In the Supreme Court of the United States Southern Building Code Congress International, Inc, Petitioner
Peter Veeck, D/B/A Regional Web
Updated September, 2003
On June 27 the Supreme Supreme Court decided not to hear an appeal of the Fifth Circuit court June 7, 2002 decision in Veeck vs. SBCCI No. 99-40632 that when a copyrighted standard or code is referenced into law (particularly if it thereby becomes "the law"), the developer cannot enforce its copyright against a free distribution of the standard
June 27, 2003 02-355 SOUTHERN BUILDING CODE V. VEECK, PETER
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.
This case is a matter of considerable concern to the Southern Building Code Congress International (SBBI) and to many other standards developers who depend upon the sales of their published and copyrighted standards to support their continued operation. On June 6 the Southern Building Code Congress International, Inc. (SBCCI) had filed a Supplemental Brief with the United States Supreme Court in response to a brief filed with the Supreme Court on May 30 by the Office of the Solicitor General.
The Solicitor General distills the essence of the dispute below:
This case concerns model codes written and copyrighted by a private organization. The codes apply to the construction, alteration, use, occupancy, and maintenance of buildings and the electrical, plumbing, mechanical and gas systems in them and provided criminal misdemeanor penalties for failure to comply. The private organization offers the codes to government entities for enactment into law. Two municipalities enacted ordinances that adopted the model codes by reference. The question presented is: Whether copyright law gives the private organization the right to restrict individuals from making copies of the material incorporated by reference in the municipal codes of the two municipalities.
Peter Veeck provides free access to information about the rural areas of Texas north of Dallas, including the codes and ordinances of the cities of the area, Veeck filed suit in federal district court in Sherman, Texas, against the Southern Building Code Congress International (SBCCI) for a declaration that the SBCCI standard codes which are adopted by reference by the cities in the Texoma area are in the public domain and not subject to the copyright claimed by SBCCI. He filed suit in Texas after being threatened with suit by SBCCI which is located in Alabama. Amicus Curae by SDOs
On May 30, 2003 the Solicitor General of the United States Department of Justice essentially concluded that copyright law does not give a private organization the right to restrict individuals from making copies of the material incorporated by reference in the municipal codes of the two municipalities. The Solicitor General stated, "This case involves a comprehensive code specifically created for enactment into law and designed broadly to regulate the primary conduce of private parties, The court of appeals' holding that such a code may be copied by interested members of the public is correct, it is consistent with the views of the only other court of appeals to address the same issue and it does not conflict with any decision of any other court of appeals. There is a broad range of differing governmental uses of a wide variety of different types of privately copyrighted materials, In a few cases, the courts of appeals have addressed the issues arising from such uses; they have divide between those involving the incorporation of copyrighted codes into laws that directly regulate primary conduct and those involving laws that reference copyrighted materials. In future cases, the courts of appeals can be expected to develop the relevant differences between those two categories and thereby clarify the law in this area. To the extent a true conflict develops in the circuits, the court could then review the issue with the benefit of further refinement of the relevant questions by the courts of appeals. Accordingly, further review is unwarranted."
In forming the opinion, The solicitor General consulted with numerous government agencies who employ standards in regulatory or procurement matters. GTW Associates requested details of the information request from the Solicitor General to the US Department of Commerce and the US Department of Commerce reply under the Freedom of Information Act. GTW Associates believed the exchange could provide insight in to the significant policy issues at stake in the legal proceeding. The GTW FOI request was denied on the basis that the responsive documents that were located are being withheld pursuant to 5 USC 552 which protects inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. The privileges which apply are the deliberative process privilege, the attorney client privilege and the attorney work product privilege.
The solicitor general advised that the Supreme Court need not reconsider a June 10, 2002 decision of United States Court of Appeals for the Fifth Circuit (293 F.3d 791 (5th Cir. 2002)). The Fifth Circuit had concluded that SBCCI retains the copyright in its standard, but that "[w]hen those codes are enacted into law ... they become to that extent 'the law' of the governmental entities and may be reproduced or distributed as 'the law' of those jurisdictions." The Fifth Circuit further observed that laws are not subject to federal copyright law, and "public ownership of the law means that 'the law' is in the 'public domain' for whatever use the citizens choose to make of it."
On the other hand the Fifth Circuit Court's
decision was far from unanimous, The Dissenting
opinion by WIENER, Circuit Judge, joined by KING, Chief Judge, and
HIGGINBOTHAM, DAVIS, STEWART, and DENNIS, Circuit Judges, dissenting:
Technical codes and standards have become necessary, pervasive, and
indispensable ingredients of Twenty-First Century life in this country;
regrettably, today's majority opinion has a real potential of
drastically changing the societal landscape through that opinion's
predictably deleterious effects on these codes and standards, their
authors, and the public and private entities that daily use and depend
on them. Despite efforts to clothe its ruling in classic copyright lingo
---- "public domain," "fact/expression,"
"merger" ---- in holding for Veeck under the discrete facts of
this case, the majority had to (and did) adopt a per se
rule that a single municipality's enactment of a copyrighted model code
into law by reference strips the work of all copyright protection, ipso
facto. Firmly believing that for this court to be the first
federal appellate court to go that far is imprudent, I respectfully
dissent In the absence of an expressed pronouncement from either
the Supreme Court or Congress, our creation of an automatic rule
rendering the copyright of a model code nugatory per se when and if it
is enacted into law is unwise, imprudent, and far in excess of our
authority. Before such > a work is enacted into law, the
Copyright Act unquestionably affords copyright protection to its author;
and Congress has given no indication that, on enactment, this protected status
evanesces ipso facto as to the whole universe of potential copiers.
The May 30, 2003 Solicitor General amicus acknowledges the significant federal use of private sector standards but gives short shrift to the economic repercussions of the decision on the US standards infrastructure. "Petitioner argues that the decision in this case will substantially undermine the financial capacity of standards setting organizations to provide their services because those organizations will no longer be able to rely on sales of copyrighted works. The continued ability of private standards organizations to develop and update their materials at a high level of quality and integrity is of substantial importance to the federal government; by our own count the Code of Federal Regulations contains more than 7000 references to privately developed codes and standards, upon which federal agencies rely in a very wide variety of settings, Nonetheless, predictions do not provide an in independent basis to grant certiorari in this case. If, as petitioner argues, the Fifth Circuit decision were understood as broadly applicable to all government adoption of and reference to privately developed standards and codes, the effect of this decision would still be highly speculative. The extent to which standards setting organizations depend on the sale of copyrighted works no doubt varies widely, and such organizations have survived and prospered despite the threat to their copyright income that has existed at least since the First Circuit's decision in BOCA in 1980. Moreover professional in the fields affected by particular standards and cods may have ample incentive to continue to buy the "official" sets of standards notwithstanding the potential availability of other unofficial editions, Even if profits from sales of copyrighted materials were reduced, professionals in the field and others may have many reasons to ensure that broadly applicable standards and codes of high quality and integrity remain available.
SBCCI emphasized in its June 6, 2003 position that the SG's arguments contradict those expressed by the SG's office in connection with the Practice Management Info. Corp. v. American Medical Ass'n ("PMI") case and "rests on muddled distinctions." SBCCI then proceeded to take to task each of the current SG's three primary assertions: (a) that the decision below was correct, (b) that there is no circuit split and (c) that the Supreme Court should await further litigation.