Searcher
Vol. 10 No. 2 February 2002
THE SIDEBAR  
Not All Laws Are Free: The Importance of the Veeck Case
by Carol Ebbinghouse Library Director, Western State University College of Law
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Two erroneous assumptions run through the population of Internet users.

1. Everything free is on the Internet.

2. Everything on the Internet is free.

When it comes to legal issues, an erroneous assumption older than the Internet appears:

3. The text of all laws is free of copyright and may be copied and/or distributed freely.

Not all laws reside in the public domain, available for anyone to use and distribute. Try to locate any state's building code. The National Association of Secretaries of State provides a quick place to go to locate Web sites with state regulations [http://www.nass.org/acr/internet.html]. Look in the print version of the state administrative code or code of regulations. Go ahead. Look on the Internet. Look on LexisOne, Findlaw, LexisNexis, or Westlaw. Look high and low.

You may find some provision adopting the Uniform Building Code, Standard Building Code, or some other code as of a certain date, with amendments and/or appendices. This is called "adoption by reference"1 when a secondary document is incorporated into the text of a primary document by including in the primary document a statement that the secondary document should be treated as contained within the primary one. You likely won't find the complete text of these privately developed codes, even though your state or local jurisdiction has adopted them into its regulations and bound you as a citizen to obey the terms.

You thought that all state laws were online? Sorry. Only judicial opinions and laws created by the legislature and passed into law are available free of copyright restraints.

Codes are created, written, proposed, updated, and supplied by private entities that make them available to the regulators (such as the executive branches of the federal, state, or local government), and which are adopted into regulations and ordinances by reference, do not lose their private status by the adoption. While many states load their regulations onto the Internet, the states do not load the materials "adopted by reference," which are created by other bodies and incorporated into the code by reference to an original version deposited with an agency, office, and/or public library.

Still don't agree that all laws are not free? Neither did Mr. Peter Veeck.

He felt that the text of these types of privately developed codes, if adopted by local city governments, should be available on his Web site for free.

[This article will carry quotes from briefs and other documents filed with the court. The vast majority are available at plaintiff Veeck's Web site: http://www.regionalweb.texoma.net/cr. I will also quote from e-mails with individuals. The e-mail messages are on file with the author.]

According to the opinion of the appellate court in Veeck v. Southern Building Code Congress International, Inc. (241 F.3d 398, 5th Cir. 2001, hereafter SBCCI), Peter 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 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.]

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 Copyright Act. SBCCI counterclaimed, asserting five counts of copyright infringement, as well as unfair competition and breach of contract. Both parties moved for summary judgment on the copyright infringement issue.

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.

At the Fifth Circuit Court of Appeals, Veeck had alleged "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." Veeck lost in his first appearance before the 5th Circuit Federal Court of Appeals in a two-to-one decision. The case will next be heard in late January 2002 by the Fifth Circuit sitting en banc (i.e., all of the judges in the circuit will hear the case). Trust me, this case will go to the U.S. Supreme Court before the year is out.
 

Statutes and Judicial Opinions
It is accepted that statutes and judicial opinions are not subject to copyright. State and federal governments can publish their codes and cases, and so can just about anyone else in print, on CD-ROM, on the Internet, or by any other media. In some states there is an "official" publisher of codes and cases, but literally anyone can copy the codes and judicial opinions, republish them, or even load them on the Internet. However, only the actual text of the laws is free of copyright; the notes, summaries of the codes and/or cases construing them are copyrighted and therefore cannot be re-published.
 

Regulations
Most states produce Internet versions of their regulations the administrative codes or codes of regulations developed by state agencies. Cities and counties also have codes, such as ordinances or municipal codes. These are also published and occasionally loaded on the Internet. State and local regulators wrote these regulations and codes while in the employ of the taxpayers. A few states assert copyright in their regulations.

There are lots of other codes adopted by the federal and state regulators that were written by private organizations. Besides building, plumbing, fire, and other safety codes, other types of copyrighted documents are adopted by reference: everything from testing standards of the Underwriter's Laboratories to the DSM III and the "Bluebook," Harvard Law School's Uniform System of Citation, to the ANSI/NISO Z39 (and other) standards.

Practically speaking, if all codes, standards, guidelines, and protocols created by organizations that have been adopted by reference into the Code of Federal Regulations and/or state regulations lost their copyright and were published in the government-produced regulations, the size of the publications would grow exponentially. In fact, the CFR alone might fill one floor of a library unless it went all-digital. The government would likely not update these documents as frequently or as quickly as the author-organizations do, and without copyright protection to protect the members' investment, there would be no incentive for the organizations to create these valuable documents.

Federal agencies have another problem consistency across the nation. Many federal agencies choose to depend upon organizations to provide consistent standards, guides, etc. For instance, the U.S. Department of Health and Human Services' Medicare and Medicaid agencies needed a coding system for definitions and data entry for medical services and treatments provided by doctors and other medical specialists in all of the states. One or more of the federal agencies could have hired consultants, held hearings, created a variety of specialized and/or comprehensive systems for different purposes. Another waste, when the American Medical Association, one of the leading professional organizations of the doctors involved, has already created a comprehensive system.2

However, the public's right to know the laws that affect and bind them is quickly becoming the public's right to the most convenient access Internet access for those who have it. The states are rushing to make more and more government information available, as are individuals and associations (such as the National Association of Secretaries of State) and specialized services such as FindLaw.com. It surprises citizens when they find that privately authored laws and voluntary consensus codes adopted by reference into government regulations do not automatically become as easily available as the text of the regulations themselves.
 

Competing Federal Policy Issues
Several policy issues compete in relation to voluntary consensus codes and standards, including the benefits of private development and copyright protections for authors. State and federal policies can and do seem to conflict with each other at times.

On one hand, the Office of the President, through the Office of Management and Budget's (OMB) Circular3A-119, has determined the benefits of adopting voluntary standards and codes by reference:

Standards developed by voluntary consensus standards bodies are often appropriate for use in achieving federal policy objectives and in conducting federal activities, including procurement and regulation. The policies of OMB Circular A-119 are intended to: (1) Encourage federal agencies to benefit from the expertise of the private sector; (2) promote federal agency participation in such bodies to ensure creation of standards that are useable [sic] by federal agencies; and (3) reduce reliance on government-unique standards where an existing voluntary standard would suffice.

The goals of the government in using voluntary consensus standards are as follows:

a. Eliminate the cost to the Government of developing its own standards and decrease the cost of goods procured and the burden of complying with agency regulation. [Emphasis added.]

b. Provide incentives and opportunities to establish standards that serve national needs. [Emphasis added.]

c. Encourage long-term growth for U.S. enterprises and promote efficiency and economic competition through harmonization of standards.

d. Further the policy of reliance upon the private sector to supply Government needs for goods and services.... Agencies should recognize the positive contribution of standards development and related activities.... When properly conducted, standards development can increase productivity and efficiency in Government and industry, expand opportunities for international trade, conserve resources, improve health and safety, and protect the environment. [Emphasis added.]

The OMB Circular even addresses the availability issue raised in the Veeck case, by providing that...

the agency should reference voluntary consensus standards, along with sources of availability, in appropriate publications, regulatory orders, and related internal documents. In regulations, the reference must include the date of issuance.... If a voluntary standard is used and published in an agency document, your agency must observe and protect the rights of the copyright holder and any other similar obligations. [Emphasis added.]

Therefore, the policy of the executive branch is to "protect the rights of the copyright holder."

State agencies also use voluntary consensus codes and standards and "incorporate by reference" the same as federal agencies. For example, look at the California Code of Regulations title 1, §20, which provides "the method whereby a regulation printed in the California Code of Regulations makes provisions of another document part of that regulation by reference to the other document.'" Under this regulation, California agencies "may 'incorporate by reference' only if the following conditions are met:

(1) The agency demonstrates in the final statement of reasons that it would be cumbersome, unduly expensive, or otherwise impractical to publish the document in the California Code of Regulations.

(2) The agency demonstrates in the final statement of reasons that the document was made available upon request directly from the agency, or was reasonably available to the affected public from a commonly known or specified source. In cases where the document was not available from a commonly known source and could not be obtained from the agency, the regulation shall specify how a copy of the document may be obtained.

(3) The informative digest in the notice of proposed action clearly identifies the document to be incorporated by title and date of publication or issuance. ...\

(4) The regulation text states that the document is incorporated by reference and identifies the document by title and date of publication or issuance. Where an authorizing California statute or other applicable law requires the adoption or enforcement of the incorporated provisions of the document as well as any subsequent amendments thereto, no specific date is required.

Obviously there is a preference for adopting voluntary standards and codes over the expense of each federal agency, each state, and each local branch of government creating its own.

On the other hand, the Copyright Office Compendium II, Chapter 3, §305.08 (d) provides, "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments."

The apparent conflict between the Library of Congress' Compendium and the OMB Circular and state administrative "adoption by reference" provisions is unfortunate.When we called the Copyright Office to discuss the subject, they declined to comment.

The supreme authority is the U.S. Constitution, which provides in Article One, Section 8, Clause 8 that "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In Veeck, one of the arguments is that a valid copyright in a voluntary consensus code can be vitiated by a single governmental entity (of any size) adopting the code by reference thereby tossing it into the public domain. This seems inconsistent with the Constitutional provision, which would preserve the "exclusive right" to the code author.

Amici curiae for SBCCI, the nonprofit code developers, raise the issue by noting:

A holding invalidating a copyright on these grounds would, moreover, be contrary to the Copyright Act which, by its terms, denies copyright protection only to copyrightable works which have been originally created by the federal government or its officials, 17 U.S.C. §§ 101, 105 (1999),4 and which prohibits the seizure or expropriation of a copyright through action by a governmental entity, 17 U.S.C. §201(e) (1999). Such a holding would also be contrary to firmly established government policy, and to the wide practice of federal, state, and local governments throughout the United States in adopting and referencing, without controversy, copyright-protected, privately authored works.

In response, Veeck's reply brief asserts:

Section 201(e) does not contradict Mr. Veeck's arguments. Let's start with a careful reading of Section 201(e) which prohibits expropriation of copyrighted materials by governments.3 Let's parse Section 201(e).

(e) Involuntary Transfer. When an individual author's ownership of a copyright or of any of the exclusive rights under a copyright has not previously been transferred voluntarilyby that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer or exercise rights of ownerships with respect to the copyright or any of the exclusive rights under a copyright shall be given effect under this title except as provided under Title 11. [Emphasis added.]

SBCCI voluntarily gave the cities of Savoy and Anna permission to use the codes in question as their own law. Thus, Savoy and Anna did not expropriate anything by such use. Nor, are we dealing with an act purporting to seize, expropriate, transfer or exercise the rights created by the act. Section 201(e) does not apply.

The conflict between the Copyright Compendium II provisions and the Constitution were raised in the amicus brief of Ohio and 10 other states: "The amici States contend that the rights of a copyright owner can never outweigh the due process rights of the citizens to freely read and copy the text of a law. Copyright, while authorized by the Constitution, is essentially a statutory right. On the other hand, due process is a constitutional right of the first order ... it was considered so important it was included both in the Bill of Rights and in the 14th Amendment. And the due process right at issue here is of fundamental importance to the operation of a free government. In our society, the people are assumed to know the law and are expected to follow it. Without guaranteed access to the text of the law at all times, this right is not just in jeopardy it has been abridged."
 

The Due Process Issue Access to the law
According to Appellant Veeck's Brief,

The law must, as a matter of due process, be available to all of its citizens with the least possible impediment. And, the only rightful gatekeeper to a statute, if there is one, must be the governmental entity responsible for its enactment, propagation, protection, and enforcement, not private parties funding their operations with the proceeds of monopolies in the inherently public function. Nor is due process afforded by allowing a defense of "ignorance" in all criminal cases. The cost of that defense will usually outweigh its value.

Thus, the due process requirement of maximum access to statutes compels the conclusion that their texts are in the public domain and does not permit private copyrights to restrict such access.... The fact that a person with sufficient stamina and interest could find and view these ordinances was held sufficient to satisfy the requirements of due process as a matter of law. Surely, that was the wrong test.

... the Savoy and Anna construction codes may be found quickly and easily on the Internet, and they may be browsed in the comfort, security, anonymity, and privacy of a citizen's own home at whatever hour of the day or night is convenient or that the need or interest arises. Internet access using Mr. Veeck's site is free. That allows people to read, be familiar with, and discuss the law even if they do not have an economic or pressing need to do so. It also facilitates people copying relevant portions with their home computers, cutting and pasting portions into other documents, enlarging the print (for the visually impaired) [R-602], and helps people for whom English is their second language translate the codes into their native tongues [R-602]. Having the law readily available on the Internet facilitates people complying with the law rather than breaking it. Thus, such access is in the public interest from the government's point of view as well as the citizen's.

On this point, the SBCCI brief notes:

The record shows absolutely no evidence that the ordinances of the various jurisdictions are not available at the offices of the relevant municipalities. Due process does not require that the model codes be on sale at public offices, nor in libraries, nor on the Internet. Thus, the District Court was also correct in holding that VEECK's assertions of violations of due process and lack of access were without merit and that no issue of genuine fact existed in his claims.... Furthermore, VEECK has presented absolutely no evidence whatsoever in this case that he or any other member of the public was ever denied reasonable access to any of the model codes. Rather, the evidence plainly indicates that the codes are available for public inspection and copying in the public libraries as well as the city offices in the North Texas area."

In the brief of amicus curiae supporting affirmance, the standards organizations point out, "Veeck's easy access to SBCCI's work demonstrates model codes and standards are frequently more accessible than government drafted works. In sharp contrast to the drafters of a local ordinance who might meet availability requirements exclusively by providing copies for inspection at the municipal clerk's office, standards developers have every incentive to make their works widely available."

Attorney Craig Pinkus pointed out in a November 2d e-mail message:

The Due Process Clause requires that people must have notice of the laws they are required to obey. Judicial determination of the adequacy of that notice has necessarily reflected the technology of the times, although few decisions explicitly deal with the subject. The Veeck decision is implicitly based on horse and buggy technology: "...we shall assume that due process requires at a minimum that the codes should be available for inspection and copying at the city offices...." 241 F.3d at 403. In other words, drive to Town Hall, try to find a copy of the law, read it, make notes.

The Veeck analysis, even if affirmed on rehearing, must ultimately collapse becauseit is counter to the direction of government at all levels in America: online access.Every federal agency, state government, and municipality of sizeis posting as much law as its Internet budget will allow. Governments want to do business with their constituents online, to have as much "eGov" as possible. Veeck is like encouragement ofprivate toll roads during the building of the interstate highway system."

On the other hand, Maureen Brodoff, Associate General Counsel of the National Fire Protection Association, pointed out in a November 5th e-mail:

Not a single case has been cited where a member of the public has not had notice of a model reference code or standard because of lack of availability or access. Veeck himself was easily able to gain access to the SBCCI building code. The availability problem as a constitutional matter could be more appropriately handled in a specific case where an individual could actually claim inability to comply with the law because of lack of access. In such a case, excuse from compliance with the law rather than voiding of the copyright would be a more appropriate remedy. By the way, the constitutional right of access to the law does not, I believe, require that the government or anyone else provide users with free personal copies of the law.... [Emphasis added.]

Finally, as SBCCI pointed out in its brief:

VEECK has presented absolutely no evidence whatsoever in this case that he or any other member of the public was ever denied reasonable access to any of the model codes. Rather, the evidence plainly indicates that the codes are available for public inspection and copying in the public libraries as well as the city offices in the North Texas area.... As the District Court properly noted, VEECK actually only seeks convenience for that group of people who have the capability and wish to access the model code via computers connected to the Internet, rather than access to the law for any and all interested citizens. Due process does not require Internet access for those persons who may have access to computers, sense.
 

First Amendment and Free Speech
Yet another constitutional argument exists for the plaintiff, Mr. Veeck. According to the appellant's brief, "Mr. Veeck presents the quintessential case of disseminating information. The material he posted was purely informational and for the public interest. His kind of distribution is particularly valuable and what the Constitution must protect. But, the First Amendment not only protects Mr. Veeck's right to disseminate. It also protects the public's First Amendment interest in receiving that factual information."

As Mr. Veeck's attorney, Eric Weisberg, points out in his e-mail, "The First Amendment Speech issues are strong,... speech involves the right to hear as well as to tell. The public must hear what the government says its subjects must do. And, Veeck has the right to speak up and tell his community what laws they are required to obey. The First Amendment principles which are incorporated in the Copyright Act 'merger' and 'fair use' provisions should not allow private gatekeepers on such fundamental speech."

The supplemental brief of the Association of Physicians and Surgeons (AAPS) and Eagle Forum focused on the freedom to discuss the law: "Appellant Veeck merely restated the law, a necessary prerequisite to public criticism of it. How can one effectively criticize something without restating it?... On the Internet, it is impossible to engage in meaningful debate about the law if the law itself cannot be posted. By attempting to prevent Veeck from restating the law electronically, SBCCI stifles free speech.... Assertion by private organizations of ownership over the law, in order to prevent the posting of such law on the Internet, arose after the statutory codification of fair use. Technology advances do not wait for Congressional action, and the First Amendment protects Veeck's postings even if the statutory fair use doctrine does not."

The Circuit Court of Appeal found that "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."
 

Merger Idea or Fact
Copyright protects the expression of an idea, but not the idea itself. The doctrine of merger applies where the idea and the expression are so intimately connected that protecting the expression, or words, means protecting an idea or fact or process, etc. Here, where there is just one way, or very few ways to adequately express a particular idea or fact, the doctrine of merger may be applied giving little or no copyright protection to the expression.

The federal copyright law (17 U.S.C. §102(b)) provides: "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."

Under the merger doctrine, Veeck argues that once a government or agency adopts a code expression, then it becomes a fact, or the sole expression of the law in that jurisdiction, and therefore is no longer subject to copyright protection. Appellant's brief noted this, saying, "Statutes fit under this merger rule. Statutory texts are concrete arrangements of controlling words. Statutes can only be expressed in one authoritative way and are, therefore, facts."

Others point out that at the time of creation, the SBCCI codes were original expressions, and note that there are different building codes from different voluntary consensus code organizations and therefore each expression is different and capable of copyright irrespective of adoption by a government or agency. However, "Mr. Veeck has argued that the law, once enacted, becomes a fact which can only be expressed in one way. Any other expression is merely an attempt to describe or explain that fact. The law is, indeed, 'inseparably tied to a particular expression.' ... The fact that ... there may be other codes available dealing with the same subject matter does not change the reality underlying the merger doctrine and its application in this case. There may be thousands of other ideas of what the law should be. But, there is only one Building Code for the City of Anna."

According to Jeff Hague, the Registrar of Regulations for the State of Delaware:

Unless the compilation is a "list" it is protected. The threshold necessary for a work to gain copyright protection is not very high. There is no question that the codes that SBCCI and other organizations create are by themselves subject to copyright protection. Simply because they become readily available to the public by being incorporated into an administrative code does not result in the loss of protection. If Veeck's position is upheld I believe one result would be less interest in organizations developing and maintaining codes of this type. If the possibility existed that once a municipality or state government adopted a particular code that it then becomes readily available for anyone to copy and publish, the incentive is lost to create the work in the first place.

However, the appellant's supplemental brief points out that plaintiff "Veeck has not found any authority supporting the contention that merger is only judged as of the time the original work is created. And, he suggests, such conclusion is inconsistent with the purpose of the doctrine (to deny monopoly control of any ideas, in all cases, no matter in what form they are found)."

So, instead of trying to copyright the text of laws, SBCCI should do as West Publishing Co., and other legal publishers do create value-added editorial text, tables, annotations and other additions capable of copyright protection. As Craig Pinkus of the Lowe Gray Steele and Darko law firm pointed out in his e-mail, "Like West Publishing, SBCCI should be able to thrive despite not owning the law."

However, I should point out that SBCCI created the text of the law in this case; unlike West, which merely republishes the laws created by the legislatures and judges of the states and federal government with added editorial features.

The Veeck court concluded that in the Fifth 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. SBCCI's building codes are infused with the opinions of their authors, from the requirements chosen in the codes to their arrangement, level of detail, and grammatical style. We have addressed the policy concerns raised by this case in determining that the building codes do not fall into the public domain once enacted into law. The policy imbedded in the merger doctrine is limited to the separability of idea and expression and is not appropriately applied here.5

The dissenting opinion in the Fifth Circuit argued with the majority on this point:

...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.... Here, I conclude that the policy benefit of preserving unfettered public access to the law outweighs the interest of permitting the holder of a copyright in a 'model code' to maintain that copyright subsequent to the code's adoption into law.6
 

License and Implied Waiver
According to Peter Veeck's attorney, Eric Weisberg, "The 'works' for which copyright is claimed in Veeck are laws governing primary conduct enforced by serious criminal and civil sanctions. And, the laws are adopted at the request of the author, rather than being 'taken.' The author knew and, indeed, intended the implications of adoption of its works as public's law that they would have to be known and obeyed by the public and that there is strong legal precedent for laws being in the public domain and not subject to copyright. Thus, SBCCI impliedly [sic] licensed and surely waived any claim by giving the codes to the government for such purpose."

The SBCCI brief responds to such reasoning by pointing out that in "addition to expressly reserving its rights, SBCCI's own Web page and materials merely state that it permits governmental entities to adopt the codes by reference: 'The Standard Codes, though copyrighted, may be adopted by reference by any governmental entity without charge.' Since adoption by reference does not involve any copying, the adoption by reference of the model codes in Anna or Savoy, Texas still implies no permission to copy, much less does it imply a complete waiver of the copyright."

The majority opinion in Veeck concluded, "Having concluded that SBCCI's codes are not in the public domain and that due process does not require suppression of SBCCI's copyright, we also conclude that the organization has done nothing to waive copyright protection."7
 

Misuse and Fair Use
Eric Weisberg points out, "the 'misuse' doctrine forbids the use of the copyright control to create monopolies not contemplated by the copyright office. Here, SBCCI is getting governments to adopt, and thereby to force their citizens to obey (and, incidently [sic] buy copies of) SBCCI's works. That adoption gives SBCCI a monopoly in the law, which the copyright office (in Compendium II) has said is not appropriate."

However, according to SBCCI's appellate brief, "SBCCI does not formally license any jurisdiction, nor even require that SBCCI be notified of the adoption of the model codes by reference in a jurisdiction; therefore, there are no controls on the jurisdictions which entail any type of misuse, and therefore, the District Court was correct in holding that there exists no misuse of SBCCI's copyrights."

As for the license on the package of SBCCI computer disks that Mr. Veeck purchased and loaded on his computer for Internet access, the brief argues, "VEECK completely disregarded the law of copyright as well as the license he accepted upon purchase and opening the packaging containing the SBCCI computer discs. That license does not constitute a misuse of copyright, but rather, served as notice to VEECK as a purchaser of a copy of a work in a particular medium, that his ownership of the copy carried with it responsibilities (sic) to the owner of the copyright. As such, SBCCI's enforcement of its valid copyright by way of preventing VEECK from publishing SBCCI's works in their entirety on the Internet without even giving authorship credit to SBCCI does not constitute an attempt by SBCCI to expand the rights given under the Copyright Laws. Therefore, clearly no copyright misuse is present in the instant case."

As the National Fire Protection Association's Brodoff points out:

I think that the non-profit status of virtually all standards developers should be kept in mind in weighing the policy implications of this issue. Standards developers that fund their work through revenues made possible by copyright protection are furthering important public purposes, involving such critical issues as the health and safety of the public. The main benefit of copyright protection for these organizations is not to prevent copying for personal use by members of the public seeking to comply with or comment on the law. Such uses are in any event protected by the "fair use" doctrine which in the case of referenced codes and standards would I suspect be broadly applied by a court in the difficult to imagine circumstance where a standards developer ever tried to claim infringement by such a user.... The main benefit of copyright protection for standards developers is that it allows them to be compensated, like other authors of creative works, for their creations....

As illuminated in the Appellee's brief, "Fair use is expressly defined in the Copyright Act as the use of a copyrighted work, including such use by reproduction in copies for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. 17 U.S.C. 107. The statute further states:

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include

(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. Id. [Emphasis added.]

SBCCI's brief goes on to focus on the fact that Veeck copied to the Internet the entire code, and described:

...the effect of VEECK's copying upon SBCCI and other code writing organizations is substantial, and more than likely fatal....that this type of free publication of the model codes presents a potentially fatal blow to all code writing organizations, and in fact, threatens the actual existence of organizations such as SBCCI and BOCA. In sum, a thief has taken the entirety of a creative work for his own purposes and without authority copied and reproduced the same as nearly verbatim as possible in manner which enables others to access, reproduce, and copy the expressions of the copyright owner without compensation to the owner to his potentially devastating financial detriment. The District Court correctly applied the applicable law to the facts of record and should therefore be affirmed in the holding that VEECK's actions plainly and clearly do not constitute a "fair use" of any sort whatsoever.

Appellant Veeck's brief, on the other hand, presented an exhaustive analysis of the fair-use standards, and included a long argument on how "even copying the entire work may be fair under appropriate circumstance."

However, the trial and appellate courts rejected this argument. The majority opinion held, "This is not an instance of mere copying of the codes for personal use, or of Veeck's asking SBCCI for permission to post the codes on the Web and being denied. Veeck's posting of the codes on the Internet could prove harmful by reducing SBCCI's market and depriving it of income used in its socially valuable effort of confecting, promulgating, and revising model codes. Having evaluated Veeck's copying under the four statutory factors, the potential harm prevents him from prevailing on a fair-use defense."8
 

Conclusion
What will the Fifth Circuit Court of Appeals decide when it hears the arguments en banc in late January 2002? Who knows? If they want the Supreme Court to take the case, the Court will decide in favor of the plaintiff, Peter Veeck, which will arguably create a conflict with the other circuits that have approached these issues.

Whether the highest court in the nation will choose to take the case is another matter. One reason the Supreme Court chooses to take a case is to resolve a conflict between the circuit courts and create consistency in legal rulings. The Fifth Circuit could create such a conflict by holding that there is no copyright in the text of laws adopted by reference although I couldn't predict on which issue they might arrive at this conclusion.

Keep an eye out for the arguments and final opinion by the court. They will surely be posted on the Internet especially Mr. Veeck's Web9 site.

How would you decide based on the analysis of the law? Which issue did you find most compelling?

How would you want the courts to decide, based on your status as a consumer? As a database professional? As a librarian? As a taxpayer?
 

 
A Hypothetical Case
The American Library Association (ALA) could write (and copyright) a model code of public library regulations and propose that your city, county, state (or even the federal government) adopt it. Once adopted, the Association could prohibit state and federal governments from copying the code into its published regulations. LexisNexis and Westlaw might not get it either. Then the Association could sell the code to all libraries regulated by the code. Certainly all the librarians working in libraries regulated by this Code of Library Regulations (CLR?) would want a copy, too. The Association could make sure that the regulations would not be available to anyone unless they paid for a copy (say members $10 and non-members $50). Copyright laws would prohibit anyone from loading the regulations onto the Internet, printing copies, and/or downloading from the CD-ROMs made of the regulations (which the Association would protect with a VERY strict license agreement).

In this hypothetical case, the ALA would have the right to sell the code governing public librarians as a database, a print publication, or CD-ROM and to profit from it. In fact, after all the committee work, hearings, travel expenses gathering input from other library associations and related groups, presentations on the model regulations at a variety of conferences and regional meetings, etc., the ALA would need to recoup its costs of developing the code. It couldn't pass that on to members alone. And then there would be all the work creating the revisions needed to keep the code up-to-date. The rounds of expenses begin again.

Not fair, you say? Why should you have to pay to find out what laws rule your working life? Sure it's fair. Someone had to create the library code of regulations. Under the copyright law the holder would have the exclusive right to profit by selling it or making copies of it. Just because the state regulators saw the wisdom of adopting the Association's well-researched, constantly updated, and exemplary code, instead of devoting years of state employee time to develop one of its own, does not strip the author-association of its copyright in the work. If the state or local government had chosen to come up with a code of its own, then that would be a creation of the state, and the code could be published by the state in printed regulations and made freely available on the Internet. But the state can't do that if someone else wrote the regulations. Neither can the federal government. No one can extinguish a valid copyright in an original work simply by adopting it by reference in a code.

 
Key Issues in Veeck
To help you keep score when the final arguments take place in the Veeck vs. SBCCI case and the opinion emerges, here is a quick summary.

Facts: 
A code, standard, protocol, or other document has been privately authored and the author has copyrighted the document. A government entity has adopted the document by reference in its code (noting the title, date of the document, and often the government offices and libraries where the code may be examined). The government entity may or may not claim copyright in the text of its code.

The issue is whether by adopting the document by reference into its code the government agency has vitiated the copyright of the document's author, or whether the government or anyone else wanting to copy and republish the document may do so under any of the following theories?
 

Arguments:

Defendant/Appellee's arguments

Merger

Once the government entity incorporates the document by reference, it becomes the only version of the law and therefore the expression merges with the code text that cannot be protected by copyright.

More than one entity has created building codes in this country. At the time of creation the codes were original and capable of copyright and to deprive the author organization of copyright by virtue of incorporation by reference in its code is a government taking.

Due Process

The public's right to know the text of the laws and other documents that affect them supersedes any copyright owner's rights in the text of the document. Due process requires notice of the law and access to it. The most convenient and accessible medium is the Internet, and so that should be preferred.

The code organizations claim that due process has always been satisfied by individuals having access to the laws that affect them.

Copyright Misuse

The copyright law forbids the use of a copyright to create a monopoly. Here SBCCI would monopolize the text of the law.

Permitting state and local governments to adopt the code by reference does not create a monopoly, as there are many copies in city offices, libraries, etc., and available for sale in bookstores and on the Internet. Preventing Veeck's violation of copyright and the CD-ROM license by copying the entire code is not creating a monopoly. Fair use protects individuals who make copies of relevant sections for their personal research.

Waiver

By granting permission to state and local governments to adopt their codes by reference, the voluntary code authors have waived their copyright rights to prevent re-publication in any media.

SBCCI copyrighted the codes and licensed its CD-ROMs, and therefore preserved its rights. Granting permission to adopt the code by reference does not imply waiving SBCCI's copyright.


Footnotes
1. See Black's Law Dictionary 770 9(7th ed. 1999).

2. Practice Mgt. Info. Corp. v. American Medical Ass'n., 121 F.3d 516 (9th Cir. 1997) as amended by 133 F.3d 1140 (9th Cir 1998).

3. See OMB Circular A-119 at 63 Fed Reg. 8546 (Thursday, February 19, 1998).

4. See http://www4.law.cornell.edu/uscode/17/ch1.html.

5. Veeck at pp. 407-408.

6. Veeck at pp. 415.

7. Veeck at p. 409.

8. Veeck at p. 410.

9. See Mr. Veeck's Web site at www.regionalweb.texoma.net/cr.


Carol Ebbinghouse's e-mail address is carole@wsulaw.edu
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