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5th Circuits Affirms Judgment of Internet Copyright Infringement

(February 5, 2001) The U.S. Court of Appeals, Fifth Circuit, issued its opinion in Veeck v. SBCCI upholding the District Court's judgment of copyright infringement. The defendant published in his web site copies of copyrighted model building codes that had been incorporated into law by reference. The Appeals Court, following both precedent and policy arguments, held that a copyrighted work does not lose it protection when adopted into law. One judge dissented.

See, Opinion in Veeck v. SBCCI, U.S.C.A., 5th Circuit, February 2, 2001.

The Southern Building Code Congress International (SBCCI) is a nonprofit organization that develops, promotes, and promulgates model building codes. Local governments, in turn, enact its codes into law by reference, in whole, or in part. SBCCI asserts a copyright in each of its codes.

Peter Veeck, who also uses the name Texoma RegionalWeb, operates a web site that contains information about North Texas, including the towns of Anna and Savoy. Several towns in North Texas have adopted SBCCI model codes, including Anna and Savoy.

The 1st, 2nd and 9th Circuits have reached similar results. Although, the majority in this case stated its holding in more unequivocal language that some of the precedents.
In Building Officials and Code Adm. v. Code Tech., Inc., 628 F.2d 730, 736 (1st Cir. 1980), the Court declined to invalidate the copyright of a building code created by nonprofit group and adopted by the state. However, it also expressed doubt over the enforceability of the copyright given that the state had adopted the code.
In CCC Info. Servs. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994), cert. denied, 516 U.S. 817 (1995), the Court upheld the copyright of a privately prepared listing of automobile values that states required insurance companies to use.
In Practice Mgt. Info. Corp. v. American Med. Ass'n, 121 F.3d 516 (9th Cir. 1997), cert. denied, 522 U.S. 933 (1997), opinion amended by 133 F.3d 1140 (9th Cir. 1998), the Court held that the American Medical Association did not lose the right to enforce its copyright when use of its promulgated coding system was required by government regulations.

Veeck purchased from SBCCI CDs with copies of the building codes. In disregard of the software license and copyright notice, Veeck copied and published these building codes into his web site.

Litigation followed.

U.S. District Court Judge David Folsom (Eastern District of Texas, Sherman Division) ruled on cross motions for summary judgment that Veeck had infringed valid copyrights, and permanently enjoined Veeck from further infringement.

The appeal attracted considerable amicus curiae interests from authors of codes and standards, including the American Medical Association. One Malla Pollack, a law professor at Florida State University, filed an amicus brief in support of Veeck.

Veeck and Pollack argued that SBCCI did not hold a valid copyright. They argued that once enacted into law by reference, codes loose their copyright status. They also argued merger; that is, once enacted by reference into law, codes become a fact which can be expressed in only one way. They also argued that due process rights of citizens to know the law was violated. They further argued freedom of speech, waiver, misuse, and fair use. The Court rejected all of these arguments.

The court noted that the Supreme Court of the United States held in Banks v. Manchester, 128 U.S. 244 (1888), that a private reporter of judicial opinions could not assert copyright protection because judicial opinions are written by publicly paid judges, and are hence publicly owned, and because of the public interest in access to the law.

The Appeals Court went on to distinguish Banks on the basis that SBCCI, not a publicly paid official, created to the model codes.

The Court also noted that three other circuits had addressed this question, and in all cases, declined to invalidate the copyright in question.

The Court further argued the policy underlying copyright protection for private code writers:

We believe that if code writing groups like SBCCI lose their incentives to craft and update model codes and thus cease to publish, the foreseeable outcome is that state and local governments would have to fill the void directly, resulting in increased governmental costs as well as loss of the consistency and quality to which standard codes aspire. A second glance at the names of the amici supporting SBCCI's position in this case provides an idea of the potential sweep of a contrary holding that the authors of model codes could not enforce copyrights in their works once the ultimate reason for their very creation is realized. As amici state in their brief supporting SBCCI, 'these codes and standards are widely used and adopted by local and state government and federal authorities throughout the United States who do not otherwise have the necessary facilities and resources to develop these safety standards independently.' "

 Judge F.A. Little, a District Court Judge of the Western District of Louisiana, sitting by designation, wrote a lengthy dissent. He argued that "Adoption of the model code as law serves to place the law in the public domain ..." and that "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."


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