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Can a private entity “own” the law? Can it then restrict others’ use of the law? One would think the answer to those questions would be a resounding no, but the issue is not that clear. In fact, over the last two decades, at least four federal appellate courts have upheld a private organization’s copyright in regulatory standards that have been incorporated into public law. The latest case came this year in the 5th U.S. Circuit Court of Appeals. In Veeck v. Southern Building Code Congress International, 241 F.3d 398, a divided 5th Circuit panel held that a set of model building codes developed by a private entity did not enter the public domain simply by virtue of the incorporation of such codes into local law. The court rejected the view that the public’s due process interest in unfettered access to local building regulations warranted invalidating the author’s copyright interest in the codes. The Veeckcase has significant implications for copyright owners, for public interest groups, and for all citizens. Increasingly, federal, state, and local governments and regulatory agencies are incorporating privately developed model codes and data compilations into public law. The tension between protecting the copyrights and guaranteeing free access to the law is becoming even more difficult to reconcile. The apparent trend in the courts is to balance the interests in favor of the copyright owner. Should this continue, citizens seeking to obtain or disseminate information about laws and regulations — particularly through the Internet or similarly convenient and cost-effective digital means — will face a real risk of infringement liability and considerable doubt as to whether fair use and similar defense doctrines will protect them. The plaintiff in Veeck, the Southern Building Code Congress International, is a nonprofit group that develops model building codes and encourages local governments to enact these codes by reference into local law. The SBCCI does not charge the governments for using its model codes, but it does claim the copyright, including the exclusive right to publish and license the codes. Once adopted by a local government, the SBCCI model code is made available to the public in city offices and libraries. Copies can also be bought directly from the SBCCI. The defendant, Peter Veeck, operates a nonprofit Web site called RegionalWeb, which provides public information about the “Texoma” region of northern Texas and southern Oklahoma. In this area are several municipalities that have adopted SBCCI codes. Veeck purchased a copy of the model building codes from the SBCCI and made them available, in their entirety, on RegionalWeb. Upon learning of Veeck’s activities, the SBCCI demanded that he cease his allegedly infringing conduct. Veeck responded by seeking a declaratory judgment from the U.S. District Court for the Eastern District of Texas that his activities did not violate copyright law. The SBCCI counterclaimed. The district court granted summary judgment holding that the SBCCI held valid copyrights in its model codes and that Veeck infringed these works by posting the codes on his Web site. Veeck appealed to the 5th Circuit. Veeck’s principal and most facially compelling argument was that when a local government enacts a privately authored building code into law, the model code falls into the public domain and loses any copyright protection that it might otherwise have enjoyed. At the core of this argument is the notion that due process requires unfettered access to the law and that permitting the SBCCI to claim exclusive rights in a model code impermissibly impinges upon the public’s due process interest. In considering this issue, the Veeckmajority — Judges Jacques Wiener Jr. and Carl Stewart — relied on the two-part analytical framework applied by the U.S. Supreme Court in its 1888 decision in Banks v. Manchester, 128 U.S. 244. The BanksCourt held that a private reporter of a state’s judicial opinions could not assert a copyright interest in his compilation of those opinions. First, the BanksCourt denied copyright protection because the judges who wrote the opinions were paid with public funds; therefore, the opinions were publicly owned. Second, the Court found that, as a matter of public policy, judicial opinions are not subject to copyright protection because the public interest is served by free access to the law. With regard to the first part of the Bankstest, both the majority and the dissent — Chief Judge F.A. Little Jr. of the Western District of Louisiana, sitting by designation — found the fact that the model codes in Veeckwere produced by a private organization, using private funds, to be dispositive on the question of whether the codes were privately owned. (Absent from both opinions is any discussion of whether a government subsidy, in the form of a tax exemption to the nonprofit, gives rise to a possible argument that the public has some cognizable interest in the works produced as the result of that subsidy.) With respect to the second component of Banks, the Veeckmajority acknowledged from the outset the vexatiousness of balancing the public’s interest in access with copyright’s purpose of encouraging private creativity through the grant of exclusive rights. It expressly recognized the merits of the public access argument. Nonetheless, the 5th Circuit ultimately found that the balance tipped in favor of enforcing the copyright. The court attempted to narrow the scope of its holding by signaling that its decision was limited to the “narrow set of facts” before it. The reasoning that underpins the holding, however, suggests that the decision has far greater breadth. First, the 5th Circuit observed with emphasis that no other court faced with the task of weighing the interests at stake in Veeck(with the exception of the Supreme Court in Banks) had found the due process interest in unfettered access to the law to be paramount. Second, the court pointed to considerations of government economy and consistency. “[I]f code writing groups like SBCCI lose their incentive to craft and update model codes and thus cease to publish,” wrote the 5th Circuit, “the foreseeable outcome is that state and local governments would have to fill the void directly, resulting in increased governmental costs as well as the loss of the consistency and quality to which standard codes aspire.” This latter rationale appears to rest on more fundamental assumptions about the benefits of putting core government functions, like lawmaking, into private hands — even when such “outsourcing” may result in some due process loss. The last due process issue the 5th Circuit addressed was whether there was any evidence in the record that the public was actually denied access to the law by the exercise of the SBCCI’s exclusive rights. Given that the building codes could be copied in government offices and libraries, and purchased in bookstores or from the SBCCI, the court found no evidence that Veeck or any others had, in fact, been denied access. What appears to be at the core of the 5th Circuit’s due process analysis is a distinction between analog (hard copy) and digital (including Internet) dissemination. The court seemed to ignore that the Internet is, for many people, a significantly more effective, less costly means of accessing information. It also failed to recognize that the public’s increasing reliance on the Internet is frequently encouraged by government itself. Moreover, it would appear beyond dispute that recognizing the SBCCI’s copyright would have some negative impact upon the public’s ability to access and distribute the model codes. However, the fact that the codes were made available through some mechanism — albeit not the most convenient, cost-effective, or generally accessible — was sufficient, in the 5th Circuit’s view, to satisfy the requirements of due process. A fundamental principle of copyright law is that only the expression of an idea, and not the idea itself, is protectable. Sometimes there are so few ways of embodying an idea that the idea and its expression essentially merge. The merger doctrine serves to bar copyright protection when granting protection would effectively give the author rights in the idea itself. The panel in Veeckdiverged on whether the merger doctrine precluded enforcement of the SBCCI’s copyright. Veeck contended that, once enacted as law, the SBCCI’s building codes became a fact that could only be expressed in one way. Therefore, the adoption of the codes was a transformative event that merged the expression of the model codes with the idea of the municipal law. The question of precisely when the merger of expression and idea is to be judged was critical to the court’s rejection of Veeck’s argument. The court stated that the relevant period of time is when the work is first created, not when it is copied by the alleged infringer. Analyzing the codes at the time of their creation, the court concluded that the “expression does not merge instantly into the idea because … there remain many ways to write model building codes, not just one.” To further support its rejection of the merger doctrine in this case, the majority looked to public policy considerations — principally, that recognizing the SBCCI’s copyright serves the paramount interest of ensuring that private entities have the necessary incentives to create such works. For the dissent, it was precisely the countervailing public policy consideration — that of preserving public access to the law as expressed — that called for application of the merger doctrine. Besides challenging the validity of the SBCCI’s copyright directly, Veeck also argued that his Web posting of the model codes, even if technically infringing, constituted a permissible “fair use.” The fair use doctrine is widely recognized as one of the more fluid and unpredictable areas of copyright law, yet the 5th Circuit addressed this issue in a passage notable for its relative brevity. Finding that the use in Veeckwas clearly noncommercial, the court focused on the effect of the use upon the potential market for or value of the work as being the determinative fair-use factor. The court concluded, “Even though the use to which Veeck put SBCCI’s work is not harmful per se, it could severely undermine the market for those works if such use were to become widespread.” Ironically, the court’s rejection of Veeck’s fair use defense is based on the same potential for broad dissemination of the model codes that seemingly would further the public’s due process interest. Here again, the court appears to be treating analog and digital media differently. This latter point was not lost on Judge Little, who in dissent contended, “It is illogical for SBCCI to argue that its viability is threatened if a private individual is able to copy the law to share with others because these others could just as easily access the information from the local government without arousing SBCCI’s protestations.” In other words, posting the model codes online arguably does no more harm to the SBCCI than permitting the making of hard copies in local government offices. The majority disagreed. Its fair use analysis appears to turn on the notion that reproduction and distribution of the codes by digital means is qualitatively different than reproduction and distribution of the codes by analog means. Conversely, the majority’s due process analysis seems to require the assumption that there is no qualitative difference between the two. In reaching its decision in Veeck, the 5th Circuit relied heavily on the observation that no court to consider the issue has invalidated the copyright in a privately developed work referenced under the law or adopted by a government authority as the law itself. The court cited cases from the 1st, 2nd, and 9th circuits. In the earliest of these cases, Building Officials and Code Administration v. Code Technology Inc., 628 F.2d 730 (1980), the 1st Circuit declined to invalidate the copyright in a building code drafted by a nonprofit group and adopted into state regulations. Notably, the court stopped short of “definitively ruling on the underlying legal issues” and expressed doubt as to whether such a copyright could be enforced, leaving open the possibility that the building code had entered the public domain when it was adopted into law. In CCC Information Services Inc. v. Maclean Hunter Market Reports Inc., 44 F.3d 61 (1994), the 2nd Circuit upheld the copyright in automobile valuation standards created by a private group and incorporated by reference into government regulations. Although the court acknowledged the public policy considerations in favor of finding that the work had entered the public domain, it held that they were outweighed by countervailing considerations in favor of enforcing the copyright. More recently, in Practice Management Information Corp. v. American Medical Association, 121 F.3d 516 (1997), the 9th Circuit upheld the copyright in a medical procedure coding system created by a private group and adopted into federal regulations. Central to the holding was the absence of evidence that parties wishing to use the medical codes had any difficulty accessing them. Instead, in the court’s view, upholding the copyright merely restricted the access of potential copiers. More important, the court added that, to the extent public access to the medical information was impermissibly restricted by the exercise of copyright, other avenues, “including ‘fair use’ and due process defenses,” would be available. Although the Veeckmajority looked to the ultimate holdings in these cases for support, the majority expressly acknowledged the difficulty of drawing clear lines. The court noted, “In joining our sister circuits today, we emphasize that our holding is restricted to the narrow set of facts and circumstances before us.” It added, “Even slightly different facts under different circumstances might produce a different result.” In the dissent’s view, those earlier decisions presented substantive and factual situations distinguishable from that in Veeck. Accordingly, the dissent did not accept the majority’s contention that invalidating the SBCCI copyright would result in a split with the other appeals courts. In particular, the dissent seized upon the 9th Circuit’s refusal to reject outright the viability of a due process defense, as well as the 1st Circuit’s doubt as to whether due process permitted a private entity to “decide for itself when, where, and how the code was to be reproduced and made publicly available.” In the end, the majority holding in Veeck v. SBCCIsends a mixed message. On the one hand, it appears to stand for the position that the public interest in fostering the private development of public law trumps the countervailing public interest in unfettered access to that law. On the other hand, by making so clear that its decision is limited to the precise factual context of Veeck, the 5th Circuit leaves open the possibility of a different outcome under different facts. Certainly the interests in tension in Veeckare difficult — and perhaps impossible — to fully reconcile. Fundamental interests are at stake. For now, Veeckrepresents a fairly significant narrowing of the public’s ability to access, disseminate, and otherwise conduct discourse on public law and regulations. The 5th Circuit’s decision raises the important question of when dissemination over the Internet of publicly developed private law, even for noncommercial purposes, can qualify as fair use. Brett I. Miller is a senior associate in the intellectual property practice group in the D.C. office of Morgan, Lewis & Bockius. Miller’s practice includes counseling, litigation, and transactional representation in copyright, trademark, unfair competition, and Internet-related matters. He may be contacted via e-mail at [email protected]. The author would like to acknowledge the assistance and contributions of Henry Shinn, a law clerk with his firm, in preparing this article.

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