Thing 001231 (RegionalWeb)

Since 1940, the Southern Building Code Congress International (SBCCI) wrote model building codes for the southern region of the United States such as for example: Standard Building Code Standard Plumbing Code, Standard Gas Code, Standard Fire Prevention Code and Standard Mechanical Code. These model codes applied to the construction, alterations and demolition of buildings. SBCCI is a not-for-profit organization with offices in Birmingham, Alabama, with more then 2500 governmental members represented by fire marshals, city and county officials and approximately 14000 other members, for example, engineers, architects, homebuilders, contractors, trade associations, manufacturers, universities, etc... SBCCI financed itself mainly by selling printed and electronic copies of the code to towns, libraries, architects, engineers, contractors, etc... Members were charged considerably less for copies of its codes than non-members. SBCCI obtained copyrights in their model building codes. SBCCI suggested to towns that their model code would be adopted inside their law. And most cities have adopted their code as law. Since 1994, the Southern Building Code Congress International has together with Building Officials Code Administrators International (BOCA) on the East Coast and the International Conference of Building Officials (ICBO) on the West Coast become incorporated inside the International Code Council (ICC) who develops now a single set of model construction codes called International Building Code.

In 1997, Peter Veeck posted the Texas building codes on the RegionalWeb at www.texoma.net. RegionalWeb was a non-profit website which provided regional information about North Texas. Peter Veeck lived in Denison, a small city 70 miles north of Dallas. While renovating his building, he tried to consult a copy of Dension’s building code. After learning that Denison had adopted SBCCI’s 1000 pages and several volumes of it’s building codes as its law, Veeck tried to obtain a copy of Standard Building Code. Failing to locate Standard Building Code at local book stores or libraries, Veeck ordered from SBCCI an electronic copy of their building code. He payed $72 in order to obtain it. Then Veeck cut and pasted the data and published the 1994 editions of Standard Plumbing Code, Standard Building Code, Standard Fire Prevention Code, Standard Mechanical Code and Standard Gas Code on the web page. Veeck’s web site did not specify that the codes were written by SBCCI, instead he identified them as the building codes of Anna and Savoy, Texas.

When it learned that Veeck had posted copies of its codes on RegionalWeb, SBCCI sent him a cease and desist letter. Veeck brought legal action against SBCCI, seeking a declaration that he did not violate copyright. SBCCI counter claimed alleging copyright infringement. On March 24, 1999, the court case Veeck v. Southern Building Code Congress International took place at United States District Court in Texas. Judge David Folsom stated:

Due process [...] Mr. Veeck rel[ies] upon the due process requirement of free access to the law. [...] [T]here is no question that SBCCI is a private non-profit corporation which carries out research, compiles data, drafts standardized codes, and then prints them in a usable fashion for its customers. Further, SBCCI offers services in conjunction with the printing of its codes to assist the reader in better understanding its codes. SBCCI bears the financial weight of this process. The only public money used to facilitate SBCCI’s work is that income derived from the sale of SBCCI’s product. [...] [T]he production of the standardized codes provides the economic incentive for SBCCI to produce and maintain the standardized codes. [...] Non-profit organizations that develop these model codes and standards warn they will be unable to continue to do so if the codes and standards enter the public domain when adopted by a public agency. [...] [T]he evidence presented by SBCCI and through Mr. Veeck establishes that Mr. Veeck did obtain access to the municipal codes. [...] [O]ther than the City of Savoy, where Mr. Veeck was told a copy of the codes were at “public works”, there was no other municipality where he looked where he could not locate the codes. [...] The evidence presented by SBCCI establishes that in the cities of Sherman and Denison, Texas, the model codes as adopted by these municipalities are available to the public. [...] [T]he Court finds that Mr. Veeck’s assertions of violations of due process and lack of access are without merit and no genuine issue of material fact exists in his claims. [...] Accordingly, the Court finds that SBCCI’s works should be afforded their copyright protection. [...] Further, if Mr. Veeck’s access to the codes is slightly limited by enforcement of [SBCCI’s] copyright against ... wholesale copying, this will not inflict injury on the opportunity for public debate [...]. [...]

Idea-Expression Merger [...] A copyright protects the expression of an idea but not the idea itself. Under the merger doctrine, however, expression is not protected when there are no or few other ways of expressing a particular idea. [...] Such is not the situation in the present case where model building codes can be and are planned, developed, and published by a number of non-profit organizations. [...] SBCCI’s model codes are but one way of expressing an idea, but its codes are not the only way of expressing that same idea. The Court finds that the subject of building codes is open to a number of different types of expressions. Therefore, the Court finds that no merger of fact/idea and expression have occurred to prevent SBCCI from enforcing its copyrighted works. [...]

Misuse [...] As the organization which maintains the standard codes, SBCCI claims copyright interest in the codes and each title is registered in the Copyright Office. These codes are offered for adoption as local construction ordinances to any local government, at no cost, and with no obligation on the part of the government unit to become a member of SBCCI. The total cost of preparation, promulgation, and maintenance of the codes is borne by SBCCI, which includes the input of thousand of design professionals, building contractors, building officials from all over the country, construction industry groups, trade associations, and other interested citizens. It is from this pool of knowledge and expertise, compiled in a readily usable and understandable form, that the codes are offered to the local governments at no cost to the public. [...] The Court finds that there exists no misuse of SBCCI’s copyrights with regard to allowing municipalities involved in this case to adopt by reference its standardized codes. [...]

Waiver [...] The facts of the present case reveal no express waiver. To the contrary, SBCCI expressly reserved its copyright in the codes adopted by reference by the municipalities. Further, the materials which Mr. Veeck actually received from SBCCI contained the copyright expressions [...]

Fair Use [...] [T]he Court finds that Mr. Veeck’s use of SBCCI’s copyrighted works did not amount to a “fair use”. [...] SBCCI has more than demonstrated that this particular use by Mr. Veeck and the affect of widespread use in this manner would be harmful. [...]

Infringement [...] Mr. Veeck has admitted that he copied the codes from SBCCI’s materials and published them on his website. [...] In essence, Mr. Veeck did not publish the law. Mr. Veeck ordered a copyrighted work from SBCCI, edited it for his use, and the published the material to those members of the public who may have Internet access. As such, Mr. Veeck violated the copyrights of SBCCI. [...]

The court held that Veeck infringed upon SBCCI’s copyrights and had to withdraw the Internet pages and pay $2500 in damages. Peter Veeck appealed the decsion.

On February 2, 2001, the court case Veeck v. Southern Building Code Congress International took place at United States Court of Appeals Fifth Circuit. Judge Wiener stated:

[...] The core purpose of copyright law is “to secure a fair return for an author’s creative labor” and thereby “to stimulate artistic creativity for the general public good”. [...] [T]here is no question that SBCCI holds valid copyrights to the building codes and that Veeck copied the codes by placing them on the Internet. [...] Veeck contends that once SBCCI’s model codes are enacted into public law they lose their copyright protection under principles of due process, freedom of speech, and the affirmative defenses of merger, misuse, waiver, and fair use that are peculiar to copyright law. [...]

Due Process/Public Domain [...] [W]e shall assume that due process requires at a minimum that the codes should be available for inspection and copying at the city offices in towns where they have been adopted by reference. [...] Due process requires that the public have notice of what the law is so that the people may comply with its mandates. Thus the question is whether, once adopted into law, SBCCI’s codes fall outside its exclusive domain and into the public domain by virtue of the requirements of due process. [...] Should copyright attach to regulatory codes that, although drafted by private industry groups, have subsequently been enacted into law? [...] In the instant case, [...] a policy judgment is indispensable to our balancing of the public interests in, on the one hand, encouraging innovation through copyright and, on the other hand, ensuring free access to the law. [...] [T]o strip a copyright owner of his rights when his work is adopted by a state legislature would prove destructive of the copyright interest in encouraging creativity in connection with the increasing trend toward state and federal adoptions of model codes. [...] [A court] analogized the claims it rejected in [the past] to a hypothetical holding that schoolbooks lose their copyright once assigned in compliance with a school curriculum mandated by law. [...] We believe that if code writing groups like SBCCI lose their incentives to craft and update model codes and thus cease to publish, the foreseeable outcome is that state and local governments would have to fill the void directly, resulting in increased governmental costs as well as loss of the consistency and quality to which standard codes aspire. [...] [T]hese codes and standards are widely used and adopted by local and state government and federal authorities throughout the United States who do not otherwise have the necessary facilities and resources to develop these safety standards independently. [...] Nonprofit organizations that develop these model codes and standards warn they will be unable to continue to do so if the codes and standards enter the public domain when adopted by a public agency. [...] Because under these facts we conclude as a matter of law that the codes here at issue had not entered the public domain, Veeck’s act of copying infringed SBCCI’s copyrights, and no due process or other policy concern excuses that infringement. [...]

Merger [...] [A]ccording to Veeck, there can be only one expression of the law: Once adopted by the government, the model code merged into the body of the law. Therefore, concludes Veeck, there was no other correct way to express the building code law [...]. [...] [T]he merger doctrine has been applied to the question whether a work was copyrightable at the time of its creation [...]. [...] When we examine SBCCI’s works at the times of their creation and ask whether at that instant they merged with the idea of “building codes”, we conclude that the expression does not merge instantly with the idea because [...] there remain many ways to write model building codes, not just one. [...] SBCCI’s copyright does not stifle independent creative expression by those who would seek to develop comparative or better coding systems [...] It simply prevents wholesale copying of an existing system [...] SBCCI’s building codes are infused with the opinions of their authors, from the requirements chosen in the codes to their arrangement, level of detail, and grammatical style. [...] [W]e conclude that merger is not a valid defense for Veeck. [...]

Free Speech [...] Veeck’s Free Speech defense is [...] weakened by the fact that he did not first obtain copies of the codes of these two cities and then publish them on the Internet. Instead, Veeck purchased directly from SBCCI a copy of its 1994 Standard Codes, which arrived bearing a copyright notice and a license agreement. He nevertheless copied that set onto his computer and he posted it on the web, identifying it as containing the municipal codes of the two towns. [...] In enforcing its copyright in its model codes, SBCCI is not stifling access to or speech about the law. The First Amendment is not violated here. [...]

Misuse [...] Veeck [...] has raised no genuine issue of material fact regarding SBCCI’s purported misuse of its copyright. The summary judgment record is devoid of evidence that the organization mandates the exclusive use of its codes or any of its other services when a governmental subdivision adopts one of the codes. There is thus no evidence of misuse that would prevent enforcement of SBCCI’s copyright. [...]

Waiver [...] Neither can Veeck prevail on his assertion that SBCCI expressly or impliedly waived its right to copyright protection by encouraging municipalities to adopt its codes by reference. A right such as copyright may be waived by inaction. [...] SBCCI has not waived its copyright in its model codes. [...]

Fair use [...] When, as with Veeck’s activity here, the use of a copyrighted work is noncommercial, defeating a fair use defense requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. [...] Even though the use to which Veeck put SBCCI’s works is not harmful per se, it could severely undermine the market for those works if such use were to become widespread. [...] [T]he potential harm prevents him from prevailing on a fair use defense. [...]

Copyright Infringement [...] SBCCI holds valid copyrights in its codes, and Veeck has expressly admitted copying them. [...] [T]he district court was correct in holding that SBCCI established copyright infringement. [...]

Although judge Little dissented from the decision of the majority, the court of appeal concluded that copyright protection of privately authored model codes does not stop to exist when the codes are adopted by local governments and remains enforceable as long as the citizenry has reasonable access to such publications of law. The court confirmed the previous decision. Veeck appealed the decision.

On June 7, 2002, the court case Veeck v. Southern Building Code Congress International took place at United States Court of Appeals Fifth Circuit. Judge Edith Jones stated:

[...] The issue in this [...] case is the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become “the law”. Specifically, may a code-writing organization prevent a website operator from posting the text of a model code where the code is identified simply as the building code of a city that enacted the model code as law? [...] The answer to this narrow issue seems compelled by three sources: the Supreme Court’s holding that “the law” is not copyrightable; alternatively, the Copyright Act’s exclusion from its scope of “ideas” or “facts”; and the balance of case law. [...]

The Supreme Court’s View [...] Excluding “[T]he law” from the purview of the copyright statutes dates back to this nation’s earliest period. [...] “the law”, whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright. [...] [T]hat non-governmental employees who draft model statutes or regulations may be entitled to copyright protection, raises troubling issues. [...] [G]overnment entities necessitate continuous participation by private experts and interest groups in all aspects of statutory and regulatory lawmaking. [...] Not only is the question of authorship of “the law” exceedingly complicated [...] but in the end, the “authorship” question ignores the democratic process. Lawmaking bodies in this country enact rules and regulations only with the consent of the governed. The very process of lawmaking demands and incorporates contributions by “the people”, in an infinite variety of individual and organizational capacities. Even when a governmental body consciously decides to enact proposed model building codes, it does so based on various legislative considerations, the sum of which produce its version of “the law”. In performing their function, the lawmakers represent the public will, and the public are the final “authors” of the law. [...] [F]ree access as a policy based on the concept of due process, the people’s right to know what the law requires so that they may obey it and avoid its sanctions. [...] [P]ublic ownership of the law means precisely that “the law” is in the “public domain” for whatever use the citizens choose to make of it. Citizens may reproduce copies of the law for many purposes, not only to guide their actions but to influence future legislation, educate their neighborhood association, or simply to amuse. If a citizen wanted to place an advertisement in a newspaper quoting the Anna, Texas building code in order to indicate his dissatisfaction with its complexities, it would seem that he could do so. [...] [I]t is difficult to reconcile the public’s right to know the law with the statutory right of a copyright holder to exclude his work from any publication or dissemination. [...] “[T]he law”, whether it has its source in judicial opinions or statutes, ordinances or regulations, is not subject to federal copyright law. [...] [W]e hold that when Veeck copied only “the law” of Anna and Savoy, Texas, which he obtained from SBCCI’s publication, and when he reprinted only “the law” of those municipalities, he did not infringe SBCCI’s copyrights in its model building codes. [...]

Merger Doctrine [...] If an idea is susceptible to only one form of expression, the merger doctrine applies [...] Veeck copied the building code of the towns of Anna and Savoy, Texas, based on their adoption of a version of the SBCCI model code. [...] [The codes] are the unique, unalterable expression of the “idea” that constitutes local law. [...] It should be obvious that for copyright purposes, laws are “facts”. [...] SBCCI and the dissent next urge the inapplicability of the merger doctrine because there are many possible ways to express model codes. [...] What SBCCI and the dissent ignore, however, is the graphic merger of its model building codes with “the law” as enacted by Anna and Savoy, Texas. [...] Veeck could not express the enacted law in any other way. [...] The building codes of Anna and Savoy, Texas can be expressed in only one way; they are facts. Veeck placed those facts on his website in precisely the form in which they were adopted by the municipalities. [...] We emphasize that in continuing to write and publish model building codes, SBCCI is creating copyrightable works of authorship. When those codes are enacted into law, however, they become to that extent “the law” of the governmental entities and may be reproduced or distributed as “the law” of those jurisdictions. [...]

Case laws [...] [N]early every other pertinent case held that copyright protection may not be asserted for the text of “the law”. [...] This case does not involve references to extrinsic standards. Instead, it concerns the wholesale adoption of a model code promoted by its author, SBCCI, precisely for use as legislation. Caselaw that derives from official incorporation of extrinsic standards is distinguishable in reasoning and result. [...] If a statute refers to the Red Book or to specific school books, the law requires citizens to consult or use a copyrighted work in the process of fulfilling their obligations. The copyrighted works do not “become law” merely because a statute refers to them. [...] In the case of a model code, on the other hand, the text of the model serves no other purpose than to become law. [...]

Policy Arguments [...] SBCCI’s [...] arguments center on the plea that without full copyright protection for model codes, despite their enactment as the law in hundreds or thousands of jurisdictions, SBCCI will lack the revenue to continue its public service of code drafting. [...] [T]he success of voluntary code-writing groups is attributable to the technological complexity of modern life, which impels government entities to standardize their regulations. The entities would have to promulgate standards even if SBCCI did not exist, but the most fruitful approach for the public entities and the potentially regulated industries lies in mutual cooperation. The self-interest of the builders, engineers, designers and other relevant tradesmen should also not be overlooked in the calculus promoting uniform codes. [...] In short, we are unpersuaded that the removal of copyright protection from model codes only when and to the extent they are enacted into law disserves “the Progress of Science and useful Arts”.

Although judges Higginbotham and Wiener dissented from the decision, the majority of the court of appeal concluded that SBCCI’s purpose was to get its codes enacted as laws and when embodied in law the code loses copyright eligibility. The court reversed the previous decision.