## Facts

- Carol Loeb Shloss, a literary scholar, wrote a biography concerning Lucia Joyce and relied on Joyce-family letters, manuscripts, and other unpublished materials.
- The Estate of James Joyce, through its trustee, objected to Shloss’s use of Joyce-family materials and asserted she was forbidden from using specified categories of Lucia Joyce materials.
- The Estate communicated objections and litigation threats to Shloss and her publisher, rejecting reliance on fair use and referencing its history of enforcing rights.
- Shloss alleged the threats caused her publisher to remove or alter quotations and references, resulting in a materially reduced version of the work.
- Shloss prepared a planned electronic supplement (a website) to publish omitted quotations and related Joyce-family materials.
- After disputes over website content, the Estate asserted it had provided a covenant not to sue as to certain materials, but later objected to Shloss’s broader planned supplement and reserved rights if she proceeded.
- Shloss filed suit seeking declaratory and injunctive relief that the specific planned uses in the electronic supplement would not infringe and would be protected by fair use.

## Issues

1. Whether Shloss’s declaratory-judgment action presented an Article III “actual controversy” under the Declaratory Judgment Act when she alleged credible threats of enforcement affecting specific planned uses.
2. Whether the Estate’s asserted covenant not to sue eliminated any reasonable apprehension of suit and mooted jurisdiction.
3. Whether declaratory relief concerning a not-yet-public supplement would be an impermissible advisory opinion or insufficiently ripe.

## Decision

- The court denied the Estate’s motion to dismiss for lack of subject-matter jurisdiction.
- The court held the pleadings alleged a substantial, immediate dispute between adverse parties regarding a specific, planned course of conduct and a reasonable apprehension of suit.
- The court held the Estate’s purported covenant not to sue did not eliminate the controversy because it was limited and did not clearly cover the expanded uses; the Estate’s reservation of rights supported continuing apprehension.
- The court rejected the advisory-opinion argument because Shloss identified concrete intended uses and alleged she had prepared the supplement but refrained from publication due to the Estate’s conduct.
- The court granted the motion to strike in part, removing limited allegations, while allowing the core declaratory-judgment claims to proceed.

## Legal Principles

- Declaratory-judgment jurisdiction requires a substantial controversy between parties with adverse legal interests, of sufficient immediacy and reality to warrant declaratory relief.
- In copyright declaratory actions, credible enforcement threats and a plaintiff’s intended conduct that could implicate liability can establish a reasonable apprehension of suit.
- A defendant’s partial or ambiguous covenant not to sue does not necessarily moot a case, particularly where it does not clearly cover the challenged conduct and the defendant continues to reserve rights.
- A plaintiff need not publish first and risk infringement liability to obtain declaratory relief when alleged threats have already deterred a well-defined, concrete course of conduct.

## Conclusion

The court allowed a scholar’s prepublication declaratory-judgment action to proceed, holding that the Estate’s alleged threats and objections created an actual controversy over specified planned uses and that a limited covenant not to sue did not remove jurisdiction where the risk of enforcement reasonably remained.


Shloss v. Sweeney, 515 F. Supp. 2d 1068 (N.D. Cal. 2007)