In an en banc opinion, with several judges dissenting,
the U.S. Court of Appeals for the Fifth Circuit has overruled a panel decision,
finding that a nonprofit organization that developed a model building code may
not prevent a website operator from posting the text of the model code as it
was enacted into law. Veeck v. Southern Building Code Congress Int’l, Inc.,
2002 U.S. App. LEXIS 10963 (5th Cir. June 7, 2002).
Peter Veeck operates a non-commercial website that provides
information regarding north Texas. In 1997, Veeck posted on his website local
building codes for two small Texas towns that had adopted a building code
written by Southern Building Code Congress International, Inc. (SBCCI), a
nonprofit organization dedicated to developing, promoting and promulgating
model business codes. Before posting the model codes on his website, Veeck
attempted to obtain copies of the codes from the towns but was unable to do so.
Veeck then purchased a copy of the model codes from SBCCI.
After SBCCI insisted that Veeck cease and desist from
infringing its copyrights in the model codes, Veeck filed a declaratory
judgment action seeking a ruling that his posting was not an infringement of
SBCCI’s copyright. The district court granted summary judgement in favor of
SBCCI. On appeal, a divided panel of the Fifth Circuit upheld SBCCI’s copyrights
in the municipal building codes as posted by Veeck. The Fifth Circuit then
decided to rehear the case en banc "because of the novelty and
importance of the issues it presents."
On rehearing, the en banc Fifth Circuit concluded that
while as model codes, the organization’s works retain their protected status,
Veeck’s posting of the codes as enacted by the towns did not infringe SBCCI’s
copyrights because as law, the model codes enter the public domain, i.e.,
are not subject to the copyright holder’s exclusive prerogatives. The Fifth
Circuit reasoned that this result is compelled because the Supreme Court has
held that "the law" is in the public domain and, therefore, is not
copyrightable and because the Copyright Act excludes "ideas" and
"facts" from its protection.
In one disserting opinion, the dissenting judges argued that
the district court’s judgment should be affirmed because SBCCI held valid
copyrights in the model codes, and copyright invalidity is not the inevitable
consequence of code adoption. Those judges concluded that Veeck should be
liable for copyright infringement because he violated the explicit terms of the
agreement under which he obtained his copy of the model code from SBCCI. In a
second dissenting opinion, the dissenting judges argued that "it is
improvident for th[e] court to legislate judicially an absolute, per se
rule that referential enactment of a copyrighted work like a technical code
into law mystically metamorphoses it into an ‘idea,’ puts it into the public
domain, waives its copyright protection universally, and otherwise strips it of
copyright protection vel non." Those judges concluded that given
the trend toward adoption of privately promulgated codes, the balancing of the
countervailing policy concerns dictates that, on these facts, the copyright
protection of SBCCI’s privately authored model codes "did not simply
evanesce ipso facto, when the codes were adopted by local governments;
rather, they remain enforceable, even as to non-commercial copying, as long as
the citizenry has reasonable access to such publications... ."
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
