Lead Opinion
Plaintiff-Appellant Peter Veeck (“Veeck”) appeals from a summary judg
I.
FACTS AND PROCEEDINGS
SBCCI is a nonprofit organization that develops, promotes, and promulgates model building codes, such as the Standard Plumbing Code, the Standard Gas Code, the Standard Fire Prevention Code, and the Standard Mechanical Code. SBCCI encourages local governments to enact its codes into law by reference, without cost to the governmental entity. In each of its codes, SBCCI asserts a copyright under which it claims the exclusive right to publish these codes or license their reproduction and publication. Once a governmental unit enacts such a code into law, copies are to be made available for inspection by the public in the enacting government’s offices. Members of the public may make or obtain copies of portions of the SBCCI codes from city offices or local libraries or may purchase copies of the codes directly from SBCCI and from some bookstores as well. Although SBCCI is a nonprofit organization, it uses revenue from sales of its model codes to fund its continuing activities. Non-members are charged more for copies of SBCCI’s model codes than are members of the organization. For example, members are charged $48 for a copy of SBCCI’s 1994 standard building code, for which nonmembers are charged $72.
Veeck operates a nonprofit web site, known as RegionalWeb, which provides information about North Texas, including texts of local building codes. Several towns in North Texas have adopted SBCCI’s codes, including the towns of Anna and Savoy. Veeck attempted to obtain a copy of the building codes of his hometown of Denison, Texas, after learning that Denison had adopted SBCCI’s model code as its own. Failing to locate Denison’s building code at local bookstores or libraries, Veeck ordered from SBCCI copies of its codes in electronic format.
The package containing the computer disks that SBCCI sent to Veeck included a software license agreement and copyright notice. In disregard of these data, Veeck installed the codes on his personal computer and, by “cutting and pasting,” was able to put the entire codes on his web site. Veeck’s web site did not specify that the codes were written by SBCCI, instead simply identifying them as the building codes of Anna and Savoy, Texas.
When it learned that Veeck had posted copies of its codes on his web site, SBCCI sent him a cease and desist order, accusing him of infringing its copyrights. Veeck responded by filing this declaratory judgment action in an effort to have the district court rule that he did not violate the Copy
In the absence of genuinely disputed material facts, the district court granted summary judgment in favor of SBCCI, holding that it held valid, enforceable copyrights and rejecting Veeck’s defenses of fair use, copyright misuse, waiver, merger, and due process. The district court found five separate instances of copyright infringement — one for each separate model code that Veeck published on his web site — and granted a permanent injunction and monetary damages to SBCCI. Veeck appealed.
II.
ANALYSIS
A. Standard of Review
This case is on appeal from a grant of summary judgment, dismissing Veeck’s declaratory judgment action and granting SBCCI’s requested copyright infringement relief. We therefore review the record de novo, applying the same standard as the district court.
The standard for summary judgment mirrors that for judgment as a matter of law.
B. Copyright Infringement
The core purpose of copyright law is “to secure a fair return for an author’s creative labor” and thereby'“to stimulate artistic creativity for the general public good.”
Veeck contends that once SBCCI’s model codes are enacted into public law they lose their copyright protection under principles of due process, freedom of speech, and the affirmative defenses of merger, misuse, waiver, and fair use that are peculiar to copyright law. The instant case is one of first impression in this circuit, but three other circuit courts have examined the issue of enforcement of copyrights in the context of privately developed codes or compilations that had been enacted, in some form, into public law.
C. Defenses
1. Dm Process/Public Domain
According to Veeck, the public’s due process interest in free access to the building codes extinguishes SB CCI’s copyright because the codes enter the public domain when they are enacted into law. At the outset, we note that although Veeck struggles mightily to raise a fact issue as to whether he was denied access to the codes, we agree with the district court that there is no probative evidence that the codes are not publicly available in North Texas towns. Leaving aside the issues of the codes’ availability in bookstores, public libraries, and directly from SBCCI, we shall assume that due process requires at a minimum that the codes should be available for inspection and copying at the city offices in towns where they have been adopted by reference. Veeck has fallen short in his efforts to raise a genuine fact issue regarding such availability of the codes in Anna and Savoy.
The First Circuit aptly described the quandary that we face today when it explained that even though the law is well established that “judicial opinions and statutes are in the public domain and are not subject to copyright,” the question remains “whether this principle likewise covers state-promulgated administrative regulations which are modelled on a privately developed code that was copyrighted by the service-oriented organization responsible for its creation and updating.”
The rule denying copyright to judicial opinions and legislative enactments was completely settled by the end of the nineteenth century. With the emergence of the regulatory state in the twentieth century, and the proliferation of administrative regulations, two new questions arose for copyright policy: Should copyright attach to texts that, though prepared privately, have received the imprimatur of official action? Should copyright attach to regulatory codes that, although drafted by private industry groups, have subsequently been enacted into law?22
The second question is the one we must answer today.
More than 100 years ago, in Banks v. Manchester;
The Court’s first ground is not applicable here: Unlike Banks, in this case SBCCI is asserting a viable proprietary interest because it created the model codes using its own, private resources. Nonetheless, the public policy concern announced in Banks remains vexatious. There, the Court declined to enforce the state reporter’s copyright in judicial opinions because “[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.... ”
The Second Circuit addressed this public policy argument in CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc.
The Second Circuit reversed and granted summary judgment for Maclean. The appellate court found it necessary to “balance the conflicts and contradictions that pervade the law of copyright, and the need, where elements of the copyright law conflict, to determine, as a policy judgment, which of its commands prevails over the other.”
We do not dismiss lightly the policy considerations supporting Veeck’s position; yet, limited to the narrow set of facts before us, we perceive the scale of countervailing policy considerations to be tipped in favor of enforcing SBCCI’s copyright.
The Second Circuit analogized the claims it rejected in CCC to a hypothetical holding that schoolbooks lose their copyright once assigned in compliance with a school curriculum mandated by law.
Each of the three states comprising this circuit has statutes that refer to standards promulgated by SBCCI.
invalidating [the AMA’s] copyright on the ground that the CPT entered the public domain when [the Health Care Financing Administration] required its use would expose copyrights on a wide range of privately authored model codes,*407 standards, and reference works to invalidation. Nonprofit organizations that develop these model codes and standards warn they will be unable to continue to do so if the codes and standards enter the public domain when adopted by a public agency.41
In State of Texas v. West Pub. Co.,
2. Merger
In his merger argument, Veeck contends that SBCCI’s building codes, once enacted by reference into law, became a fact which can be expressed in only one way.
In this circuit, the merger doctrine has been applied to the question whether a work was copyrightable at the time of its creation, preventing a copyright from attaching in the first place, rather than as an infringement defense focusing on merger at the time of copying.
Public policy also convinces us that application of the merger doctrine should be withheld here. The purpose behind the concept of the merger of expression with idea is to ensure that copyright protection not extend to ideas. The doctrine applies only when there are few or no other ways of expressing a particular idea.
3. Additional Defenses
a. Free Speech
Veeck raises four additional defenses on appeal.
Veeck’s Free Speech defense is further weakened by the fact that he did not first obtain copies of the codes of these two .cities and then publish them on the Internet. Instead, Veeck purchased directly from SBCCI a copy of its 1994 Standard Codes, which arrived bearing a copyright notice and a license agreement. He nevertheless copied that set onto his computer and he posted it on the web, identifying it as containing the municipal codes of the two towns. These two possible courses of action are inherently different: The former is more akin to a citizen’s fair use of
In enforcing its copyright in its model codes, SBCCI is not stifling access to or speech about the law. The First Amendment is not violated here.
b. Misuse
The equity-based defense of copyright misuse, which prevents a culpable plaintiff from prevailing in an action for the infringement of a misused copyright, “ ‘forbids the use of the copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office and which is contrary to public policy to grant.’ ”
c. Waiver
Neither can Veeck prevail on his assertion that SBCCI expressly or impliedly waived its right to copyright protection by encouraging municipalities to adopt its codes by reference. A right such as copyright may be waived by inaction.
•SBCCI expressly reserved its copyright in the codes. The district court found-undisputed the fact that the materials Veeck received from SBCCI “contained the copyright expressions of the Defendant.” The district court also concluded that the fact that SBCCI had given North Carolina Building Inspectors Association permission to publish on the Internet'that state’s building codes, which are modeled on the SBCCI codes, does not amount to waiver. As the district court noted, “[c]ountless entities provide free access to materials on the Internet and still retain enforcement of their copyrights.” SBCCI has not waived its copyright in its model codes.
cL Fair Use
Finally, Veeck argues that his posting of SB CCI’s copyrighted material on the Internet constituted a “fair use.” Congress has excepted from infringement of copyrighted materials such specified uses as news reporting, teaching, and research.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.58
When, as with Veeck’s activity here, the use of a copyrighted work is noncommercial, defeating a fair use defense requires “proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.”
Even though the use to which Veeck put SBCCI’s works is not harmful per se, it could severely undermine the market for those works if such use were to become widespread. Here, there is no genuine dispute, based on the summary judgment record, “that some meaningful likelihood of future harm exists.”
D. SBCCI’s Infringement Counterclaim
SBCCI holds valid copyrights in its codes, and Veeck has expressly admitted copying them. In the absence of a viable defense, the district court was correct in holding that SBCCI established copyright infringement. Under these circumstances, we are convinced that the district court’s conclusions and its award of the minimum statutory damages on each of the five counts of copyright infringement are free of error.
III.
CONCLUSION
Two decades ago, in BOCA
In joining three of our sister circuits today, we emphasize that our holding is restricted to the narrow set of facts and circumstances before us. Under these, no one is being denied reasonable access to the SBCCI codes that have been adopted in globo by local governments; neither did Veeck’s specific actions make a sufficiently strong case for fan- use. Even slightly different facts under different circumstances might produce a different result.
Today, the trend toward adoption of privately promulgated codes is widespread, and the social benefit from it is great. Our balancing of the countervailing policy concerns presented in this case ultimately leads us to conclude on these facts that copyright protection of privately authored model codes does not simply evanesce ipso facto when the codes are 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 cum law. For these reasons, the judgment of the district court is, in all respects,
AFFIRMED.
Notes
. The record is not completely clear, but it appears that Veeck did not attempt to view or copy the codes in the Denison city clerk's office. When Veeck received the 1994 codes from SBCCI, he realized that Denison had adopted the 1988 version of the building codes. He posted the 1994 codes on his Internet site despite the fact that they were not the exact version adopted by Denison.
. Some of the cities apparently did not have the correct version of their building code available at alternative locations. For instance, Sherman, Texas, had adopted the 1997 version of the building code, but the local library had only the 1994 version on hand.
. Appellate amicus briefs were filed in support of SBCCI by the American Medical Association, American National Standards Institute, American Society of Association Executives, American Society of Heating, Refrigerating and Air Conditioning Engineers, National Fire Protection Association, Texas Municipal League, and Underwriters Laboratories, Inc. Briefs in support of Veeck were filed by Professor Malla Pollack and the Association of American Physicians & Surgeons.
. Morris v. Covan World Wide Moving, Inc.,
. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
. Id.
. Olabisiomotosho v. City of Houston,
. Celotex, 477 U.S. at 323,
. Reeves v. Sanderson Plumbing Products, Inc.,
. Id. at 2110.
. Twentieth Century Music Corp. v. Aiken,
. Feist Publications, Inc. v. Rural Tel. Serv. Co.,
. See Practice Mgt. Info. Corp. v. American Med. Ass’n ("Practice Management"),
. See BOCA,
. See supra note 13; see also David S. Levitt, Copyright Protection for United States Government Computer Programs, 40 IDEA 225, 238 (2000) (citing cases "supporting] the proposition that privately developed and properly copyrighted material should remain copyrighted material unless the material falls into the strict definition of statute or judicial opinion").
. Had Veeck shown denial of access, we almost certainly would find that a material fact issue precluded summary judgment. The
Furthermore, had Veeck in fact been unable to obtain a copy of the enacted building codes because of SBCCI’s copyright, we would likely conclude that due process provides grounds to invalidate such copyright. See Practice Management,
. Sony Corp. v. Universal City Studios, Inc.,
. See BOCA,
. The parties do not question the notion that the codes would not be copyrightable if they had been developed by public officials. See, e.g., Banks v. Manchester,
. BOCA,
. 1 Paul Goldstein, Copynght § 2.5.2 (2d ed. 1996 & Supp.1999), at 2:47.
.
. See id. at 253,
. See id.; see also Practice Management,
. Banks,
.
. Id. at 64.
. Id.
. Id. at 68 (emphasis added).
. See id. at 74 ("We are not prepared to hold that a state’s reference to a copyrighted work as a legal standard for valuation results in loss of the copyright.”).
. The First Circuit noted in BOCA that it was "far from persuaded that [plaintiff's] virtual authorship of the Massachusetts building code entitles it to enforce a copyright monopoly over when, where, and how the Massachu
. 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 5.06[C], at 5-92 (2000).
. CCC,
. See 63 Fed.Reg. 8545, 8554-55 (Feb. 19, 1998) (Office of Management and Budget Notice of Final Revision of Circular A-119) (directing federal agencies to adopt privately developed standards "whenever practicable and appropriate” to "eliminate!] the cost to the Government of developing its own standards”); National Technology Transfer and Advancement Act of 1995, Pub.L. No. 104-113, § 12(d), 110 Stat. 775, 783 (1996).
. American Medical Association; American National Standards Institute; American Society of Association Executives; American Society of Heating, Refrigerating and Air-Conditioning Engineers; American Society of Mechanical Engineers; National Fire Protection Association, Inc.; Texas Municipal League; and Underwriters Laboratories Inc.
. See, e.g., Tex. Loc. Gov't § 235.002(c)(1) (Vernon 1999) (fire code); La.Rev.Stat. Ann. § 40:1722(B)(3) (West 2000) (building code); Miss.Code. Ann. § 45-11-73 (2000) (building code).
. La.Rev.Stat. Ann. § 51:911.23 (West 2000).
. Tex.Rev.Civ. Stat. Ann. art. 6243-101, § 3 (Vernon 2000).
. Tex. Nat. Res.Code Ann. § 113.052 (Vernon 2000).
. Practice Management,
.
. The merger doctrine is based on 17 U.S.C.A. § 102(b), which states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
. Mason v. Montgomery Data, Inc.,
. See, e.g., American Dental Ass’n v. Delta Dental Plans Ass’n,
. Practice Management,
. See American Dental Association,
. Kepner-Tregoe, Inc. v. Leadership Software, Inc.,
. The global enactment of a code does make that code the law of the enacting municipality and hence, in one sense, a "fact.” In the real world, however, as in this case, acknowledging this does not change our analytical approach. Individuals such as contractors who need to use building codes can — and do — quote applicable provisions or incorporate them by reference as needed, for instance, in preparing bids or setting project specifications. That type of use is not before us and cannot be equated to the facts here, involving the gratuitous publication of an entire code. The doctrine of the merger of expression and fact should not be applied to defeat SBCCI’s copyright in this case.
. Another defense, implied license, was raised by amicus curiae Association of American Physicians & Surgeons, Inc., but was not addressed by either party in the district court or on appeal. Hence, we do not address it. See Christopher M. v. Corpus Christi Indep. Sch. Dist.,
.
. Veeck’s fair use defense is discussed further infra.
. DSC Communications Corp. v. DGI Techs., Inc.,
. Practice Management,
. See, e.g., Sherrod v. American Airlines,
. See, e.g., Norma Ribbon & Trimming, Inc. v. Little,
. See 17 U.S.C. § 107 (2000).
. Id.; see also Campbell v. Acuff-Rose Music, Inc.,
. Sony Corp. v. Universal City Studios,
. Id.
. In Campbell v. Acuff-Rose Music, while evaluating a fair use defense, the Supreme Court discussed the degree to which a parodist’s work transforms a copyrighted original. See
. At the pertinent time, 17 U.S.C.A. § 504(c)(1) set the range of statutory damages for each act of copyright infringement at no less than $500 or more than $20,000. A 1999 amendment has raised those amounts to $750 and $30,000, respectively. Id.; Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Pub.L. No. 106-160, § 2(1), 113 Stat. 1774 (1999).
. Hogan Systems, Inc. v. Cybresource Int'l, Inc.,
.
. Id. al 736.
. Id.
.See Practice Management,
Dissenting Opinion
dissenting:
Today the majority concludes that the presumed benefits generated through the creation of “model codes” require that it strike the balance in favor of permitting the model code creator to continue to enforce its copyright, even after such a code has been adopted into law. In my view, once a “model code” is adopted into law by the government, a private entity, such as SBCCI, may no longer obstruct publication and transmission of the law by an uncompensated transferor. Adoption of the model code as law serves to place the law in the public domain and it should, therefore, be readily available for access by all citizens. The access should not be limited to a non-public commercial establishment. Similarly, upon enactment, the law transforms into an “idea” that is no longer distinguishable from its expression, causing SBCCI’s codes to lose their copyright protection. It is my belief that reversal of the district court judgment is appropriate. I respectfully dissent from the decision of the majority.
A. Due Process/Public Domain Basis
The majority places great emphasis on the district court’s conclusion that no probative evidence exists demonstrating that the codes are not publicly available in Noi’th Texas towns. This conclusion, even if factually accurate, is not determinative. The question, in my estimation, is not whether Veeck, or any other citizen, actually was prevented from viewing the public law, but whether a private entity that develops a code may maintain private control of that law through a copyright.
As the majority correctly observes, not all reproductions of copyrighted work are “within the exclusive domain of the copyright owner; some are in the public domain.” Sony Corp. v. Universal City Studios, Inc.,
In Banks, the Supreme Court declined to enforce the state reporter’s copyright of judicial opinions because “[t]he whole work done by judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.” Banks,
The First Circuit has indicated its approval of this reasoning in a case presenting facts similar to those we measure today. In BOCA, the plaintiff, Building Officials and Code Administration (“BOCA”), another code-writing organization, claimed copyright protection for its model building code, which it encouraged public • authorities to adopt through a licensing program. See BOCA,
Although the First Circuit declined to rule on the ultimate merit of the plaintiffs case, in vacating the district court’s grant of a preliminary injunction to the copyright holder, it noted that it was “far from persuaded that [the plaintiffs] virtual authorship of the Massachusetts building code entitles it to enforce a copyright monopoly over when, where, and how the Massachusetts building code is to be reproduced and made publicly available.” Id. at 735. The court reasoned that the public “owns the law” not just because it pays the salaries of those who write the statutes and judicial opinions, but because “[t]he citizens are the authors of the law.” Id. at 734. The court also determined that due process guarantees access to the law because it requires notice of legal obligations. See id. It then expressed doubt that due process would allow a private entity to limit access under the copyright law, and to decide for itself when, where, and how the code was to be reproduced and made publicly available. See id. at 735. The court ultimately declined to decide the issue, however, remanding to the district court for further proceedings. See id. at 736.
The majority contends that refusal to enforce SBCCI’s copyright would result in a departure from the prior decisions of our sister circuits. On close inspection of those cases, it appears to me that no other circuit has addressed a substantively similar situation to the one before us today. The result I favor would not, therefore, be in discord with the decisions of our sister circuits. Practice Management did not reject, outright, the viability of a public domain defense to copyright infringement. In that case, the Ninth Circuit declined to find that the “public domáin” argument supported a publisher’s attempt to produce its own copy of. a medical coding system developed and copyrighted by the American Medical Association, that had been adopted by the federal Health Care Financing Administration for use in Medicare and Medicaid claim forms. See Practice Management,
It is also apparent that the Practice Management court was chary to apply the public domain rationale to defeat a copyright based on the concern that invalidating the AMA’s copyright “would expose copyrights on a wide range of privately authored model codes, standards, and reference works to invalidation.” Id. The Ninth Circuit warned that “ ‘[t]o vitiate copyright, in such circumstances, could, without adequate justification, prove destructive to the copyright interest in encouraging creativity,’ a matter of particular significance in this context because of ‘the increasing trend toward state and federal adoptions of model codes.’ ” Id. at 518 (citing 1 Nimmer § 5.06[C], at 5-92 (1996)). Similarly, in CCC Information Services, the Second Circuit declined to employ the public domain concept to invalidate a copyright of a car valuation system that had been adopted into some states’ insurance codes. The CCC Information
The extent of SB CCI’s control over a regulation binding on the public further fortifies Veeck’s assertion that a private entity should not be the sole gatekeeper to the public’s laws despite the fact that here, copies were available to individuals at city hall or local libraries. The transformation of SBCCI’s privately created work into a public law provides grounds to invalidate SBCCI’s copyright to the extent that its code is enacted into law. Following along the lines of the reasoning of the First Circuit in BOCA, I conclude that the due process concern for public access to the law forbids a private entity from exerting sole control over a public law through a copyright. Consequently, once enacted, the portions of SBCCI’s codes that become law enter the public domain and are no longer entitled to copyright protection.
B. Merger and the Idea/Expression Dichotomy
The reasoning implemented in the due process/public domain section of this dissent is sufficient to bolster reversal. Reversal could also be predicated on another, equally potent basis. Veeck has asserted that once adopted, SBCCI’s codes become facts that are not protected under the Copyright Act. Further, because the exact language is critical to an enacted law’s meaning, the “idea” embodied in the law merges with SBCCI’s unique expression. In that case, the copyright becomes unavailing to its owner. SBCCI retorts that citizens are able to produce their own version of the information contained in the model codes and that it is only its particular expression that is protected by the Copyright Act. The district court rejected Yeeck’s merger argument, finding that the subject of building codes is open to multiple forms of expression. The majority has affirmed this conclusion.
As a preliminary matter, copyright protection is not extended to facts, procedures, processes, methods of operation, or information in the public domain. See 17 U.S.C. § 102(b); Feist Publications, Inc. v. Rural Tel. Serv. Co.,
I agree with the majority that prior to adoption by local municipalities, SBCCI’s model codes are entitled to copyright protection. Although no court has held decisively that the merger doctrine may be used to invalidate a copyright in a privately developed code that is enacted into law, there is merit to Veeck’s argument that once enacted, the codes do become a fact or idea, in that there is only one accurate way to express an enacted law. The majority fails to explain how, once a model code is adopted as law, either in whole or in part, there exists any other way of expressing the law.
By its very nature, an enacted law enters the public realm as a concrete, definite fact/idea. There is only one accurate way to express a law. Courts consistently stress that, as a preliminary matter, the exact words of a statute govern its interpretation. See, e.g., Kennedy v. Texas Utils.,
Moreover, it is antithetical to our nation’s concept of public participation for a private entity to monopolize the public laws. See generally Kepner-Tregoe,
I am not dissuaded from applying merger in this case by the Second Circuit’s opinion in CCC Information Services. That court did not discuss, with any detail, the issue of whether a copyrighted work would merge with its underlying idea when enacted into law. Instead, the court was concerned with whether the ideas expressed in a compilation of informational matter were entitled to copyright protection. Here, in contrast, our focus is on the adoption of the copyrighted work into law. I would agree with Veeck that once adopted, SBCCI’s model code becomes a concrete fact that is outside the realm of copyrightable works under section 102(b) of the Copyright Act. See Feist,
SBCCI spends thousands of hours developing its codes, providing a valuable service to governments that choose to adopt the model codes as their own. The majority has embraced the arguments set forth by SBCCI that its economic future will be compromised if citizens, such as Veeck, are able to post copies of copyrighted codes on the internet. This argument lacks merit. As SBCCI itself points out, private citizens are already permitted to copy SBCCI’s code from the municipality at City Hall. As such, citizens are able to avoid having to buy SBCCI’s codes from the organizations by viewing a copy at a local government office or library. It is illogical for SBCCI to argue that its viability is threatened if a private individual is able to copy the law to share with others because these others could just as easily access the information from the local government without arousing SBCCI’s protestation. The minute burden that might befall the standards-writing organizations because of the actions of Veeck and others like him is outweighed by the benefit of Veeck’s act of enhancing unfettered access to the law.
Based on the foregoing discussion, I would hold that once a “model code” is adopted into law by the government, a private entity, such as SBCCI, may no longer assert a copyright over the law’s content, for the law enters the public domain and should be readily available for access by all citizens. Further, upon en
I respectfully dissent from the majority’s contrary conclusion.
. The majority emphasizes that Veeck copied the regulation from a clearly marked, copyrighted edition of SBCCI's model code, rather than, presumably, going to the community in question, obtaining a copy of the regulation, and retyping or scanning that document onto his website. I do not view this as material. As Justice Harlan, sitting as a circuit justice, stated over one hundred years ago, "any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual.” Howell v. Miller,
This case raises the issue of the defendant’s conduct with regard to his posting the laws of Texas towns Anna and Savoy on his website (the majority's attention to the defendant's posting of the laws of Denison, Texas notwithstanding). My review of the record below indicates that both Anna and Savoy adopted the precise version of the "model code” posted by Veeck.
. The First Circuit noted that "since the rule denying copyright protection to judicial opinions and statutes grew out of a much different set of circumstances than do these technical regulatory codes, we think BOCA should at least be allowed to argue its position fully on the basis of an evidentiary record.” BOCA,
. This concern is not without merit. It is undisputed that SBCCI spends considerable time developing its codes, and thus provides a valuable service to local governments that choose to adopt the codes, either in whole or in part. The majority asserts, however, that a refusal to enforce SBCCI’s copyright could result in a loss of incentive to create municipal codes. According to the majority, that loss would result in "increased governmental costs as well as the loss of the consistency and quality to which standard codes aspire.” I disagree. SBCCI could charge a fair price to a city for code preparation, which a city could then compare to the cost of in-house preparation.
. While the majority acknowledges that “[t]he global enactment of a code does make that code the law of the enacting municipality and hence, in one sense, a 'fact,' ” it steadfastly maintains that Veeck’s use cannot be saved by the merger doctrine. The majority would, however, hold harmless certain individuals quoting certain sections of the law for a particular purpose, such as "contractors who need to use building codes.” It is difficult indeed to distinguish between this use and that of Veeck. It is beyond peradventure that Veeck posted the building codes on the internet site as a service to the general public, a class which may include contractors and home builders.