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?
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