Lexplug logoLexplug

Veeck v. Southern Building Code Congress International, Inc.

Court of Appeals for the Fifth Circuit
293 F.3d 791 (2002)
ELI5:

Rule of Law:

Privately authored model codes enter the public domain and are not subject to copyright protection to the extent they are adopted as law by a legislative body. The author retains copyright protection for the work as a model code, but the public is free to copy and publish the version that has become the law.


Facts:

  • Southern Building Code Congress International, Inc. (SBCCI) is a non-profit organization that develops, promotes, and sells copyrighted model building codes.
  • SBCCI encourages local governments to enact its model codes into law by reference, at no cost to the government entity.
  • The towns of Anna and Savoy, two small towns in north Texas, adopted the 1994 edition of SBCCI's Standard Building Code as their official municipal law.
  • Peter Veeck, who operates a non-commercial website providing information about north Texas, sought to post the local building codes for these towns.
  • Veeck purchased a copy of the 1994 model codes on disk directly from SBCCI for $72.00, which included a restrictive software licensing agreement and copyright notice.
  • Veeck copied the text of the codes from the disk and posted them on his website, identifying them only as the building codes of Anna and Savoy, Texas, not as SBCCI's work.
  • SBCCI demanded that Veeck remove the codes from his website, asserting copyright infringement.

Procedural Posture:

  • Peter Veeck filed a declaratory judgment action against SBCCI in the United States District Court for the Eastern District of Texas.
  • SBCCI filed a counterclaim for copyright infringement.
  • Both parties moved for summary judgment.
  • The district court granted summary judgment for SBCCI, issuing a permanent injunction and awarding damages.
  • Veeck, the appellant, appealed to the U.S. Court of Appeals for the Fifth Circuit.
  • A divided three-judge panel of the Fifth Circuit affirmed the district court's judgment in favor of SBCCI, the appellee.
  • The Fifth Circuit granted a rehearing of the case en banc.

Locked

Premium Content

Subscribe to Lexplug to view the complete brief

You're viewing a preview with Rule of Law, Facts, and Procedural Posture

Issue:

Does a private organization's copyright in a model code remain enforceable against a person who copies and publishes the text of the code after it has been enacted into law by a municipality?


Opinions:

Majority - Judge Edith H. Jones

No. When a privately authored model code is enacted into law, it enters the public domain and is no longer subject to the copyright holder's exclusive rights. The court's reasoning rests on two primary grounds. First, under Supreme Court precedent dating back to Wheaton v. Peters and Banks v. Manchester, 'the law' itself, whether in the form of judicial opinions or statutes, cannot be copyrighted as a matter of public policy to ensure free access for all citizens. The court holds that once Anna and Savoy adopted SBCCI's code, it became 'the law' of those municipalities and thus entered the public domain. Second, the court applies the copyright doctrine of merger, which holds that if an idea can only be expressed in one way, the expression merges with the idea and cannot be copyrighted. Here, the 'idea' is the content of the law in Anna and Savoy, and the 'expression' is the literal text of the code; because there is only one way to accurately state the law, the expression merges with the idea of the law, becoming an uncopyrightable 'fact'.


Dissenting - Judge Patrick E. Higginbotham

Yes. A municipality's adoption of a privately-authored, copyrighted model code does not invalidate the author's copyright. The dissent argues that the majority's decision is a form of federal common law that improperly overrides the choice of local elected officials who decided to license a copyrighted work rather than draft their own. The reliance on Banks is misplaced because that case concerned authorship by public officials, not the invalidation of a private party's valid copyright. Furthermore, the merger doctrine is misapplied in a 'wholly tautological' way; of course the law can only be expressed in one way after it is adopted, but this doesn't erase the fact that the underlying code could be expressed in many ways. The dissent concludes that existing copyright doctrines like fair use are sufficient to protect public access without completely invalidating the copyright that incentivizes the creation of these useful codes.


Dissenting - Judge Jacques L. Wiener, Jr.

Yes. Adopting a per se rule that a copyrighted model code is stripped of all protection upon enactment into law is imprudent and goes beyond established precedent. The dissent argues that this is not a case about public access, as Veeck was never denied access to the law. The majority's reliance on Banks is an overreach, as Banks concerned works created by public officials, not private authors like SBCCI who rely on the economic incentive of copyright to fund their work. The dissent distinguishes this case from those involving judicial opinions or statutes and highlights the federal government's own policy (the National Technology and Transfer Act) of encouraging adoption of private standards while respecting copyrights. Finally, the dissent argues that Veeck's wholesale copying does not qualify for a fair use defense, as it was not transformative and directly harms the potential market for SBCCI's work.



Analysis:

This en banc decision establishes a significant precedent within the Fifth Circuit, holding that privately created works lose copyright protection when enacted into law. It broadens the public domain principle from Banks v. Manchester, which originally applied to government-authored works like judicial opinions, to cover private works adopted by governments. The ruling creates tension with decisions from other circuits, such as the Second and Ninth, which have upheld copyrights on private standards incorporated by reference into regulations. This case has profound implications for standards-developing organizations that rely on revenue from selling their codes, potentially reducing their incentive to create them, while simultaneously enhancing public access to the text of the law.

G

Gunnerbot

AI-powered case assistant

Loaded: Veeck v. Southern Building Code Congress International, Inc. (2002)

Try: "What was the holding?" or "Explain the dissent"