As posted on SCOTUSBlog, the Supreme Court has asked the Solicitor General to submit briefs on Southern Building Code v. Veeck. SCOTUSBlog's brief summary of the case: "In Veeck, the Court will review a decision of the Fifth Circuit, en banc, that a website operator did not violate copyright laws by posting verbatim the text of model building codes." The three-judge Fifth Circuit decision is available here. Thanks to an anonymous commenter, the en banc panel's decision is here.
Read more inside for a brief summary of the facts of the case, as well as some thoughts.
The Facts
Southern Building Code Congress International Inc. (SBCCI) is a nonprofit organization that develops model building codes. SBCCI allows local governments to enact these model codes into law without a fee. Once a model code is ineacted into law, a copy of the code is made available for public inspection in the appropriate government's offices. SBCCI also makes its model codes available for sale.
Veeck operates a nonprofit web site that includes the text of local building codes. He tried to get model codes for several towns in Texas, but, failing to find complete versions of any of these building codes, ordered some copies from SBCCI. He then posted the SBCCI's codes online, labeling them as building codes from the appropriate towns.
Three-Judge Panel's Discussion
The Fifth Circuit straightforwardly admits that "[i]n the instant case . . . a policy judgment is indispensable to our balancing of the public interests in, on the one hand, encouraging innovation through copyright and, on the other hand, ensuring free access to the law" (emphasis added).
The public interest that is served by enforcing the copyright: "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."
As to the free-access argument, the Fifth Circuit concludes that public access is sufficiently free: the codes are available for viewing in public offices, they can be photocopied there, or they can be ordered online (for $72). They are also, in some cases, available in public libraries.
(An interesting argument about merger that I won't reproduce.)
As for the argument that Veeck's online posting constitutes fair use, the Fifth Circuit says, "[T]hough the use to which Veeck put SBCCI's works is not harmful per se, it could severely undermine the market for those works if such use were to become widespread. . . . 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." This is not just idle speculation: the Fifth Circuit points to the district court's finding that "some meaningful likelihood of future harm exists."
En Banc Panel's Discussion
The en banc panel reversed the three-judge panel's ruling.
By long-standing precedent, "The law [including judicial decisions and legislative acts] . . . is in the public domain and thus not amenable to copyright."
The court rejects SBCCI's claim that judges are not "authors" of their decisions because judges are paid by the public, and hence have no need for the incentives of copyright law. (Had SBCCI prevailed in this claim, they would have argued that their [SBCCI's] relationship to their work is different from the relationship between judges and their work, since SBCCI requires copyright law for incentives.) Instead, the court argues, the reason judicial decisions are not amenable to copyright is that judicial decisions constitute "the law," and the law should be free for publication to all.
The court also rejects the argument that there is adequate public access to the law in this case to override the need to leave such works un-copyrighted. The law is passed by public bodies, with public input (often from private actors); as such, the public owns the law. This principle implies that the law is in the public domain "for whatever use the citizens choose to make of it." There is no such thing as "minimum public availability" of laws. The court explicitly rejects an utilitarian balance between the good of public access and the good of proprietary ownership of model codes.
After addressing several other issues, the en banc panel concludes that the model code is not copyrighted to the extent that it is adopted wholesale into legislation (in contrast to extrinsic standards or model codes that are only referred to in legislation). All the provisions of the model code not so incorporated are, of course, still copyrighted.
Questions about the Three-Judge Panel
One salient fact that immediately jumped out at me was that Veeck bought the model code from SBCCI and then posted that code onto the Internet. Would this case have come out differently if Veeck had simply posted the building codes of his Texas towns, perhaps not knowing that the material in them was copyrighted by SBCCI? The Fifth Circuit makes some noise about this in rebutting Veeck's argument that enforcing SBCCI's copyright violates free speech: "Veeck's Free Speech defense is further weakened by the fact that he did not first obtain copies of the codes of these two cities and then publish them on the Internet. Instead, Veeck purchased directly from SBCCI a copy of its 1994 Standard Codes, which arrived bearing a copyright notice and a license agreement. He nevertheless copied that set onto his computer and he posted it on the web, identifying it as containing the municipal codes of the two towns. These two possible courses of action are inherently different: The former is more akin to a citizen's fair use of his local building code; the latter comprehends a purchaser who assumes the risk of actively disregarding the intellectual property rights held and announced by the supplier of a commercial product." (The en banc panel wouldn't seem to care--so long as the code that is posted online in fact is present in the actual law, it doesn't matter whether Veeck pulled the text from the SBCCI or from city hall.)
The ALI's Restatements and the UCC are undoubtedly copyrighted--if they weren't, I'm sure free copies would be available at every law school in the country. But a brief glance at the history of the ALI doesn't seem to suggest that these founding fathers would have refrained from restating the law (or proposing model commercial codes) if they couldn't profit from their work. Now obviously this may not be true of SBCCI--but if it were true of the ALI, and somebody wanted to post all the Restatements online, would the Fifth Circuit decide that case differently from this one? (The en banc panel addresses just this concern under "IV. Policy Arguments". Quoting from Goldstein's treatise on copyright, the court notes, "it is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control, and self-regulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them.")
I wonder how much of the three-panel decision would have been different if the judges had been heavy Internet users. An implicit part of the judges' argument is that it just isn't so burdensome for a concerned citizen to get up from his sofa, drive down to city hall, and bother the clerk for a look at the city's codes. And part of what underlies this sentiment is that that's the way things have alway been done before the Internet came around. Now, though, we're dealing with kids (myself included) who would rather look up a word online than grab the dictionary on my bookshelf, or look up a fact on Google rather than trek to the living room for the Encyclopedia Britannica. I wonder if the standards for what constitutes an impermissible burden will change as the level of permissible minimum convenience changes. (This of course becomes irrelevant in the en banc panel's decision, which rejects any utilitarian balancing.)
Anyway I may be completely off here--your thoughts are welcome.
(Note: These questions were based on the three-judge panel, and I've tried putting in some parentheticals after my quick skim of the en banc panel's decision.)