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Thursday, June 28, 2012

The Outer Limits of Copyright Law -- Part 2


Intellectual property law is interesting because the issues it addresses arise in interesting places and in interesting ways. A good example of this is in the area of published laws. Are laws protected by copyright? Do they belong to someone? The case of Veeck v. Southern Building Code Congress Int’l, Inc. 293 F. 3d 791 (5th Cir. 2002) raised this issue.  

In Veeck, the towns of Anna and Savoy had adopted as their official building code the model codes promulgated by the Southern Building Code Congress (SBCCI).  When the plaintiff, Mr. Veeck, posted on his web site the towns’ building codes, the SBCCI requested that the codes be removed, claiming that Veeck had violated the SBCCI’s copyright.  Veeck filed for a declaratory judgment to determine whether he was in fact violating SBCCI’s copyright.  

The scenario in the Veeck case is quite common.  Rather than draft their own codes, federal, state, and local governments frequently adopt as law standards developed by private, not-for-profit  associations, such as the American Institute of Electrical Engineers or the International Code Council.  In fact, there are hundreds of privately-developed standards adopted in whole or in part by governmental entities. The problem for the private associations is that they frequently sell their standards for substantial sums of money.  If an association’s  standards become part of the public domain when adopted by a governmental entity, the association stands to lose a source of revenue. 

So what happens to an association’s copyright when a governmental entity adopts their standards into law? Veeck lost both at trial and on his initial appeal to the Fifth Circuit. However, the Fifth Circuit re-heard Veeck’s case en banc and found for Veeck .  The court held “that as law, the model codes enter the public domain and are not subject to the copyright holder’s exclusive prerogatives.”  The court based its holding on the “merger doctrine,” which provides that when expressed ideas merge with the expression, they become “facts” that cannot be copyrighted.  In addition, the court emphasized that public policy requires that laws be freely available to the public. The Supreme Court refused to grant cert. in this case. 

I came upon this issue through an article on boingboing.net. The article was written by Carl Malamud, who runs the web site Public.Resource.Org. Public Resource.org has an ongoing project in which they are posting these codes in PDF format on their web site.

This Fifth Circuit’s opinion is also noteworthy for the reason that they cited to an article by UHLC  Professor Craig Joyce ( L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 U.C.L.A. L. Rev. 719, 751–58 (1989)).

And now we return you to your normally scheduled programming. 

1 comment:

  1. The papers by Professor Joyce were a real inspiration for me. I'd particularly recommend "'A Curious Chapter in the History of Judicature': Wheaton v. Peters and the Rest of the Story (of Copyright in the New Republic)." Available on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=801226

    When standards bodies assert copyright over documents that have been incorporated by reference into the Code of Federal Regulations, we ask them to go back and look at Wheaton v. Peters. If private bodies are correct in their copyright claims, the Marshall court would have found for Wheaton.

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