case in which the lack of a pending state action means that the impact of federal intervention upon a state's administration of its criminal laws will be minimal. Perez v. Ledesma, supra; Wulp v. Corcoran, supra. On the contrary, it is the opinion of the court that the issuance of a declaratory judgment would be highly disruptive in the present context and that the factors which require the denial of plaintiff's request for an injunction also require that declaratory relief be denied. Becker v. Thompson, supra; Cooley v. Endictor, supra; Armour and Company v. Ball, supra; Landreth v. Hopkins, supra; accord, Samuels v. Mackell, supra.
Moreover, additional factors exist which compel the same conclusion. Plaintiff alleges that 18 P.S. § 4878.1 (Supp., 1972) is unconstitutional because it purports to grant an unlimited copyright to producers of sound recordings, thereby frustrating the federal regulatory scheme the purpose of which is to require that any sound recording without limited federal copyright protection become part of the public domain. It contends that Pennsylvania's attempt to make certain activities criminal constitutes the de facto creation of an additional alternative the very existence of which is anathematic to a system of federal regulation which contemplates either limited federal protection or no protection at all. Defendants and intervenor defendant argue that it is clear that not all non-federal regulation is precluded by federal copyright legislation, e.g., 17 U.S.C.A. § 2; that recent federal legislation, viz., 17 U.S.C.A. § 1 nt (Supp., 1972) (originally enacted as the Act of October 15, 1971, Pub. L. No. 92-140, § 3, 85 Stat. 392), manifests an intention that certain rights coexist with those created by federal law and is in fact an invitation to the states to enact complementary legislation designed to protect coexisting rights; and that the Pennsylvania statute is not a copyright law at all, but rather is a state unfair competition law which applies to recordings fixed prior to the effective date of the federal act and which is therefore fully consistent with the intent of Congress as expressed in 17 U.S.C.A. § 1 nt (Supp., 1972).
The issuance of a declaratory judgment is discretionary. Zemel v. Rusk, 1965, 381 U.S. 1, 18-20, 85 S. Ct. 1271, 14 L. Ed. 2d 179; Public Affairs Associates, Inc. v. Rickover, 1962, 369 U.S. 111, 82 S. Ct. 580, 7 L. Ed. 2d 604; Eccles v. Peoples Bank of Lakewood Village, California, 1948, 333 U.S. 426, 68 S. Ct. 641, 92 L. Ed. 784; Alabama State Federation of Labor v. McAdory, 1945, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725; Brillhart v. Excess Insurance Company of America, 1942, 316 U.S. 491, 62 S. Ct. 1173, 86 L. Ed. 1620; cf. McCahill v. Borough of Fox Chapel, 3 Cir. 1971, 438 F.2d 213, 215 n. 5. In exercising its discretion, a federal court confronted with a federal constitutional question should abstain from deciding an unresolved issue of state law if the state law is fairly subject to an interpretation which may avoid or modify the federal constitutional issue. Lake Carriers' Association v. MacMullan, 1972, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257; Reetz v. Bozanich, 1970, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68; Harman v. Forssenius, 1965, 380 U.S. 528, 85 S. Ct. 1177, 14 L. Ed. 2d 50; Harrison v. National Association for Advancement of Colored People, 1959, 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152; City of Meridian v. Southern Bell Telephone & Telegraph Co., 1959, 358 U.S. 639, 79 S. Ct. 455, 3 L. Ed. 2d 562; Government and Civic Employees Organizing Committee, CIO v. Windsor, 1957, 353 U.S. 364, 77 S. Ct. 838, 1 L. Ed. 2d 894; Shipman v. DuPre, 1950, 339 U.S. 321, 70 S. Ct. 640, 94 L. Ed. 877; Spector Motor Service, Inc. v. McLaughlin, 1944, 323 U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101; Chicago v. Fieldcrest Dairies, Inc., 1942, 316 U.S. 168, 62 S. Ct. 986, 86 L. Ed. 1355; Railroad Commission of Texas v. Pullman Company, 1941, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971; King-Smith v. Aaron, 3 Cir. 1972, 455 F.2d 378; Lewis v. Kugler, 3 Cir. 1971, 446 F.2d 1343; University Day Care Center, Inc. v. Temple University -- Of Commonwealth of Higher Education, 3 Cir. 1971, 442 F.2d 1116; Musselman v. Spies, N.D. Pa. 1972, 343 F. Supp. 528. Abstention is not an automatic rule; rather, equitable discretion must be employed on a case-by-case basis to evaluate whether the required special circumstances exist. Baggett v. Bullitt, 1964, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377.
If the construction of 18 P.S. § 4878.1 (Supp., 1972) advocated by defendants and intervenor defendant is correct, the scope of the constitutional issue before the court will be narrowed significantly. Furthermore, there is a legitimate disagreement about the intended effect of the Pennsylvania statute. Therefore, this is not a case in which abstention is improper because the state law is unambiguous or in which, on any reasonable construction of state law, it is not open to an interpretation which would modify the constitutional question. Wisconsin v. Constantineau, 1971, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515; King-Smith v. Aaron, supra; Musselman v. Spies, supra.
Conversely, abstention would appear to be appropriate for several reasons. The Pennsylvania law is a very recent enactment, and the state courts have not yet had an opportunity to construe it. Any interpretation of 18 P.S. § 4878.1 (Supp., 1972) rendered by this court could only be a prediction of what Pennsylvania courts will decide when they ultimately face the issues raised. Harman v. Forssenius, supra; Alabama State Federation of Labor v. McAdory, supra; Spector Motor Service, Inc. v. McLaughlin, supra; Chicago v. Fieldcrest Dairies, Inc., supra; Lewis v. Kugler, supra; Musselman v. Spies, supra. It does the rule of law a disservice if a federal decision on an issue of state law may be overturned by a controlling decision of a state court. Railroad Commission of Texas v. Pullman Company, supra. In addition, the recent origin of 18 P.S. § 4878.1 (Supp., 1972) presents an a fortiori argument that this court should withhold judgment; time is significant in assessing the propriety of abstention because there is greater reason to anticipate a narrowing construction by state courts if a law has been recently promulgated. Musselman v. Spies, supra.
Secondly, it is a basic principle of constitutional adjudication that federal courts will not render a constitutional decision unless absolutely necessary, both to avoid the unnecessary determination of constitutional questions, e.g., Alabama State Federation of Labor v. McAdory, supra, 325 U.S. at 471, 65 S. Ct. 1384, and because federal courts do not decide abstract, hypothetical issues, Government and Civic Employees Organizing Committee, CIO v. Windsor, supra. It would violate the principles enumerated to evaluate the constitutionality of 18 P.S. § 4878.1 (Supp., 1972) prior to having obtained an authoritative construction of state law.
Finally, although the issue of abstention is entirely distinct from the question of injunctive and declaratory relief with respect to pending state criminal prosecutions, Lake Carriers' Association v. MacMullan, supra, 406 U.S. at 509 n. 13, 92 S. Ct. 1749, the proper use of the abstention doctrine avoids needless friction with state policies, whether those policies involve criminal law or the final authority of state courts to interpret state regulatory legislation. Harman v. Forssenius, supra; Martin v. Creasy, 1959, 360 U.S. 219, 79 S. Ct. 1034, 3 L. Ed. 2d 1186; Harrison v. National Association for Advancement of Colored People, supra; Alabama State Federation of Labor v. McAdory, supra; Railroad Commission of Texas v. Pullman Company, supra. It is not the function of a federal court of equity to attempt to envisage all the diverse issues which could engage the attention of state courts in prosecutions for alleged violations of state law, nor to assume to draw to federal court the determination of those issues in advance by a decree saying in what circumstances and conditions the application of the state law will be deemed to abridge constitutional rights. Douglas v. City of Jeannette, supra, 319 U.S. at 165, 63 S. Ct. 877. In the exercise of federal equitable discretion, it is of controlling significance that it is in the public interest to avoid the needless determination of constitutional questions and the needless obstruction of the domestic policy of states by forestalling state action in applying its own statutes. Alabama State Federation of Labor v. McAdory, supra, 325 U.S. at 471, 65 S. Ct. 1384.
Having decided that abstention is appropriate, this court has discretion to decline to exercise jurisdiction or to postpone its exercise in deference to a state determination of issues of state law. Harman v. Forssenius, supra, 380 U.S. at 534, 85 S. Ct. 1177. Retention of jurisdiction is generally the better procedure, but courts have ordered dismissal as well. Zwickler v. Koota, supra, 389 U.S. at 244 n. 4, 88 S. Ct. 391. Under the circumstances of this case, i.e., where abstention based upon an unresolved issue of state law is not the only ground upon which the court deems it unnecessary to reach the merits of the controversy, dismissal is proper. See Stainback v. Mo Hock Ke Lok Po., 1949, 336 U.S. 368, 69 S. Ct. 606, 93 L. Ed. 741; University Day Care Center, Inc. v. Temple University -- Of Commonwealth of Higher Education, supra; Hill v. Victoria County Drainage District No. 3, 5 Cir. 1971, 441 F.2d 416; Urbano v. Board of Managers of New Jersey State Prison, 3 Cir. 1969, 415 F.2d 247; Hander v. San Jacinto Junior College, S.D. Tex. 1971, 325 F. Supp. 1019; Ascheim v. Quinlan, W.D. Pa. 1970, 314 F. Supp. 685; Haakenson v. Parkhouse, E.D. Pa. 1970, 312 F. Supp. 929. This is especially true since the unresolved state issue is closely intertwined with plaintiff's federal constitutional claims. Cf. Reid v. Board of Education of City of New York, 2 Cir. 1971, 453 F.2d 238. Furthermore, dismissal does not necessarily mean that plaintiff need procure an authoritative construction of 18 P.S. § 4878.1 (Supp., 1972) in a state criminal proceeding; Pennsylvania offers declaratory relief as an alternative remedy. 12 P.S. § 831 et seq. Of course, if abstention is not otherwise proper, the availability of a declaratory judgment in state court is irrelevant. Lake Carriers' Association v. MacMullan, supra, 406 U.S. at 510, 92 S. Ct. 1749. However, when it does apply, the existence of state declaratory relief should ameliorate the consequences of dismissal. In any event, plaintiff is not precluded from later recourse to a federal forum if it preserves its federal constitutional claim and can satisfy jurisdictional requirements. England v. Louisiana State Board of Medical Examiners, 1964, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440; Hill v. Victoria County Drainage District No. 3, supra.
In view of the foregoing, plaintiff's request for injunctive and declaratory relief will be denied, and the action will be dismissed.