 669; Public Service Commission of Utah v. Wycoff Company, 1952, 344 U.S. 237, 73 S. Ct. 236, 97 L. Ed. 291. A specific threat of enforcement is not mandatory, but plaintiffs should somehow demonstrate that the statute poses more than an imaginary threat to their well-being. See Doe v. Bolton, supra (others prosecuted under predecessor statute).

With these observations in mind, we turn now to the instant case. The record contains no evidence, but merely the allegations in ITMA's complaint.⁹  The complaint states that ITMA's members are in the business of making tape recordings from phonograph records and selling them in interstate commerce. It does not tell us where the tapes are made or where they are sold. Nor do we know if the members desire to conduct business in Florida in the future. Thus we do not know if the members are now, or ever will be, subject to the laws of Florida.

To muster a threat of prosecution the complaint alleges:

Plaintiff is informed that the filing of criminal complaints is contemplated in that plaintiff has announced his intent of transporting and selling in interstate commerce the products which he manufactures; said sale being in violation of the aforementioned acts if said acts were lawful.

This allegation means only that plaintiff believes its members' duplicating activities, if carried on in Florida, would violate the Florida tape piracy law; it does not claim a specific threat of prosecution by Florida authorities. There is nothing in the record to show that anyone has been prosecuted, or threatened with prosecution, under the challenged law.

Had the proceedings below continued beyond the complaint and motions to dismiss, the record may have been developed to show a controversy ripe for adjudication. But in its present state it gives us no reason to believe that the Florida tape piracy law impinges in the least on the Association's activities. It alleges no threat of prosecution; in fact it fails to describe the nature and location of the members' activities in sufficient detail to show that Florida law will ever govern them.¹⁰  Since ITMA has shown only an imaginary threat to its members' well-being, we have before us nothing more than a request for an advisory ruling on the constitutionality of Florida's tape piracy law. See Gaillot v. Dept. of Health, Education, and Welfare, 5th Cir. 1972, 464 F.2d 598, 599, cert. denied, 409 U.S. 1060, 93 S. Ct. 559, 34 L. Ed. 2d 512.

To summarize, the record fails to show a ripe controversy, and its inadequacy is due in part to the trial court's abbreviation of the proceedings below. Therefore we shall remand this case to permit the parties to establish its factual background in the record and to sharpen the issues controverted. Remanding also will permit the trial court to consider Goldstein v. California, 1973, 412 U.S. 546, 93 S. Ct. 2303, 37 L. Ed. 2d 163, which was decided subsequent to the trial court's decision in the instant case.

Vacated and remanded.