questions of federal subject matter jurisdiction but it is important to be keep the comp the context in mind because the factual setting and the legal arguments that brought us to this point would make no sense if this were not ultimately a copyright case the the fundamental problem of subject matter jurisdiction because this is a an appeal from a dismissal for lack of subject matter just action is it didn't over review fast case had presented four distinct issues as to why four distinct grounds for why there was subject matter jurisdiction federal question in the form of copyright infringement allegation and federal question in the form of federal preemption by the copyright law of relate state court claims also diversity the diversity of citizenship is undisputed it's established the question of the amount in controversy however also splits into two parts because fast pace alleged two completely separate reasons why the case involves more than seventy five thousand dollars so of those four issues which i don't think i'm going to have time to discuss this morning  i will point out that the copyright preemption issue was never even discussed by district court you have another question and whether or not joining the state of florida was required under ninety  b i can imagine that the states not implicated in this case but your honor i think the the the fundamental question of indispensability of of the state entities that have different obligations with regards to your client and its competitor so there's at least the possibility there is a possibility that one that either the secretary of state's office or the state bar might express him interest in this case neither has but we don't know one way or the other whether they are nobody asked the secretary of state whether  secretary thought that the secretary was giving an exclusive right to law riders the record doesn't show one way or the other whether the state thinks it has given low riders an exclusive right basics to assert here is the right to learn what the law of the state of georgia is from the official website of the secretary of state or if you want to copy what's on the website do you that is correct  that and you say that has to be derived in a way from your agreement with the state no your honor and anyone oh your here is taking a position or like a lawyer or somebody matter that the because the law is open to the public and as it must be in a free society as all the courts of who have considered the issue so your rights don't derive from the state of what you're talking about are rights at all our rights are proceeding to those of the state and under the i don't derive from the state at all they do not derive from the state at all that they're not stemmed from look your contractual relationship with the state our right to publish the law does not stem from our contractual relationship with the state that is correct but might mean i guess i'd frame it that this way if the secretary of state thought and intended to give law riders the exclusive right to publish this and to prevent a compiler from downloading it as you propose to do if in fact the state wanted to prohibit that then the state would have an interest in this proceeding case and certainly if you win that intent is going to be overridden if in fact that was the state's intent your honor we we  the record does not explicitly say so except to the extent that the state's contract with law writer it says that the information is supposed to be put on the secretary of state's website without any registration requirement without limitation but it also gives them a five thousand dollars break on the price if somebody up as the set if somebody buys the hardbound physical size set yes in fact that is that is is in directly supports they the the word hard copy is not in there your honor but the actual text of what is there is is is how how do i know that the secretary of state did not intend to make low riders the only online place to get the set and then to recover for the state five thousand dollars if anybody did what fast case is doing the second part of the question is that there is no way as a practical matter to know whether you're buying the complete set unless you're buying the physical set the important part of the question i think your honor is that we give the state the benefit of the doubt that it is not trying to do something that it has no power under law to do the state cannot because a say to me r j has never tried to do something that federal law would forbid and when the state has tried to do that and anyone has objected the courts the federal courts step in to protect the rights of the others but only after giving the state a chance to be heard on the issue isn't that right that if george jordan's question why doesn't the state get a chance to address the question if the state wishes a change to address the question the state has every immunity without being hearing and saying you don't have to go do it i'm sorry but well here's how it would work and they tell me what's wrong with this disposition why would it be wrong for us to say there's an indispensable intend to give any exclusive rights we're not going to try to buck into the copyright system we've got no interest then you're fine but if the secretary says yes i want my five thousand dollars back and  secretary of state is unquestionably aware of this litigation and has had an opportunity to intercede the district court did not even rule on the issue of indispensable party to recognize that the federal district court is the place where this case needs to be and where that issue needs to be decided or let's let's turn to that for a second what what do we have in the record concerning your contract with the georgia bar the the allegation in the complaint which is undisputed and this was a motion to dismiss is that if the contract with the georgia bar is based on a per true because of the posture of the cases in it but your allegation is not just that you have a contract that requires you to do x but that if you don't do x you might be subject to termination and without knowing what that contract says it's really hard i'm trying to figure out what the district judge was thinking in saying that your claim that the amounting controversy was over seventy five thousand dollars was speculative because that seemed to be to me an odd ruling given your allegation but as i started to think about it more i thought well you don't know what that contract says because let me give you an example and again i have no idea what the contract provides but if the contract says here the things that fast case has to do for us one two three four and five if ask ace doesn't do too then it's a twenty thousand dollars penalty if ask ace doesn't do three it's a forty thousand dollars penalty if i ask ace doesn't do five terminations for the entire contract having the contract would have certainly helped maybe made up might not have been necessary but it certainly would have helped to figure out whether or not your allegation that you were likely to suffer seventy five thousand dollars or more a year in losses was speculative or not what's the response and the and yes the contract itself is is not in evidence but the but that is the allegation that is undisputed it is also alleged that the contract is worth seventy eight more than seventy five thousand dollars per year and we have explain why it is impossible to state a specific precise amount because it's according to the number of members of the par which will vary from time to time but both of those allegations are there in those allegations are not intersection of copyright and public policy that's not at all what this case is about this case is about whether or not fast case can come in and get something for free the intersection of copyright and public policy is preserved my client entered into a contract with the secretary of state of georgia and it provides and any one of us anyone in this courtroom can go on the website and can look at the law and the regulations in the state of georgia that's what is required and what georgia did and the reason that i think your honour's picked up on and what i think really is that the part that maybe the district court missed is the state of georgia particularly the secretary of state is implicated here because the state of georgia chose a method by which they had to comply with the administrative procedures act they're required to publish the regulations and in the old days the pair of regulations would have been published in hard copies and you or i would have gone into the into the secretary of state's office we would have read what we wanted we would have gone to the copy machine and we would have paid to make physical copies and georgia decided well we'd rather in the age of the internet make this available to the general public and so they chose to contract with my client to publish it in an online version now what the pla wants to suggest is that's it that's all about the merits that's all about the merits right weren't you one without getting to the merits yes your honor what you want and i apologize what i'm trying to get at though is that the state choice of how to contract is why they're an indispensable part of the state shows they were going to pay twenty thousand dollars we know we don't know whether the state thinks that your website should be available to a compiler or not decided that on twelve b one although it may be that he really converted or looked at it in a twelve b six fashion because when he looked at the issues at least with regard to federal question and he looked at whether or not the eleventh circuit  the the and i maybe called it wrong i say munchkin and it's a much dick excuse me but the much nick case was a case where you had a consolidated class part of the class had registered  copyrights and part of the class did and the second circuit sue a sponsor said there isn't jurisdiction there is no subject matter jurisdiction and the supreme court said no it's not jurisdictional or what i think that the district court did here is when they looked at it they said  wait a second that wasn't a declaratory judgment action in a declaratory judgment action when you're looking at the coercive suit if lho writer had filed the suit would they be able to file the suit and what the court decided was that because they didn't register it they couldn't have filed the suit in fact the appellant's essentially admit that i think in their reply brief what they say is it is the court would have jurisdiction but it is dismissible ok and so what they're saying is the court has jurisdiction to dismiss the case now i don't think we have to get there because of rule nineteen i think rule nineteen very clearly implicates and as your honor judgment will points out the state of georgia has to say what they want they have to have the right to come in and say what they want to they will they waive sovereign immunity we don't know the there have been other cases litigated in the circuit one of which i wrote the opinion on where state agencies in florida had done contrary things conflicting things with state intellectual property state never came in parties litigated the case all the way through came up to us and what we did was sort of by the question to the florida supreme court and then the florida supreme court basically forced the state of florida to come in and say well what do we think about these conflicting state agencies so it's not unheard of for a case like this to go through without the state being joint well your honor i think that's certainly possible but in this case in order of what we're talking about and the appellant suggests that there is a blanket protection of the written word of law ok and that it can never in any instance be charged for or copyrighted yet we know that west law and lexus and others including fast case have in their repertoire in their libraries copyrighted material because of what's added in fact when you look at what happened in this instance on the record you see that fast case has argued that the threat of litigation exists because of an argument made in one of our briefs and what they failed to quote was the entire brief because in the brief what it says is we would assert a contract claim under the terms of use of the moment let's give just give you a chance right now can you assert to us that you're never going to sue these folks for downloading your material or can you not it depends what they download we don't and i take that as an answer to no you're not going to get into use that you're not going to sue so why can't they bring it to declaratory action and say look they're not entitled to so as they claim they are entitled to sue us we want to declaration that that's why we have the deck or declaratory judgment act or reasons first there's no registration so if we couldn't bring but you also claim that you well but we're not of talk we're all twelve b one not twelve b six i understand but i think that there's a distinction between the u s supreme court case in deciding whether or not a class or fix or whether or not a class settlement should be applied versus a declaratory judgment action the the much nick case isn't brought in a declaratory judgment standpoint the question really in the declaratory judgment is could my client currently as we sit here today file a copyright infringement claim and i think the answer is no you've told us you're going to what you've told them you're going to know what we've told them in law writer quote law writer would present the claim for breach of contract that would not be preempted by the copyright act comma along with a claim for copyright infringement comma depending on whether plaintiffs copied any materials authored by law writer and of quote that's right and what we're saying in that is you threaten to sue what w a copyright claim whether or not you have a legal basis for is another question well your honor what we don't know because fast case has not said what they've copied they said for years week for a period of time we copied we don't know what they've got it if they're just looking at the law and all they're copying is the actual regulation there's a there's a possible threat of litigation let me turn to the other issue which i think is a much easier how is there not an amount in controversy sufficient for diversity jurisdiction in this case given the allegation in paragraph five of the complaint because i think that under the red cab theory when you get to a declaratory judgment you have to show a preponderance of the evidence and i understand that at this to publish offer the ga regulations to all members of the state bar ga and if it's not able to quote fast cases contract with the state bar would be subject to terminate ssion causing a loss to fast case of substantially more than seventy five thousand per year if you take that allegation as true on a twelve b one or a twelve be sick because it was no evidence presented on that issue right correct so that means everybody took it as a given why isn't that enough to establish that there's a contract and that if that contract is terminated losses are going to exceed seventy five thousand dollars a year well first because i think that the there's no evidence of what the contract is now doesn't matter understood and what i think the district court said was it's speculative we don't know as your honor pointed out we don't know what the contract says in fact what we do know is that since that fast track got got a contract in two thousand and ten they allege that you have an agreement we don't know when that was we don't know when your contract was fisa be there so we don't know whole lot of things we don't have any of the tire but we have our contracts and i stand what what the district court did in my view was tak and then say there's no jurisdiction because of the mountain controversy and the court should have simply asked for a replete or so i understand what these contracts are to first place understood it and i think that the district court in looking at the her may have also recognized the fact that if they've not copied this since two thousand and sixteen and they still apparently have the contract with the state of georgia may or the state bar maybe it's not going to be terminated for the lack of updating the state regulations now i'm going to let me ask you a different question about the mountain controversy you've you've you had on the web site twenty thousand dollars this is your chance to say that  single party can click as many times as they want download as much as they want sell it as many times as they want and you're only going to claim twenty thousand dollars one time you're not going to stack them you want to tell me that you're only going to charge them twenty thousand dollars total or  are you going to say that maybe you charge him twenty thousand dollars per violation your honor we don't we don't literally yes or are you going to limit yourself to one one twenty thousand hour climb now's your chance all you have to say yes we limit to one twenty thousand our client your honor i don't believe we need to decide that don't know if you did if you did they'd buy the whole works for twenty thousand dollars and we wouldn't be here well your honor actually they could about the works for a lot less than twenty thousand dollars what they want is not only for but if you're going to if you're going to charge him twenty thousand a click all they got to do is click four times in their budget the jurisdictional minimum well they not write it in fact they they suggest that once they click once and put it on their website they count the clicks of everybody else but the amount in controversy doesn't assume one side is right it says what are you going to be arguing about in this case and if you're going to be claiming twenty thousand dollars a quick then if they intend certainly to click more than four times are going to it every day or every week hour often they're going to update then the amount of conifers is more than seventy five thousand dollars i don't understand the argument to the contrary because in the declaratory judgment wonder declaratory judgment what we're looking at is not what happens if they lose their declaratory judgment or happening what happens if they win if they win their declaratory judgment they can click all day long if they win there to clear tory judgment they don't have to pay twenty thousand dollars per click and i'm out well in excess of seventy five thousand dollars liability of voided is part of the amount of controversy now your theory is it has to be a benefit that's just not true if you are right we would never have all these insurance coverage never was his idea when we just had because of the insurance company wins there was there were jurisdiction in the first place to be able to rule on with the insurance company one that doesn't make any sense in the insurance companies only avoiding liability they're never asking for money they just want to not have to pay and i think at this point though as is joe flip pointed out what we've got are the facts and the record of before us so whether or not my client depending upon circumstances depending upon what's copied chooses to collect to charge once or never or multiple times isn't really before the court right now were the motion and the lower court found that the damages alleged were speculative now whether or not we only have what's in front of us we only have the record that is in front of us at this point again i'll go back because i only have a short period of time we believe that the lower court got it right even following the much in that case because it was a declaratory judgment action but most importantly we believe that this case should be should have been dismissed for the lack of joining the state of georgia and the secretary of state let me ask you a question about that and start this is a question to be careful what you ask for if the state is an indispensable party and can't be joined so that you can't they can't go forward with their case then when you sue them why isn't the same true you can never sue them because the state can't be joined we can sue them we can sue them in the state courts and we can see whether or not because it had a contract excuse me because they were part of the contract that's exactly right you're not a party a contract with you the state is a party of contract with me and that the issue here is not whether the state bar of georgia is implicated it's whether or not the secretary of state who under the administrative procedures act has a duty to publish the regulations it's the state but if you but if you sue them and they say this is  invalid and by the way the small suit against us can't go forward because the state's not a party and they're indispensable what do you say them well that ohio to get that in federal court i don't mean it now then that begs no that begs the question then whether or not it my threat is illusory or whether my my threat is actually i mean what you're saying no no that's not what he's does not what he's getting at he's trying to find out if you're george enjoys sovereign slash eleventh amendment immunity generally speaking in both federal court and state court right right so if you try to join the state of georgia whether it's the secretary of state and or the georgia bar association in this case and you can't because they both claim immunity and a district judge agrees so this case goes out the window and there's no federal case to go forward they decide they're going to go ahead and do what they're going to do and you decide you're going to sue them in state court for breach of contract they turn around and do what you're doing in this case and say you can't go forward unless you join the secretary of state and the georgia bar the georgia bar and the secretary of state again say sovereign immunity you can't join us can't sue us that case goes away so it's a chink was asking you is it what's good for the goose is good for the gander where are you going to be in your breach of contract claim that on the road i think we're in state court and we're trying to  the issues are and i would do so i'm not sure that i need to say anything more than subject myself to further questioning except that i think it is fair to say that the contract between fast case and the state bar which is only the is essential elements for establishing jurisdiction are actually alleged would certainly have come out in the course of litigation there would the judge in deciding  the case ultimately would not have any in any doubt remaining the in one of the fundamental problems i think in throughout the order that we're appealing from is precisely that the judge was speculating on matters that the district court should not be speculating from but should simply have relied on what was in the pleadings the