Veeck v. Southern Building Code Congress Int'l

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.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). 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 was unsuccessful.The brief of the United States, filed after the Supreme Court called for the views of the Solicitor General on the petition for a writ of certiorari, stated: "The standard codes are generally available to the public at local government offices and libraries, although neither Savoy nor Anna has a public library and there is reason to believe that finding copies of the codes may be difficult." Brief for the United States as Amicus Curiae, Southern Bldg. Code Cong. Int'l, Inc. v. Veeck (2003) (No. 02-355), at 3. Veek was also unsuccessful in obtaining the codes of another 20 Texas towns. Id. He then bought electronic copies of the 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.293 F.3d at 793-94, 809-10.

District court ruling

The facts were not disputed and each party moved for summary judgment on the copyright infringement issue. The district court granted summary judgment in SBCCI's favor.Veeck v. Southern Bldg. Code Congress Int'l, Inc., 49 F. Supp. 2d 885 (E.D. Tex., 1999).

The district court began by considering the Supreme Court's 1888 decision in Banks v. Manchester,128 U.S. 244 (1888). 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: the public owns the opinions because it pays the judge's salaries, and 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."49 F. Supp. 2d at 888.

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."49 F. Supp. 2d at 889.

The district court entered a permanent injunction and ordered an award of monetary damages.293 F.3d at 794. 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."241 F.3d 398, 402-04, 407 (5th Cir. 2001), rev'd, 293 F.3d 791 (5th Cir. 2002).

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.293 F.3d at 793.

The law is excluded from copyright

The court traced the early case law. In 1834, the Supreme Court interpreted the first federal copyright laws and unanimously held that "no reporter has or can have any copyright in the written opinions delivered by this Court ..."Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668 (1834). The case involved a copyright infringement suit between early reporters of U.S. Supreme Court opinions, both of whom were selling editions of their reports. Peters, who had replaced Wheaton, the reporter from 1816 to 1827, decided to market a less expensive product in which he omitted Wheaton's annotations and summaries but copied the texts of the Supreme Court's opinions, both those preceding his term as reporter and those he reported himself. Wheaton found his market dried up and sued Peters for infringement. Wheaton lost in the trial court and appealed to the Supreme Court, which affirmed the judgment. The Court's opinion concluded: "It may be proper to remark that the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right."Wheaton, 33 U.S. at 668. Thus, any copyright protection for publications of judicial opinions could cover only the added materials such as summaries of the opinions and commentaries on them, but not the judicially authored texts of the opinions themselves. Counsel for both parties in the case agreed that statutes could not be copyrighted.Veeck, 293 F.3d at 795.

In 1888, the Supreme Court extended the rule of Wheaton v. Peters to state court opinions, saying that the law " is free for publication to all."Banks v. Manchester, 128 U.S. 244 (1888). State courts made similar rulings for their courts and laws.Veeck, 293 F.3d at 796.

SBCCI argues that the Banks case explains the rule on two grounds, both of which (SBCCI argues) are inapplicable here. First, Banks is said to deny copyright to judicial opinions because judges, whose salaries are paid by the government, cannot claim to own the opinions. Also, they do not need copyright incentives to write opinions. In contrast, SBCCI is unlike government employees, it says, and as the private "author" of model codes it allegedly depends on copyright incentives in order to perform their public service. Second, SBCCI argues that Banks in effect says that due process requires adequate public access to the law, but that argument does not apply because there is adequate public access to its building codes.293 F.3d at 796–97.

The court disagreed that this is a proper reading of Banks. Rather, "Banks declares at the outset of its discussion that copyright law in the United States is purely a matter of statutory construction."See Banks, 128 U.S. at 251. Then the Supreme Court denies that judges are the authors or proprietors of their opinions. What their work is " constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all."See Banks, 128 U.S. at 253–54. In effect, judicial writings are works for hire that belong to the public that pays judges' salaries.293 F.3d at 797. The Fifth Circuit insisted that "Banks refers to the source of the judges' salary in order to explain that it is the public at large, not the judges, who have the pecuniary interest or proprietorship in the fruits of their judicial labors." Id.

Banks, read together with Wheaton, on which it relies, stands for the rule that the law "is not subject to copyright."293 F.3d at 798. The law is not simply what a law-proposing body such as SBCCI offers to the legislature:

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.293 F.3d at 799.

SBCCI is wrong about access, too, the court maintained. That law is in the public domain means that it is there "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." The public's rights cannot be reconciled with "the statutory right of a copyright holder to exclude his work from any publication or dissemination." SBCCI responds that "the fair use doctrine as well as its honorable intentions will prevent abuse. Free availability of the law, by this logic, has degenerated into availability as long as SBCCI chooses not to file suit." The court said it rejected that: "Instead, we read Banks, Wheaton, and related cases consistently to enunciate the principle that the law," whether it has its source in judicial opinions or statutes, ordinances or regulations, is not subject to federal copyright law."293 F.3d at 799–800

In deciding that the municipal building codes in this case could be freely copied, the court relied on the First Circuit's decision in Building Officials & Code Administrators v. Code Technology, Inc.,628 F.2d 730 (1st Cir. 1980), (BOCA)—the only other appellate case addressing a similar enactment of a model building code. The court distinguished cases from the Ninth and Second Circuits holding that government reference to (not copying or enactment of) a preexisting private system for identifying medical conditions and a listing of valuations for used cars did not eliminate the copyright owners' rights to prevent others from making copies of the material.See Practice Mgmt. Info. Corp. v. American Med. Ass'n, 121 F.3d 516 (1997), opinion amended by 133 F.3d 1140 (9th Cir. 1998); CCC Info. Servs., Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994).

Effect of copyright statute