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Veeck v. Southern Building Code Congress Int'l

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Veeck v. Southern Bldg. Code Congress Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc), was a 2002 en banc 9-6 decision of the United States Court of Appeals for the Fifth Circuit, about the scope of copyright protection for building codes and by implication other privately drafted laws adopted by states and municipal governments.[1] A three-fifths majority of the court's fifteen judges held that copyright protection no longer applied to model codes once they were enacted into law.

Background

Factual context

The Southern Building Code Congress International (SBCCI) published a standard building code that it proposed as a model code for municipalities. It encourages local government entities to enact its codes into law by reference, without cost to them. The towns of Anna and Savoy in North Texas adopted the SBCCI code as law. Peter Veeck operates a website that provides free access via the Internet to information about the area of Texas north of Dallas, including some of the area's municipal codes and ordinances. He learned that Anna and Savoy had adopted the SBCCI code and went to those towns to obtain copies of the code, but as unsuccessful. He bought electronic copies of its codes from SBCCI. Despite the fact that the codes contained a copyright notice and warnings against copying, Veeck uploaded the codes on his website. SBCCI demanded that Veeck cease and desist from infringing its copyrights. In response, Veeck filed a declaratory judgment action seeking a ruling that he did not violate the Copyright Act. SBCCI counterclaimed for copyright infringement and other allegedly wrongful acts.[2]

District court ruling

The facts were not disputed and each party moved for summary judgment on the copyright infringement issue. The district court grant summary judgment in SBCCI's favor.[3]

The district court began by considering the Supreme Court's 1888 decision in Banks v. Manchester,[4] which held that judicial opinions are not subject to copyright protection. Banks in turn rests upon two grounds neither of which, the district court said, would justify invalidation of SBCCI's copyright protection:

  1. the public owns the opinions because it pays the judge's salaries, and
  2. as a matter of public policy, the whole work done by the judges constitutes the "authentic exposition and interpretation of the law," which, binds every citizen and therefore "is free for publication to all."[5]

These considerations do not apply here, the district court maintained, because "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," without payment from the public. Without copyright protection, organizations like SDCCI would be unable to continue their work. While Veeck argues that it is necessary to publish codes on the Internet to provide the public with its due process right to free access to the law, he is wrong. The fact that he purchased the codes by just ordering and paying for them shows that the public can do the same. Therefore, the court said, "Banks is clearly distinguishable to the present case or scenario as stated above. Accordingly, the Court finds that SBCCI's works should be afforded their copyright protection." [6]

The district court entered a permanent injunction and ordered an award of monetary damages.[7] An appeal followed.

The vacated panel decision

Initially, a three-judge panel of the Fifth Circuit affirmed, but its decision was vacated and the case was set for rehearing en banc. The panel concluded (a) the incentive of copyright was needed to continue production of these useful model codes; (b) there was no evidence that Veeck had been denied access to the town building codes; and (c) there was no merger of idea and expression because "contrary to Veeck's insistence-there remain many ways to write model building codes, not just one."[8]

Ruling of the Fifth Circuit

Majority opinion

Judge Edith Jones began her opinion for the nine-judge majority with this summary:

The issue in this en banc 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? Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives.[9]

Dissenting opinions

There were two dissenting opinions, one for four of the six dissenting judges, another for all six of them. The four-judge opinion argued that it should be left to Congress to decide whether such subject matter should be excluded from copyright protection.[10] They would have decided the case on contract grounds—that Veech breached to license term against copying and distribution of the code.[11]

The dissenting opinion in which all six dissenters joined would have found copyright infringement.[12] In their view the Supreme Court precedents applied only to judicial opinions.[13] The dissent regarded the majority's policy claims as mere "feel-good" and "symbolic" rhetoric, not supportable, precedent-based substantive law. The public benefits, they claimed, by delegating the code-drafting process to such organizations as SBCCI, for they can provide the service at a lower cost and in a more efficient and expert manner; however, these organizatioins need copyright protection to subsidize their public-service activity.[14]

Rulings in other circuits and subsequent developments

It is well established that judicial opinions are not protectable by copyright.[15] There is a division of authority, however, on whether to follow the Veeck case as to municipal building codes.

In International Code Council, Inc. v. National Fire Code Protection Ass'n, Inc., [16] one company engaged in the business of promoting building codes sued another such company for copyright infringement.[17] The Illinois district court interpreted Veeck to hold that it is the enactment of a model code into law that makes the code unprotectable under copyright law rather than inevitable lack of expression. The court did not reach a conclusive result, however, when the parties cross-moved for summary judgment. Among other things, the court held: "Defendant has not shown that the disputed provisions of Plaintiff's model building code are not copyrightable as a matter of law."[18]

In Atlantic Woodland Corp. v. DRH Cambridge Homes, Inc.,[19] the court considered a copyright infringement action for copying village development plans that had been accepted as part of an agreement to annex the area, so that the plans became required by law and fell into the public domain. The court held those such facts, if proved, would provide a complete defense, and it therefore denied a motion to dismiss the defense.[20]

On the other hand, in Practice Mgmt. Info. Corp. v. American Med. Ass'n, the Ninth Circuit held that incorporation of a classification system (taxonomy) for medical procedures in Medicare and Medicaid regulations does not make them unprotectable under copyright law.[21] However, the court limited the ability of the AMA to enforce its copyright against a health maintenance organization that used the taxonomy in order to comply with federal law requiring it.[22] The court viewed such copyright enforcement as copyright misuse – an inequitable extension of the copyright owner's otherwise lawful monopoly. The Ninth Circuit also considered improper a bargain that the AMA had made with the Health Care Financing Administration (HCFA), in which AMA licensed the agency to use its copyrighted taxonomy on a royalty-free basis "in exchange for HCFA's agreement not to use a competing coding system." [23]

And in CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., the Second Circuit held that incorporation of used-car valuations in insurance statutes and regulations does not make them unprotectable by copyright.[24]

In John G. Danielson, Inc. v. Winchester-Conant Props., Inc.,[25] the First Circuit declined to follow Veeck. A real estate developer had acquired a parcel of land covered by a 30-year restrictive covenant to which a previous owner had agreed. The covenant required that any residential development conform with site plan drawings submitted by the previous owner. The new owner tried to modify these restrictions; when it failed to do so it built a condominium subdivision that adhered to the site plans in the covenant. The architectural firm that had earlier designed those plans then sued for copyright infringement, and eventually won a jury verdict and a judgment in the district court for over $ 1.3 million—essentially all the profits made from the now-complete condominium project. The district court dismissed the affirmative defense based on Veeck. The defendant corporation that had built the condominium subdivision appealed. On appeal, the First Circuit held that the covenant and its drawings were not equivalent to the village zoning law nor was the village's vote to approve the restrictive covenant, incorporating by reference the drawings; it therefore held Veeck inapplicable and affirmed the judgment.[26]

In an earlier First Circuit case, however, Building Officials & Code Adm'rs v. Code Tech., Inc., the court had denied copyright protection in a building code that a private organization drafted, because the court thought the group did not need a copyright incentive to draft the code and because the court saw potentially serious due process concerns with access to the code if the copyright was enforceable.[27]

Commentary

Many academic commentators support the Fifth Circuit's approach in Veeck as advancing the public interest but some criticize it as a derogation of creators' rights and as disincentivizing.

Cunningham

Lawrence A. Cunningham,[28] compared the three Veeck opinions—the Jones majority opinion, the Higginbotham dissent, and the "blistering" Weiner dissent.[29] Cunningham saw Higginbotham's dissenting opinion as the one of the three opinions that "most resonates in expressing the federal judiciary's inherent limitations in addressing such a sprawling public policy issue."[30] In his view: "Cases and controversies federal courts resolve are not suitable forums to provide optimal solutions to the problems of private standards embodied in public law. Such a framework must be provided by a more elaborate policy-oriented process."[31] Cunningham suggests that when government endorsement abrogates copyright, as Veeck holds, perhaps that is a "taking" that the Constitution insists be based on procedural due process and adequate compensation.

Ghosh

Shubha Ghosh[32] questions the viability of a market-oriented approach in which it is assumed "that citizens do have access because either the market will provide the code to public entities, who make the decisions about access to citizens, or the market will provide to those who can pay."[33] He argues:

But by turning the drafting process into a market, one potentially turns a democratic process into a discrete transaction between a demander of laws (the legislature) and a supplier of laws (the drafting organization). Furthermore, the financing of law making through public means also undermines democratic values. In most private code drafting cases, the organization allows the state to use the model code without charge. The organization finances its enterprise through sales of the draft code to libraries, law firms, and other interested parties. In other words, general tax revenues are not used to fund law making. To the extent that tax revenues serve to maintain government accountability, the power over the purse strings is lost in the process.[34]

Ghosh considers unworkable the majority compromise in which the black-letter text of the code is not subject to copyright while the notes and comments are subject. [35] He argues that the text often cannot be understood properly without recourse to the notes and comments, because of "the interdependence between enacted code and notes, both for interpretation purposes and in the enactment process."[36] He points to alternative incentivization means: "professionals in the fields affected by particular standards and codes may have ample incentive to continue to buy the official sets of standards notwithstanding the potential availability of other, unofficial editions."[37]

Karjala

Dennis Karjala sees building codes as functional works designed to regulate how buildings are built:

The case against copyright protection for privately drafted model codes is . . . quite strong, on both public policy and traditional copyright grounds. The initial panel decision[38] and the en banc dissent in Veeck, however, as well as the cases on which they rely, show the power of the "restitutionary impulse" in the judiciary and courts' willingness to fill apparent gaps in protection by expanding copyright coverage. Even the en banc majority in Veeck was unable to craft an opinion that would treat model codes as what the opinion expressly recognizes them to be-if not as directly functional works, then as works that are designed and intended to be used as functional tools for regulating various forms of human behavior through enactment into law.[39]

Hardy

Trotter Hardy views Veeck as an example of eminent domain without compensation: "In other words, we have a case of some governmental body taking action to turn what was otherwise an item of private property into a public one, for sound reasons of public benefit." But the "taking" is without compensation under the Fifth Amendment's requirements for "due process" and "just compensation."[40] Moreover, Veeck does not openly "take" the property. Instead, it determines that "if the government has a need for the use of . . . private property, then the property must no longer be 'property' at all." Hardy argues that if a building code is original and expressive enough to gain copyright in the first place, the legislative act of making it a law does not change those facts to turn it into non-property.[41]

McJohn

Stephen McJohn argues that the Veeck court's use of the merger doctrine to resolve the case "is a blunt instrument because it entails holding that the model code loses all copyright protection once adopted." That would permit not only nonprofit uses but also copying and use "for strictly commercial purposes." In contrast, application of the doctrine of "fair use would permit a more nuanced approach." Moreover, the fair use doctrine "can be used to authorize free expression without the doctrinal problems of the merger doctrine."[42]

References

The citations in this article are written in Bluebook style. Please see the talk page for more information.

  1. ^ Veeck v. Southern Building Code Congress Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc), cert. denied, 539 U.S. 969 (2003).
  2. ^ 293 F.3d at 793-94, 809-10.
  3. ^ Veeck v. Southern Bldg. Code Congress Int'l, Inc., 49 F. Supp. 2d 885 (E.D. Tex., 1999).
  4. ^ 128 U.S. 244 (1888).
  5. ^ 49 F. Supp. 2d at 888.
  6. ^ 49 F. Supp. 2d at 889.
  7. ^ 293 F.3d at 794.
  8. ^ 241 F.3d 398, 402-04, 407 (5th Cir. 2001), rev'd, 293 F.3d 791 (5th Cir. 2002).
  9. ^ 293 F.3d at 793.
  10. ^ 293 F.3d at 807 (Higginbotham, J., dissenting).
  11. ^ Id. at 808.
  12. ^ Id. at 809 (Weiner, J., dissenting).
  13. ^ Id. at 811.
  14. ^ Id. at 817.
  15. ^ Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). Accord, Banks v. Manchester, 128 U.S. 244 (1888); Building Officials & Code Admin. Int'l, Inc. v. Code Tech., Inc., 628 F.2d 730, 733-34 (1st Cir.1980) (reviewing case law).
  16. ^ 2006 U.S. Dist. LEXIS 13783 (N.D. Ill. Mar. 27, 2006).
  17. ^ ICC is the result of a 1994 merger among Building Officials and Code Administrators International, Inc. (BOCA), International Conference of Building Officials (ICBO), and Southern Building Code Congress International, Inc. (SBCCI).
  18. ^ Id. at *93-94.
  19. ^ 2003 U.S. Dist. LEXIS 4964 (N.D. Ill. Mar. 28, 2003).
  20. ^ Id. at *23.
  21. ^ 121 F.3d 516, 518-20 (9th Cir. 1997).
  22. ^ Id. at 520.
  23. ^ Id. at 520.
  24. ^ 44 F.3d 61, 73-74 (2d Cir. 1994).
  25. ^ 322 F.3d 26, 30 (1st Cir. 2003).
  26. ^ Id, at 39-40.
  27. ^ Building Officials & Code Adm'rs v. Code Tech., Inc., 628 F.2d 730, 734-35 (1st Cir. 1980).
  28. ^ Private Standards In Public Law: Copyright, Lawmaking and the Case of Accounting, 104 Mich. L. Rev. 291 2005).
  29. ^ See id at 305.
  30. ^ Id. at 307.
  31. ^ Id.
  32. ^ Shubha Ghosh, Copyright as Privatization: The Case of Model Codes, 78 Tulane L. Rev. 653 (2004).]
  33. ^ Id. at 686.
  34. ^ Id. at 686.
  35. ^ See Veeck, 293 F.2d at 806.
  36. ^ Ghosh at 688.
  37. ^ Id. at 689 (quoting amicus curiae brief of Solicitor General regarding the certiorari petition. Brief of Amicus Curiae United States, at 18-19, Veeck case, 537 U.S. 1043 (2002) (No. 02-355).
  38. ^ See 241 F.3d 398 (5th Cir. 2001), rev'd, 293 F.3d 791 (5th Cir. 2002) (en banc).
  39. ^ Dennis S. Karjala, Distinguishing Patent and Copyright Subject Matter, 35 Conn. L. Rev. 439, 503 (2003).
  40. ^ See CCC Ifo. Servs., Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61,74 (2d Cir. 1994) ("would raise very substantial problems under the Takings Clause of the Constitution").
  41. ^ Trotter Hardy, The Copyrightability of New Works of Authorship, 38 Hous. L. Rev. 855, 877-78 (2001).
  42. ^ Stephen M. McJohn, Eldred's Aftermath: Tradition, The Copyright Clause, and the Constitutionalization of Fair Use, 10 Mich. Telecomm. & Tech. L. Rev. 95, 132 (2003).
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