Related opinion: 5th Cir Rules That Private Standards Adopted As Law Become Public - Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. (Tex) 2002)
|||UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
|||June 7, 2002
|||PETER VEECK, DOING BUSINESS AS REGIONAL WEB, PLAINTIFF/COUNTER DEFENDANT-APPELLANT,
SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC., DEFENDANT/COUNTER CLAIMANT-APPELLEE.
|||Appeals from the United States District Court for the Eastern District
|||Before King, Chief Judge, Jolly, Higginbotham, Davis, Jones, Smith,
Wiener, Barksdale, Emilio M. Garza, DeMoss, Benavides, Stewart, Parker,
Dennis and Clement, Circuit Judges.
|||The opinion of the court was delivered by: Edith H. Jones, Circuit Judge
|||The issue in this en banc case is the extent to which a private organization
may assert copyright protection for its model codes, after the models
have been adopted by a legislative body and become "the law". Specifically,
may a code-writing organization prevent a website operator from posting
the text of a model code where the code is identified simply as the building
code of a city that enacted the model code as law? Our short answer is
that as law, the model codes enter the public domain and are not subject
to the copyright holder's exclusive prerogatives. As model codes, however,
the organization's works retain their protected status.
|||Peter Veeck individually operates "Regional Web" (), a non-commercial
website that provides information about north Texas. Sometime in 1997,
Veeck decided to post on Regional Web the local building codes of Anna
and Savoy, two small towns in north Texas that had adopted the 1994 edition
of the Standard Building Code written by appellee, Southern Building Code
Congress International, Inc. ("SBCCI"). Veeck made a few attempts to inspect
several towns' copies of the Building Code, but he was not able to locate
them easily. Eventually, Veeck purchased the 1994 model building codes
directly from SBCCI; he paid $72.00 and received a copy of the codes on
disk. Although the software licensing agreement and copyright notice indicated
that the codes could not be copied and distributed, Veeck cut and pasted
their text onto his Regional Web. Veeck's website did not specify that
the codes were written by SBCCI. Instead, he identified them, correctly,
as the building codes of Anna and Savoy, Texas.
|||The author of the codes, SBCCI, is a non-profit organization consisting
of approximately 14,500 members from government bodies, the construction
industry, business and trade associations, students, and colleges and
universities. Since 1940, SBCCI's primary mission has been to develop,
promote, and promulgate model building codes, such as the Standard Plumbing
Code, the Standard Gas Code, the Standard Fire Prevention Code, and the
Standard Mechanical Code. SBCCI encourages local government entities to
enact its codes into law by reference, without cost to the governmental
entity. No licensing agreements are executed in connection with legislative
adoption, nor does SBCCI keep track of the entities that have adopted
its codes. Although SBCCI is a non-profit organization, its annual budget,
exceeding $9 million, derives in part from sales of its model codes and
is used to fund continuing activities. There are no restrictions or requirements
on membership in SBCCI, but non-members are charged considerably more
for copies of its codes than are members.
|||While SBCCI continues to assert its copyright prerogatives -- exclusively
to publish the codes and license their reproduction and distribution --
even as to codes that have been adopted by local entities, the organization
insists that it grants liberal permission for copying. To support this
contention, SBCCI offered in evidence several dozen letters of permission
written to entities as diverse as book publishers, seminar providers,
and municipal inspection agencies. Notably, each permit letter carefully
circumscribed the amount of copying allowed.
|||SBCCI's generosity did not extend to Veeck's public-service posting
of the Anna and Savoy building codes on his website. The organization
demanded that he cease and desist from infringing its copyrights. Veeck
filed a declaratory judgment action seeking a ruling that he did not violate
the Copyright Act. SBCCI counterclaimed for copyright infringement, unfair
competition and breach of contract. Both parties moved for summary judgment
on the copyright infringement issue.
|||Finding no genuinely disputed material facts, the district court granted
summary judgment in favor of SBCCI, including a permanent injunction and
monetary damages. On appeal, a divided panel of this court upheld SBCCI's
copyrights in the municipal building codes posted by Veeck, and it rejected
his defenses to infringement based on due process, merger, fair use, copyright
misuse and waiver.
|||We elected to rehear this case en banc because of the novelty and importance
of the issues it presents.
|||As the organizational author of original works, SBCCI indisputably holds
a copyright in its model building codes. See 17 U.S.C. § 102(a). Copyright
law permits an author exclusively to make or condone derivative works
and to regulate the copying and distribution of both the original and
derivative works. 17 U.S.C. § 106. The question before us is whether Peter
Veeck infringed SBCCI's copyright on its model codes when he posted them
only as what they became -- building codes of Anna and Savoy, Texas --
on his regional website. Put otherwise, does SBCCI retain the right wholly
to exclude others from copying the model codes after and only to the extent
to which they are adopted as "the law" of various jurisdictions?
|||The answer to this narrow issue seems compelled by three sources: the
Supreme Court's holding that "the law" is not copyrightable; alternatively,
the Copyright Act's exclusion from its scope of "ideas" or "facts"; and
the balance of caselaw.
|||I. The Supreme Court's View
|||Excluding "the law" from the purview of the copyright statutes dates
back to this nation's earliest period. In 1834, the Supreme Court interpreted
the first federal copyright laws and unanimously held that "no reporter
has or can have any copyright in the written opinions delivered by this
Court. . ." Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668 (1834). The case
arose when one of the Court's official reporters was asserting copyright
protection for his annotated compilations of Supreme Court opinions. The
Court distinguished between the reporter's individual work and the Justices'
opinions. The Court's rejection of copyright for judicial opinions paralleled
the principle --recognized by attorneys for both parties -- that "[s]tatutes
were never copyrighted."*fn3 Based on the acknowledged and incontestable analogy
with legislative acts, Wheaton held unanimously that "the law" in the
form of judicial opinions may not be copyrighted.
|||The same broad understanding of what constitutes "the law" for copyright
purposes underlies the Court's later decision in Banks v. Manchester,
128 U.S. 244, 9 S.Ct. 36 (1888). The Court there denied a copyright to
a court reporter in his printing of the opinions of the Ohio Supreme Court.
The Court first noted that whatever work the judges perform in their official
capacity cannot be regarded as authorship under the copyright law. As
a question of "public policy," the Court stated that,
|||there has always been a judicial consensus, from the time of the decision
in the case of Wheaton v. Peters, 8 Pet. 591, that no copyright could,
under the statutes passed by Congress, be secured in the products of the
labor done by judicial officers in the discharge of their judicial duties.
The whole work done by the judges constitutes the authentic exposition
and interpretation of the law, which, binding every citizen, is free for
publication to all, whether it is a declaration of unwritten law, or an
interpretation of a constitution or statute. Banks, 128 U.S. at 253, 9
S.Ct. at 40. (emphasis added).
|||At this point, Banks relied upon a decision of the Massachusetts Supreme
Judicial Court, which stated,
|||[I]t needs no argument to show that justice requires that all should
have free access to the opinions, and that it is against sound public
policy to prevent this, or to suppress and keep from the earliest knowledge
of the public the statutes, or the decisions and opinions of the Justices.
Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (1886).
|||The court in Nash further observed that a legislature likewise could
not deny public access to statutes.
|||Banks represents a continuous understanding that "the law," whether
articulated in judicial opinions or legislative acts or ordinances, is
in the public domain and thus not amenable to copyright.*fn4 Modern decisions have followed suit.*fn5 Significantly, the 1976 Copyright Act specifically denies
protection to federal statutes and regulations. 17 U.S.C. § 105. Given
the state law foundation of Banks and its progeny, there is no reason
to believe that state or local laws are copyrightable. See generally L.
Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright
Protection for Law Reports and Statutory Compilations, 36 U.C.L.A. L.
Rev. 719, 751-58 (1989); 1 Melville B. Nimmer & David Nimmer, Nimmer
on Copyright § 5.06 [c] at 5-92 (2000) ("state statutes, no less than
federal statutes, are regarded as being in the public domain"); 1 Patry,
Copyright Law and Practice 351, 357 (1994).
|||As governing law, pursuant to Banks, the building codes of Anna and
Savoy, Texas cannot be copyrighted.
|||SBCCI and its numerous amici*fn6 must limit or circumvent the Banks line of cases in
order to prevail. Initially, SBCCI divides Banks into two holdings and
concludes that either holding must be squared with the policies and purposes
of copyright law. This not insubstantial mode of analysis must be carefully
|||The first holding of Banks is said to deny copyright to judicial opinions
because judges, whose salaries are paid by the government, cannot claim
to be "authors" of their official works. SBCCI contends that this discussion
shows only that judges have no need of the Copyright Act's economic incentives
in order to author judicial opinions. Banks, it is implied, articulates
a utilitarian rationale for denying copyright protection to judicial opinions.
SBCCI contrasts government employees with the private "authors" of model
codes who allegedly depend on copyright incentives in order to perform
their public service. SBCCI concludes that this "prong" of Banks does
not apply to private code-writing organizations whose work has been adopted
or incorporated into statutes, ordinances, or government regulations.
Two courts, in addition to the panel that originally heard this case,
have identified the consideration of authorship incentives as a "holding"
of Banks. See Practice Management Info. Corp. v. American Medical Ass'n,
121 F.3d 516, 518 (9th Cir. 1997), opinion amended by 133 F.3d 1140 (9th
Cir. 1998);*fn7 County of Suffolk v. First American Real Estate Solutions,
261 F.3d 179, 194 (2d Cir. 2001).
|||The second "holding" of Banks, which requires "the law" or its exposition
to be "free for publication to all," is recharacterized by SBCCI as a
"due process" argument. That argument devolves into a factual question
concerning public "access" to the law. Because SBCCI contends that there
is no dispute about the adequacy of public "access" to its model codes,
after their enactment as the building codes of Anna and Savoy, Banks is
|||The "dual holding" analysis seems to foist on Banks a rationale that
the Supreme Court never explicitly articulated. Banks, however, does not
bifurcate its holding based on the particular authors' need of the Copyright
Act's incentives or a factual calculus concerning the "adequacy" of public
access to the law. Instead, Banks declares at the outset of its discussion
that copyright law in the United States is purely a matter of statutory
construction. See Banks, 128 U.S. at 251, 9 S.Ct. at 39. In the next paragraph,
the Court points out that the court reporter was not the statutory "author"
of the judicial decisions. Then, the Court states that
|||In no proper sense can the judge who, in his judicial capacity, prepares
the opinion or decision, the statement of the case, and the syllabus,
or head-note, be regarded as their author or their proprietor, in the
sense of [the copyright statute] . . .
|||Judges, as is well understood, receive from the public treasury a stated
annual salary, fixed by law, and can themselves have no pecuniary interest
or proprietorship, as against the public at large, in the fruits of their
judicial labors. 128 U.S. at 253, 9 S.Ct. at 40.
|||The Court then broadly defines the judges' official work and states
that as a matter of public policy and judicial consensus, "no copyright
could, under the statutes passed by Congress, be secured in the products
of the labor done by judicial officers in the discharge of their official
duties." This paragraph of Banks climaxes with the explanation:
|||The whole work done by the judges constitutes the authentic exposition
and interpretation of the law, which, binding every citizen, is free for
publication to all, whether it is a declaration of unwritten law, or an
interpretation of a constitution or statute. Id. at 253-54 [citing Nash
|||There is simply no independent holding in Banks that judges are not
"authors" under the copyright law because, as public officials, they do
not need the "incentives" that copyright law affords in order to write
opinions. Instead, Banks refers to the source of the judges' salary in
order to explain that it is the public at large, not the judges, who have
the "pecuniary interest or proprietorship" in "the fruits of their judicial
labors." The whole of those judicial labors, as Banks immediately defines
them, "constitutes the authentic exposition and interpretation of the
law," which is "free for publication to all . . ." Id.*fn8
|||Moreover, when viewed in light of Wheaton, the last case relied on by
Banks's analysis, the argument for bifurcation is seriously weakened.
Wheaton's holding, as has been shown, derives from an analogy between
judicial opinions and legislative acts as together constituting "the law,"
which is not subject to copyright.
|||The origin of the bifurcated holding interpretation of Banks seems to
lie in the First Circuit's thoughtful opinion in Building Officials and
Code Adm. v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980), but
the First Circuit does not endorse bifurcation. In this opinion, which
will be discussed further infra, the First Circuit considered the argument
of BOCA, the model code writer, urging copyright protection for a model
building code similar in origin and purpose to the one before us. BOCA's
argument, the court said, "implies that the rule of Wheaton v. Peters
was based on the public's property interest in work produced by legislators
and judges, who are, of course, government employees." BOCA, 628 F.2d
|||While acknowledging that this interpretation is "not without foundation,"
the First Circuit cautioned: "But BOCA's argument overlooks another aspect
of the ownership theory discussed in these cases." Id. BOCA then identifies
the real premises of Banks and related cases: the "metaphorical concept
of citizen authorship" of the law, together with "the very important and
practical policy that citizens must have free access to the laws which
govern them." Id. BOCA cited the authorship rationale for Banks only to
find it unsatisfactory. In our view, BOCA was correct.
|||Only by bifurcating Banks can SBCCI achieve its purpose of claiming
authorship of "the law" and proprietary rights in its codes that have
been enacted into law. However, the acceptance of SBCCI's and the dissent's
theory, that non-governmental employees who draft model statutes or regulations
may be entitled to copyright protection, raises troubling issues. The
complexities of modern life and the breadth of problems addressed by government
entities necessitate continuous participation by private experts and interest
groups in all aspects of statutory and regulatory lawmaking. According
to SBCCI, a utilitarian test should be invoked to determine which organizations
"need" the incentives provided by the Copyright Act in order to perform
the public service of drafting specialized statutes, ordinances or regulations.
Alternatively, perhaps SBCCI and the dissent intend that whenever any
private "author" finds his or her proposal adopted verbatim in law, copyright
protection may be claimed.*fn9 As an example, three law professors have taken credit
for drafting a recent federal statute on supplemental federal court jurisdiction.
See 28 U.S.C. § 1367; Christopher M. Fairman, Abdication to Academia:
The Case of the Supplemental Jurisdiction Statute, 28 U.S.C. § 1367, 19
SETON HALL LEGIS. J. 157 (1994). Under SBCCI's reasoning, it is likely
that these professors, had they so desired, could have asserted a copyright
in their "model supplemental jurisdictional provision."*fn10 SBCCI offers no outer limit on claims of copyright
prerogatives by non-governmental persons who contribute to writing "the
|||Not only is the question of authorship of "the law" exceedingly complicated
by SBCCI's and the dissent's position, but in the end, the "authorship"
question ignores the democratic process. Lawmaking bodies in this country
enact rules and regulations only with the consent of the governed. The
very process of lawmaking demands and incorporates contributions by "the
people," in an infinite variety of individual and organizational capacities.
Even when a governmental body consciously decides to enact proposed model
building codes, it does so based on various legislative considerations,
the sum of which produce its version of "the law." In performing their
function, the lawmakers represent the public will, and the public are
the final "authors" of the law.
|||The BOCA decision put it thus:
|||The citizens are the authors of the law, and therefore its owners, regardless
of who actually drafts the provisions, because the law derives its authority
from the consent of the public, expressed through the democratic process.
628 F.2d at 734.*fn11
|||This "metaphorical concept of citizen authorship" together with the
need for citizens to have free access to the laws are the ultimate holding
of Banks. Id.
|||BOCA described free access as a policy "based on the concept of due
process," the people's right to know what the law requires so that they
may obey it and avoid its sanctions. SBCCI and the dissent contend that
this "due process" reasoning involves nothing more than the factual issue
of "sufficient" public access to the building codes of Anna and Savoy.
Since a copy of the codes is available for inspection and individual copying
in a public office, SBCCI contends that the obligations of due process
|||We disagree that the question of public access can be limited to the
minimum availability that SBCCI would permit. Banks does not use the term
"due process." There is also no suggestion that the Banks concept of free
access to the law is a factual determination or is limited to due process,
as the term is understood today. Instead, public ownership of the law
means precisely that "the law" is in the "public domain" for whatever
use the citizens choose to make of it. Citizens may reproduce copies of
the law for many purposes, not only to guide their actions but to influence
future legislation, educate their neighborhood association, or simply
to amuse. If a citizen wanted to place an advertisement in a newspaper
quoting the Anna, Texas building code in order to indicate his dissatisfaction
with its complexities, it would seem that he could do so. In our view,
to say, as Banks does, that the law is "free for publication to all" is
to expand, not factually limit, the extent of its availability.
|||Moreover, as the BOCA decision observed, it is difficult to reconcile
the public's right to know the law with the statutory right of a copyright
holder to exclude his work from any publication or dissemination. SBCCI
responds that due process must be balanced against its proprietary rights
and that the fair use doctrine as well as its honorable intentions will
prevent abuse. Free availability of the law, by this logic, has degenerated
into availability as long as SBCCI chooses not to file suit.*fn12
|||For these reasons, we reject SBCCI's deconstruction of Banks into merely
utilitarian and factual issues. Instead, we read Banks, Wheaton, and related
cases consistently to enunciate the principle that "the law," whether
it has its source in judicial opinions or statutes, ordinances or regulations,
is not subject to federal copyright law.*fn13
|||To sum up this section, we hold that when Veeck copied only "the law"
of Anna and Savoy, Texas, which he obtained from SBCCI's publication,
and when he reprinted only "the law" of those municipalities, he did not
infringe SBCCI's copyrights in its model building codes. The basic proposition
was stated by Justice Harlan, writing for the Sixth Circuit: "any person
desiring to publish the statutes of a state may use any copy of such statutes
to be found in any printed book . . ." Howell v. Miller, 91 F. 129, 137
(6th Cir. 1898).*fn14 See Jerry E. Smith, Government Documents: Their Copyright
and Ownership, 22 Copyright Symposium 147, 174 (ASCAP 1977), reprinted
in 5 Tex. Tech L. Rev. 71, 92 (1973).
|||II. The Copyright Act
|||A. The Merger Doctrine
|||As we earlier stated, SBCCI is the "author" of model building codes
that, qua model building codes, are facially copyright-protected. This
is true even if Banks places the building codes of Anna and Savoy, and
other governmental entities that adopted part or all of SBCCI's model
codes, in the public domain. But if the holding of Banks fails, Veeck
alternatively asserts a defense under the Copyright Act to the protection
of the model codes after they have been enacted into positive law. Once
adopted, he asserts, the model codes become "facts" that are not protected
under the Copyright Act. Further, because there is only one way to express
the meaning of the building codes, the "idea" embodied in the law merges
with SBCCI's expression, and at that point, renders copyright protection
|||It is not the sole purpose of copyright law to secure a fair return
for an author's creative labor. Under the Constitution,
|||The primary objective of copyright is not to reward the labor of authors
but '[to] promote the Progress of Science and the useful Arts.'" Article
I, Sec. 8, clause 8 [U.S. Constitution]. To this end, copyright law assures
authors the right to their original expression, but encourages others
to build freely upon the ideas and information conveyed by a work. This
principle, known as the idea/expression or fact/expression dichotomy,
applies to all works of authorships. Feist Publications, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 349, 111 S.Ct. 1282, 1289-90 (1991).
|||The statute excludes from copyright protection ideas, procedures, processes,
systems methods of operation, or information in the public domain. See
17 U.S.C. § 102(b); Feist Publications, 499 U.S. at 350, 111 S.Ct. at
1290 (citation omitted); Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539, 547-48, 105 S.Ct. 2218, 2223 (1985). If an idea is susceptible
to only one form of expression, the merger doctrine applies and § 102(b)
excludes the expression from the Copyright Act. As the Supreme Court has
explained it, this "idea/expression dichotomy strike[s] a definitional
balance between the First Amendment and the Copyright Act by permitting
free communication of facts while still protecting an author's expression."
Harper & Row, 471 U.S. at 556, 105 S.Ct. at 2228.
|||Veeck copied the building code of the towns of Anna and Savoy, Texas,
based on their adoption of a version of the SBCCI model code. The codes
are "facts" under copyright law. They are the unique, unalterable expression
of the "idea" that constitutes local law. Courts routinely emphasize the
significance of the precise wording of laws presented for interpretation.
See, e.g., Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S.
102, 108, 100 S.Ct. 2051, 2056 (1980) ("[T]he starting point for interpreting
a statute is the language of the statute itself."). Judge Little, dissenting
from the panel opinion in this case, observed that
|||. . . the merger doctrine is especially appropriate because other methods
of expressing the idea are foreclosed. [citation omitted] An individual
wishing to publish the text of a law cannot develop his own, unique version
and still publish an authoritative copy. Veeck v. Southern Bldg. Code
Cong. Int'l, 241 F.3d 398, 416 (5th Cir. 2001) (Little, J., dissenting).
|||It should be obvious that for copyright purposes, laws are "facts":
the U.S. Constitution is a fact; the Federal Tax Code and its regulations
are facts; the Texas Uniform Commercial Code is a fact. Surely, in principle,
the building codes of rural Texas hamlets are no less "facts" than the
products of more August legislative or regulatory bodies. While the Supreme
Court has not stated directly that laws are "facts," it has broadly observed
that, as with census data, "the same is true of all facts -- scientific,
historical, biographical and news of the day. 'They may not be copyrighted
and are part of the public domain available to every person.'" Feist,
499 U.S. at 348, 111 S.Ct. at 1289.
|||Emphasizing not the language of § 102(b), but the "policy" of the merger
doctrine, SBCCI contends that merger poses no bar to copyright protection
here. The idea/expression dichotomy was enacted into law by Congress to
"balance  the competing concerns of providing incentive to authors to
create and foster competition in such creativity." Kern River Gas Transmission
Co. v. The Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).*fn15 Veeck's merger argument ignores the goal of fostering
competition in creativity. SBCCI thus asserts that "merger would only
apply in this case if a subsequent author seeking to create a building
code for Anna or Savoy would have to use the same expression to convey
the idea." SBCCI supplemental en banc brief at 7. This argument effectively
converts the merger doctrine from a limit on copyrightability into a mere
defense against infringement based on the identity of the author. In our
view § 102(b) does foster the creativity that SBCCI applauds, but it does
so by permitting the free flow of information in facts and ideas from
their emergence, rather than as a defense to infringement claims. See
Kern River at 1460; Mason v. Montgomery Data, Inc., 967 F.2d 135, 138
n.5 (5th Cir. 1992) ("Mason argues that application of the merger doctrine
does not render a work uncopyrightable, but rather prevents a finding
of infringement of an otherwise copyrightable work. But this court has
applied the merger doctrine to the question of copyrightability.").
|||SBCCI and the dissent next urge the inapplicability of the merger doctrine
because there are many possible ways to express model codes: both the
multiplicity of building standards and the variety of ways to express
those standards compel the conclusion that the ideas have not merged with
their expression. Cf. Mason, 967 F.2d at 139 (rejecting merger because
the idea embodied in the author's maps can be expressed in a variety of
ways). What SBCCI and the dissent ignore, however, is the graphic merger
of its model building codes with "the law" as enacted by Anna and Savoy,
Texas. Veeck copied from SBCCI's model codes, 1994 edition, because those
codes were transformed into the "fact" and "idea" of the towns' building
codes. Veeck could not express the enacted law in any other way.
|||The final argument deployed by SBCCI and the dissent casts the merger
doctrine as an inherent balancing test in which courts must reconcile
the policies underlying the Copyright Act with the public interest in
the free flow of information and ideas. Compare CCC Info Serv. Inc. v.
McLean Hunter Market Reports, Inc., 44 F.3d 61, 68 (2nd Cir. 1994) (interpreting
Second Circuit's balancing test). It is true that where the line is unclear
between expression and facts, procedures, processes, methods of operation,
or information in the public domain, a court considering the applicability
of § 102(b) must recur to the statute's underlying policy. See, e.g.,
Feist, 499 U.S. at 361-64, 111 S.Ct. at 1295-97 (determining copyrightability
of compilations of facts); Mason, 967 F.2d at 139 (copyrightability of
expression in maps). This case, however, is not close. The building codes
of Anna and Savoy, Texas can be expressed in only one way; they are facts.
Veeck placed those facts on his website in precisely the form in which
they were adopted by the municipalities.*fn16 When the § 102(b) dichotomy is clear, judges are not
permitted to substitute policy choices for the legislature's determination.
|||We emphasize that in continuing to write and publish model building
codes, SBCCI is creating copyrightable works of authorship. When those
codes are enacted into law, however, they become to that extent "the law"
of the governmental entities and may be reproduced or distributed as "the
law" of those jurisdictions.
|||B. Other Provisions*fn17
|||SBCCI's amici make much of provisions of the Copyright Act that, they
contend, should protect SBCCI's copyrights from "appropriation" by local
government entities. Section 105 of the Act, taken together with the definition
of "works of the government," denies copyright protection to official
works of the United States Government, while reserving the possibility
that government employees and contractors may obtain, or transfer to the
government, copyrights for non-official works. 17 U.S.C. §§ 105, 101.
On its face, these provisions say nothing about the relationship between
non-federal government entities and copyright holders. Moreover, they
have never been held inconsistent with Banks or with the merger doctrine.
|||Section 201(e) of the Act reflects Congress's intention to protect copyrights
from involuntary appropriation by government entities. 17 U.S.C. § 201(e).
This is not, however, a "takings" case, not least because SBCCI urged
localities to adopt its model codes. The issue in the case is not the
voluntariness of the appropriation but the legal consequences flowing
from the permission that SBCCI gave.
|||III. The Caselaw; Model Codes v. Standards
|||Until recently in our history, it was understood that Wheaton, Banks
and nearly every other pertinent case held that copyright protection may
not be asserted for the text of "the law".*fn18 The basic proposition was stated by Justice Harlan,
writing for the Sixth Circuit: "any person desiring to publish the statutes
of a state may use any copy of such statutes to be found in any printed
book . . ." Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898).
|||As of 1980, the noncopyrightability of "the law" appeared settled to
the First Circuit in BOCA. The court focused on the real holding of Banks
and accordingly vacated preliminary injunctive relief to the author of
a building code adopted into law by the Commonwealth of Massachusetts.*fn19 The court held that BOCA had failed to carry its burden
of distinguishing, for preliminary relief purposes, the Massachusetts
building code from non-copyrightable statutes and judicial opinions. But
the court then remanded the case for further development in light of the
novelty of the issue, the insufficiency of the trial court record, and
the apparent trend toward adoption of model codes by governmental entities.
The court nevertheless was skeptical that BOCA would prevail, commenting
it is hard to see how the public's essential due process right of free
access to the law (including a necessary right freely to copy and circulate
all or part of a given law for various purposes), can be reconciled with
the exclusivity afforded a private copyright holder . . . BOCA, 628 F.2d
|||Though not a definitive holding, BOCA clearly favors Veeck's position
over that of SBCCI, and it is most closely on point.
|||The record has been developed in this case and, with the perspective
gained from other recent caselaw and from the multiple submissions to
the court, we have no hesitation in confirming BOCA's predisposition against
the copyrightability of model codes to the extent they have been adopted
as law. But the limits of this holding must be explained. Several national
standards-writing organizations joined SBCCI as amici out of fear that
their copyrights may be vitiated simply by the common practice of governmental
entities' incorporating their standards in laws and regulations.*fn20 This case does not involve references to extrinsic
standards. Instead, it concerns the wholesale adoption of a model code
promoted by its author, SBCCI, precisely for use as legislation. Caselaw
that derives from official incorporation of extrinsic standards is distinguishable
in reasoning and result. See CCC Info. Services v. Maclean Hunter Market
Reports, Inc., 44 F.3d 61 (2nd Cir. 1994); and Practice Management Info.
Corp. v. American Medical Ass'n, 121 F.3d 516 (9th Cir. 1997), opinion
amended by 133 F.3d 1140 (9th Cir. 1998).
|||In CCC Information Services, a New York statute required insurance companies
to use the "Red Book," a privately prepared and copyrighted list of projected
automobile values, as one of several standards in calculating the payments
upon the total loss of a vehicle. CCC Information Services systematically
loaded portions of the Red Book onto its computer network and distributed
the information to its customers. One of CCC's theories was that the Red
Book had entered the public domain. The Second Circuit addressed the public
domain issue briefly, stating that "we are not prepared to hold that a
state's reference to a copyrighted work as a legal standard for valuation
results in loss of the copyright." CCC Info. Services, 44 F.3d at 74.
CCC notes the infringer's reliance on the BOCA decision, but it does not
opine on that case, confining itself to the precise facts before the court.
|||Practice Management involved the American Medical Association's copyrighted
coding system for reporting physicians' services and medical procedures.
The Federal Health Care Financing Administration (HCFA) contacted and
then agreed with AMA to use the AMA's coding system for identifying physicians'
services on Medicare and Medicaid reimbursement forms. AMA granted a "non-exclusive,
royalty-free and irrevocable" license to HCFA, without restrictions on
the government's ability to reproduce or distribute AMA's codes. There
was no evidence that AMA had restricted the code's availability to anyone.
The Ninth Circuit held that the HCFA's decision to adopt regulations requiring
physicians to use a version of the AMA code on Medicaid claim forms did
not place the code in the public domain under Banks. Practice Management,
121 F.3d at 519 ("[T]he AMA's right under the Copyright Act to limit or
forgo publication of the [coding system] poses no realistic threat to
|||Both the Second and Ninth Circuits feared that reaching the opposite
conclusion in those cases would have "expose[d] copyrights on a wide range
of privately authored model codes, standards, and reference works to invalidation."
Practice Management, 121 F.3d at 519. The Ninth Circuit suggested that
federal court rules regarding citations could invalidate the copyrightability
of the Blue Book. Id. at n.5. The Second Circuit feared that a ruling
in favor of CCC Information Systems would call into question the copyrightability
of school books once they were assigned as part of a mandatory school
curriculum. CCC Info Services, 44 F.3d at 74.
|||These decisions, and the hypothetical situations they discuss, are all
distinguishable from Veeck. If a statute refers to the Red Book or to
specific school books, the law requires citizens to consult or use a copyrighted
work in the process of fulfilling their obligations. The copyrighted works
do not "become law" merely because a statute refers to them. See 1 Goldstein
Copyright, § 2.49 at n. 45.2 ( noting that CCC and Practice Management
"involved compilations of data that had received governmental approval,
not content that had been enacted into positive law"). Equally important,
the referenced works or standards in CCC and Practice Management were
created by private groups for reasons other than incorporation into law.
To the extent incentives are relevant to the existence of copyright protection,
the authors in these cases deserve incentives. And neither CCC nor AMA
solicited incorporation of their standards by legislators or regulators.
In the case of a model code, on the other hand, the text of the model
serves no other purpose than to become law. SBCCI operates with the sole
motive and purpose of creating codes that will become obligatory in law.
|||At first glance, Practice Management appears to pose a closer issue
because the HCFA did not simply refer physicians to the AMA's coding system.
The court's opinion directs the reader to HHS's notice in the Federal
Register announcing that HCFA would require physicians to
|||use exclusively a common procedure coding system. The system is the
HCFA common procedure coding system (HCPCS). This coding system is to
be used for coding procedures that have been performed . . . and is basically
used for determining reimbursement amounts. HCFA developed the HCPCS in
1979 and 1980 by using the AMA's CPT-4 [the copyrighted coding system]
for physician services and adding HCFA-developed codes for some non-physician
services. In addition, we developed conversion techniques to prevent unwarranted
payment escalation. 50 Fed. Reg. 40895, 40897.
|||To be precise, then, HCFA had its own coding system (the HCPCS) that
incorporated AMA's code but also included additional information.
|||But unlike Veeck, Practice Management Information Corporation, a commercial
publisher of medical textbooks, was not trying to publish its own version
of the HCPCS. Practice Management desired to sell a cheaper edition of
the AMA's code, which was also used by insurance companies and had other
non-governmental uses. It is not clear how the Ninth Circuit would have
decided the case if Practice Management had published a copy of the HCPCS.
By analogy, the result in this case would have been different if Veeck
had published not the building codes of Anna and Savoy, Texas, but the
SBCCI model codes, as model codes.
|||IV. Policy Arguments
|||Many of SBCCI's and the dissent's arguments center on the plea that
without full copyright protection for model codes, despite their enactment
as the law in hundreds or thousands of jurisdictions, SBCCI will lack
the revenue to continue its public service of code drafting. Thus SBCCI
needs copyright's economic incentives.*fn21
|||Several responses exist to this contention. First, SBCCI, like other
code-writing organizations, has survived and grown over 60 years, yet
no court has previously awarded copyright protection for the copying of
an enacted building code under circumstances like these. Second, the success
of voluntary code-writing groups is attributable to the technological
complexity of modern life, which impels government entities to standardize
their regulations. The entities would have to promulgate standards even
if SBCCI did not exist, but the most fruitful approach for the public
entities and the potentially regulated industries lies in mutual cooperation.
The self-interest of the builders, engineers, designers and other relevant
tradesmen should also not be overlooked in the calculus promoting uniform
codes. As one commentator explained,
|||. . . 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. 1 Goldstein § 2.5.2, at 2:51.*fn22
|||Third, to enhance the market value of its model codes, SBCCI could easily
publish them as do the compilers of statutes and judicial opinions, with
"value-added" in the form of commentary, questions and answers, lists
of adopting jurisdictions and other information valuable to a reader.
The organization could also charge fees for the massive amount of interpretive
information about the codes that it doles out. In short, we are unpersuaded
that the removal of copyright protection from model codes only when and
to the extent they are enacted into law disserves "the Progress of Science
and useful Arts." U.S. Const. art. I. § 8, cl. 8.
|||For the reasons discussed above, we REVERSE the district court's judgment
against Peter Veeck, and REMAND with instructions to dismiss SBCCI's claims.
|||PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by KING, Chief Judge,
DAVIS and STEWART, Circuit Judges, dissenting:
|||In this difficult case I am persuaded to join the view that would affirm
the judgment of the district court. It is undisputed that Veeck copied
the copyrighted product of SBCCI. That parts of the copied material contain
the same expressions as the adopted codes of two Texas cities is no defense
unless the use by the cities of the protected expression somehow invalidated
|||The cities could have hired counsel and engineers to draft a code, recouping
its expense either from all taxpayers or by charging a fee to users for
a copy of its ordinance. A city could also decide, on behalf of the citizens,
to license a finished and copyrighted work. Either is a decision by elected
|||Against a refrain that "the law" belongs to the people, Veeck asked
us to conclude, as a matter of federal common law, that the choice made
by the voters of this municipality was not available to it. Its utility
as a decisional norm aside, the refrain passes by the fact that it was
legislators who chose what they thought was the most practical path, to
adopt a technical code developed at the expense of others under a licensing
|||Nothing suggests that private entities will control access to "the law."
A contrary vision persists while ignoring the assured access of persons
interested in the language of the ordinance. We are not told what impediment
a person interested in the ordinance will face that will not be avoided
by the doctrines of fair use and implied license or the constitutionally
footed right of persons to access the law. Nor does developed case law
|||Banks holds that judges, as public employees, cannot have a financial
interest in the fruits of their judicial labors. It is a case about authorship,
about the acquiring of copyrights by public officials, not a case invalidating
the copyrights held by private actors when their work is licensed by lawmakers.
|||As for the merger doctrine, I am not persuaded that it brings anything
more to the table. That doctrine reflects the narrow circumstance where
an idea can be expressed only one way and hence protection of its expression
gives way. A complex code, even a simple one, can be expressed in a variety
of ways. That reality is not ended by choosing one manner of expression
to enact and then pronouncing that this normative rule--"the law"--can
only be expressed in one way. Of course, you have adopted the protected
expression; the reasoning is wholly tautological. It is a restatement
of the conclusion that adopting the codes invalidated the copyright, not
an independent reason why that is so.
|||There is a strong argument for that conclusion and it can be simply
stated without calling on the illusion of the merger doctrine: the thinness
of the protection enjoyed by this specie of copyright is overcome by the
stronger public policy of unfettered access to enacted law, a victory
expressed in the conclusion that enacting the code into law put the expression
in the public domain. Whether that is so is our question and the merger
doctrine does not answer it. Rather we are pushed to decide this case
by reconciling two competing policies, expressed at a high level of generality,
not unlike the large-scale balancing characteristic of judicial findings
of violations of substantive due process. Doing so lacks the accretive
marks of case-by-case adjudication, vital to the discipline of judges
wearing their "common law" hats. Perhaps we will reach that point in the
seriatim course of deciding the cases. If and when we do, the choices
will come with more sharply defined features than the abstraction we now
|||Significantly the absence of easily-found answers to the large, broadly-stated
policy choices calls for caution. As I earlier observed, these small cities
were empowered by the work of SBCCI; they gained the benefit of uniformity
in regulation with other cities in their codes as well as proven quality--with
the ability to charge a small fee for copies. Any person wishing a copy
of the code can obtain it. They can reproduce it for critical commentary
or to express their displeasure with its content, even make copies to
circulate in a campaign urging that it be rescinded.
|||It bears emphasis that the Congress is best suited to accommodate its
Congressionally-created copyright protection with the extraordinary changes
in communication trailing the development of the internet. Unless of course
it is contended that some Constitutional principle denies Congress the
power to authorize copyright protection for governmental entities wishing
to adopt codes such as those before us today. And of course the state
legislatures and the municipalities are differently situated in another
relevant and vital way--the state enjoys an immunity that the municipalities
do not. It is ironical that the federal courts are asked to accept a broadly
stated principle that would regulate the states by decreeing that some
federal principle denies them the choice of accepting or rejecting a license
when absent its waiver of immunity the federal copyright regime is not
enforceable against them. This unexplored territory offers a confusing
backdrop and also counsels caution.
|||Another confusion must be put aside. When Veeck did his work, the code
was already available on the internet, albeit subject to the terms of
its license. Veeck's effort was to put the code on the internet free of
license. To accept Veeck's contention would invalidate the copyright on
every model code except those in inventory that had never been adopted
by any governmental body. Publishing adopted model codes as a set with
the list of governmental bodies adopting them could be accomplished without
honoring the copyright because there would be no copyright.
|||In sum, the suggestion that SBCCI's position asks this Court to extend
the reach of the copyright law is exactly backwards. The copyrights at
issue here were concededly valid before the cities adopted them as codes.
The proper question is whether we should invalidate an otherwise valid
copyright as well as the solemn contract between the governmental body
and SBCCI. That aggressive contention must find stronger legs than the
rhetoric it comes clothed in here. The contention comes with no constitutional
or statutory text, except its reliance upon the merger doctrine, and that
is wordplay. This is federal common law adjudication. Its hallmark must
be case-by-case accretion and measured decision making, even if the case-by-case
explanation of the permissible restraint upon the copying of an enacted
code leads to the conclusion that Veeck urges today--and I am not yet
willing to embrace--that invalidity of the copyright is the inevitable
consequence of code adoption. Rather, I conclude that Veeck violated the
explicit terms of the license he agreed to when he copied model codes
for the internet and posted them. I decide no more.
|||WIENER, Circuit Judge, joined by KING, Chief Judge, and HIGGINBOTHAM,
DAVIS, STEWART, and DENNIS, Circuit Judges, dissenting:
|||Technical codes and standards have become necessary, pervasive, and
indispensable ingredients of Twenty-First Century life in this country;
regrettably, today's majority opinion has a real potential of drastically
changing the societal landscape through that opinion's predictably deleterious
effects on these codes and standards, their authors, and the public and
private entities that daily use and depend on them. Despite efforts to
clothe its ruling in classic copyright lingo ---- "public domain," "fact/expression,"
"merger" ---- in holding for Veeck under the discrete facts of this case,
the majority had to (and did) adopt a per se rule that a single municipality's
enactment of a copyrighted model code into law by reference strips the
work of all copyright protection, ipso facto. Firmly believing that for
this court to be the first federal appellate court to go that far is imprudent,
I respectfully dissent.
|||I. FACTS AND PROCEEDINGS
|||As the underlying facts are undisputed, I adopt the majority opinion's
detailed recitation of the facts, supplementing it with the following
observations contained in the record. The technical codes here at issue
are not mere compilations; rather they are original, "from scratch" creations
by SBCCI which rightfully enjoy copyright protection from their inceptions.
In each of its codes, SBCCI asserts a copyright under which it claims
the exclusive right to publish these codes or license their reproduction
and publication. Despite its copyright, SBCCI ensures free access by specifying
that once a governmental unit enacts such a model code into law, copies
must be made available for inspection by the public in the enacting government's
offices. As a general proposition, members of the public may make or obtain
copies of portions of the adopted versions of SBCCI codes from city offices
or local libraries, or may purchase copies of the codes directly from
SBCCI and from some third-party sources, such as bookstores.*fn23
|||Several municipalities in North Texas have adopted SBCCI's codes, including
the towns of Anna and Savoy. Veeck avers that he attempted to obtain a
copy of the building code of his hometown of Denison, Texas, after learning
that it had adopted SBCCI's Model Building Code as its own. Failing to
locate Denison's building code at local bookstores or libraries, Veeck
ordered copies of the codes that SBCCI had produced. He ordered these
copies in electronic format directly from SBCCI.*fn24 According to Veeck, he later visited approximately
twenty towns in North Texas, including Anna and Savoy, in an effort to
obtain copies of their local building codes, not all of which had been
produced by SBCCI. Veeck was not able to buy complete copies at any of
the towns that he visited.*fn25 He apparently never attempted to view or copy the
SBCCI codes in any city clerk's or other municipal offices of the towns
that had enacted the codes by reference.
|||In contravention of the software license agreement and copyright notice
included with the electronic version of the model codes he purchased from
SBCCI, Veeck failed to identify the codes as the products of SBCCI when
he posted them on his website. Instead, he simply (and inaccurately)*fn26 identified them as the building codes of Anna and
Savoy, Texas. As detailed in the majority opinion, the litigation ensuing
from this conduct culminated with the grant of summary judgment in favor
of SBCCI on its claims for copyright infringement. As Veeck cannot legitimately
find a safe haven in any of his affirmative defenses, the district court's
order should have been affirmed.
|||A. Standard of Review
|||This case is on appeal from a grant of a summary judgment that dismissed
Veeck's declaratory judgment action and granted SBCCI's requested copyright
infringement and damages relief. We review the record de novo, applying
the same standard as the district court.*fn27 B. Merits
|||Despite the efforts of Veeck (and of those amici who support him and
of the en banc majority opinion) to paint this case as a broad one with
dire constitutional implications, the question before us is truly quite
narrow. In fact, it is the majority opinion that creates drastic constitutional
alterations by ruling in Veeck's favor, thereby improvidently decreeing
an absolute and inflexible rule, ill-suited for modern realities. Conversely,
had we held for SBCCI, we would have remained well within the precedential
and persuasive boundaries of established copyright law. My analysis is
necessarily delimited by the particular, undisputed facts of the case:
Veeck is a non-commercial, non-educational, non-contractor, non-official,
non-resident of either Anna or Savoy, who purchased a copyrighted work,
replete with warnings about infringement, and published that work virtually
in its entirety on the internet. Veeck published on his website the entire
substantive portion of the model building code that he purchased from
SBCCI, redacting only the identity of the code's author (SBCCI) and the
statement that the code was copyright protected, and inserting that they
were the codes of Anna and Savoy. Veeck's only professed justification
for infringing SBCCI's copyrights was that two or more small municipalities
in northern Texas ---- of which Veeck was neither a resident nor otherwise
related to in any capacity, official or unofficial ---- had, at the invitation
of the code's author, enacted the codes into law by reference. Because
he cannot, Veeck does not contend that Anna or Savoy denied him access
to their codes or that he (or anyone else) was unable to view the law
to which the citizens of Anna and Savoy are subject. Had Anna, Savoy,
or SBCCI blocked the code's availability, I would be among the first to
recognize Veeck's (and anyone else's) right of access to "THE law." That,
however, is simply not the case before us; this is not a free access case
and cannot be so classified.
|||Under this narrow set of facts, Veeck prevails only because the en banc
majority ruled favorably on at least one of his affirmative defenses,*fn28 without which, his publication of the codes is indisputably
an infringement of SBCCI's copyright. Given Veeck's global re-publication
of SBCCI's copyrighted model codes, his at-best remotely tangential relationship
to the codes and other laws of Anna and Savoy, his inability to present
evidence that he was denied access to the towns' codes by the towns or
SBCCI, the countervailing public policy concerns supporting copyright
protection, and the direction and intent of recent congressional enactments
and appellate case law, we should not have condoned Veeck's violation
of SBCCI's copyright.
|||Reduced to its bare essentials, the majority's holding in favor of Veeck
indisputably enacts the blanket, per se rule that once a copyrighted work
is enacted into law by reference, it loses its entire copyright protection,
ipso facto, regardless of the nature of the author, the character of the
work, or the relationship of the copier to the work or to the governmental
subdivision that enacted the work into law through incorporation by reference.
Such an extremely broad and inflexible rule propels the majority's holding
far beyond the ambit of Congress's enactments, the Supreme Court's pronouncements,
and the opinions of other appellate courts that have addressed similar
issues. Yet the possibility of obtaining such an all-encompassing ruling
constituted Veeck's only hope of overcoming SBCCI's copyright protection
vis-à-vis an otherwise admitted infringer who is too attenuated from anything
that might otherwise excuse the unauthorized copying of these codes cum
ordinances, such as a "need to know" for purposes of complying with one
or more provisions of the codes. Veeck meets none of these criteria.
|||2. Due Process/Public Domain
|||a. Absence of Controlling Legal Authority
|||In the absence of an expressed pronouncement from either the Supreme
Court or Congress,*fn29 our creation of an automatic rule rendering the copyright
of a model code nugatory per se when and if it is enacted into law is
unwise, imprudent, and far in excess of our authority. Before such a work
is enacted into law, the Copyright Act unquestionably affords copyright
protection to its author; and Congress has given no indication that, on
enactment, this protected status evanesces ipso facto as to the whole
universe of potential copiers.*fn30 As I discuss in greater detail below, recent congressional
enactments and accompanying federal agency policies strongly predict that,
were Congress to address the issue here presented, it would preserve the
protection of SBCCI's copyright, at least under circumstances like those
we consider today.*fn31
|||As for the Supreme Court, its most analogous opinion, Banks v. Manchester,
falls markedly short of answering the question.*fn32 The Court grounded its century-and-one-quarter old
Banks holding ----that judicial opinions cannot be copyrighted ---- in
the logic that, as the product of judges who are paid from public coffers
and elected or appointed for the sole purpose of interpreting and applying
the law, judicial opinions can never be copyrighted.*fn33 Thus Banks turns not on the nature of the work but
on the nature of the author. By its own terms, the Banks holding is obviously
limited to the work of taxpayer-paid public officials who produce or interpret
the law. The majority's stretching of Banks to the facts of the instant
case constitutes a clear overreaching that finds no definitive support
from any controlling authority.
|||In the absence of expressed congressional guidance or directly controlling
Supreme Court precedent, we were left to address ----prudentially ----
a wide-open and unresolved question of copyright law: Should the entirety
of a privately confected and promulgated model code, access to which has
been denied to none, lose its copyright protection in toto, against all
the world, solely by virtue of its enactment into law by reference? If
Congress or the Supreme Court wishes to strip totally the copyright protection
otherwise enjoyed by model codes as an automatic result of being enacted
into law, and to justify such emasculation by invoking the doctrines of
free speech, due process, merger, or the like, that would be their prerogative.
Prudence demands, however, that so large a step beyond all established
legal boundaries should not have been taken first by an intermediate appellate
court. Indeed, recent appellate case law, congressional pronouncements,
and federal agency actions, predict the diametrically opposite result:
a discernable trend towards greater governmental adoption of privately
created codes with concomitant retention of copyright protection, tempered,
of course, by express or implied consent or waiver ---- or even fair use
---- for those officials, residents, contractors, subcontractors, and
design professionals who have a need to view and copy portions of codes
to comply with their provisions.
|||b. Policy Analysis for Copyright Protection
|||What Banks and other opinions undeniably teach about assessing the copyright
protection of works like the codes here at issue is that "[t]he question
is one of public policy...."*fn34 Accordingly, these decisions do not stand for the
abstract and generic proposition that all law qua law, regardless of its
form, authorship, or content, is automatically unprotected fair game as
to all copiers, without distinction. Hence, courts are given the weighty
task of balancing, on the one hand, the policy concerns that favor the
constitutionally mandated retention of copyright protection for privately
authored works and, on the other hand, the policy concerns that would
permit stripping the author of a privately created work of copyright protection
once that work is enacted into law. I do not dismiss lightly the policy
considerations supporting this latter concern. Yet, when properly limited
to the narrow set of facts before us, the scale of countervailing policy
considerations is tipped ---- slightly yet undeniably ---- in favor of
enforcing SBCCI's copyright, vis-à-vis Veeck and any others (but only
they) who are identically situated.
|||I begin with an assessment of the policy consideration supporting Veeck's
position ---- namely, the due process and public domain concerns. As an
initial matter, the type of due process asserted by Veeck is murky at
best. He was not denied access to the codes by either the towns or SBCCI
(indeed, he has never alleged that he even tried to attain access directly
from either town, or his home forum for that matter), and he was never
charged with or prosecuted for a code violation;*fn35 therefore, his claim cannot be based on procedural
due process. And, inasmuch as copyright is a federal law, no state action
could deprive him of a fundamental right that would trigger a substantive
due process claim. Neither has Veeck pointed to any state actor who has
purportedly denied him due process. Yet despite his unimpeded access to
the law and the absence of state action, Veeck argues amorphously that
his due process rights somehow allow him freely to copy and publish otherwise
copyright-protected codes once they are enacted into law by reference.
|||I reiterate for emphasis that this would be an entirely different case
if Veeck's (or anyone's) access to the law had been denied or obstructed;
instead, we deal here only with Veeck's bald pronouncement ---- now legitimated
by the majority opinion ---- that, once a code is enacted into law, due
process does not merely afford him access, but also gives him unfettered
copying and dissemination rights.*fn36 The majority's acceptance of Veeck's position is truly
a novel extension of any prior judicial recognition of a due process right.
True enough, Veeck can copy and publish judicial opinions and statutes
on his website with impunity. He can do so, however, not because of his
due process rights, but rather because ---- as judicial opinions and legislatively
drafted statutes have never enjoyed copyright protection, could never
enjoy such protection, and are in the public domain from the moment of
their inception ---- such works are entitled to no copyright protection
|||Logically then, the only possible support for Veeck's due process position
is his wholly unsupported assertion that, by virtue of their adoption
into law by reference, the codes have entered the public domain and are
therefore denuded of all copyright protection whatsoever, regardless of
their content or the identity of the author or other interested parties.
According to Veeck ---- and now our en banc majority ---- simply by virtue
of their adoption into law, SBCCI's model codes have become "THE law";
and as THE law, all THE people (not just those who may be deemed metaphysically
to have been the authors by virtue of their elected legislatures' acts
of adoption) have an absolutely unfettered right to do whatever they please
in the way of copying and publishing, in total disregard of the author's
otherwise valid and enforceable copyright.
|||Admittedly, the majority's argument finds rhetorical support from the
First Circuit's dicta in Building Officials & Code Admin. V. Code
Technology, Inc. (BOCA), in which that court stated "[t]he citizens are
the authors of the law, and therefore its owners, regardless of who actually
drafts the provisions because the law derives its authority from the consent
of the public, expressed through the democratic process."*fn38 Undoubtedly, this metaphorical concept of citizen
authorship cum ownership has great symbolic, "feel-good" appeal. The majority's
uncritical application of that proposition to the instant case, however,
naively treats all manifestations of "THE law" in our increasingly complex
society monolithically and without differentiation. The Supreme Court
took no such position in Banks; in fact, Banks addresses only judicial
opinions and other pronouncements of the law created ab initio by publically
paid officials.*fn39 Furthermore, although the symbolic position advanced
in BOCA's grandiloquent dicta ostensibly contemplates a broad application
for the proposition of citizen authorship and control, BOCA's actual holding
is very narrow and unrelated to any such abstract musings about the democratic
|||In fact, the BOCA court expressly avoided deciding whether BOCA's model
code retained its copyright after enactment, noting that "the rule denying
copyright protection to judicial opinions and statutes grew out of a much
different set of circumstances than do these technical regulatory codes...."*fn40 Therefore, the majority's rote application of the
lofty platitude of citizen ownership of "THE law," without exploring the
distinctions between different types of enactments and the policy considerations
attendant on each, is far too simplistic. Such an analysis is inconsistent
with the thorough policy evaluations evidenced by those courts that heretofore
have deliberated on similar copyright issues.*fn41
|||The privately created model codes enacted into law in this case are
easily distinguishable from judicial opinions or statutes in several important
respects. First and most obviously, model codes are not created by elected
or appointed officials paid from public fisc, rendering inapt the mythical
concept of citizen authorship. Indeed, to the exact opposite, rather than
producing regulatory codes themselves, the officials elected as the citizens'
voice chose, on behalf of their constituents, not to head down the long,
expensive, and highly technical road of special code drafting, opting
instead to adopt, cost-free, codes authored by private entities, because
doing so is convenient, efficient, and cost-effective.
|||Second, these narrowly focused codes are detailed and complex, requiring
technical expertise on the part of the author. Third, they are of limited,
highly specialized effect as to who has a real interest and is actually
affected, unlike judicial opinions and statutes, which generally have
broad if not universal application.
|||Finally, Congress itself has provided the strongest support for the
proposition that these privately created codes should be treated differently
than other laws. Recognizing that the production of a comprehensive technical
code requires a great deal of research, labor, time, and expertise, Congress
in the National Technology and Transfer Act of 1995 (the "NTTA") expressly
directs that "Federal agencies and departments shall use technical standards
that are developed or adopted by voluntary consensus standards bodies...."*fn42 The OMB, in its Circular A-119, which was designed
to provide guidance to federal agencies in the wake of the NTTA, requires
that "[i]f 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."*fn43 These pronouncements by Congress and the OMB strongly
evince a recognition that the privately created regulatory codes and standards
differ greatly from either judicial opinions or a statutes. Technical
codes are indispensable resources in today's increasingly complex, high-tech
society, and they deserve authorship protections not afforded to other
types of "THE law."
|||The First Circuit's overbroad dicta in BOCA was announced in 1980, well
before the advent of the internet and well before the announcement of
the federal government's legislated policy directing the adoption of privately
created codes to serve the principles of efficiency and economic competition.*fn44 Moreover, recent appellate case law supports the recognition
of the clear differences between, on the one hand, privately developed
standards that are adopted into law by reference and, on the other hand,
law created by legislators and judges.*fn45 Thus, the majority's superficially appealing contention
that from a policy perspective, "THE people" may do as they please with
"THE law" rests on the flawed foundation that "THE law," irrespective
of whether it be in the form of opinions, statutes, or regulatory standards
or codes ----and irrespective of by whom it is "made" ---- should be treated
identically. Modern realities and case law directly contradict this simplistic
abstraction: The policy considerations that dictate unlimited and unrestricted
publishing of judicial opinions and statutes simply do not appertain here.
|||The policy concerns supporting the retention of at least some copyright
protection for SBCCI are more persuasive and probative. First and most
importantly, unlike judges and legislators who are paid from public funds
to issue opinions and draft laws, SBCCI is a private sector, not-for-profit
organization which relies for its existence and continuing services, in
significant part, on revenues from the sale of its model codes.*fn46 The necessity of maintaining the economic incentive
of copyright protection for these private entities prompted the Ninth
Circuit to rule in favor of the AMA's retention of its copyright in the
Physician's Current Procedures Terminology ("CPT") despite a federal agency's
adoption of the CPT:
|||The copyright system's goal of promoting the arts and sciences by granting
temporary monopolies to copyrightholders was not at stake in Banks because
judges' salaries provided adequate incentive to write opinions. In contrast,
copyrightability of the CPT provides the economic incentive for the AMA
to produce and maintain the CPT. "To vitiate copyright, in such circumstances,
could, without adequate justification, prove destructive of the copyright
interest, in encouraging creativity," a matter of particular significance
in this context because of "the increasing trend toward state and federal
adoptions of model codes."*fn47
|||This approach is also consistent with the Second Circuit's two pronged
test in County of Suffolk for determining whether a work may be deemed
to be in the public domain: "(1) whether the entity or individual who
created the work needs an economic incentive to create or has a proprietary
interest in creating the work and (2) whether the public needs notice
of this particular work to have notice of the law."*fn48 Here, without the ability to control unrestricted
gratuitous dissemination of its model codes, SBCCI would lose significant
revenue, in turn substantially impinging on the financial incentive and
ability to continue creating and revising its model codes, absent some
alternative source of funds.*fn49
|||The importance of affording organizations like SBCCI protection from
attenuated third parties like Veeck ---- even when motives are pure and
unfair financial competition is not the goal ---- is best underscored
by verbalizing the natural consequence of reducing the revenues, and thus
the creative incentives, for organizations like SBCCI. Without private
code-creating entities, our smaller towns ---- and even some of our larger
cities, states, and agencies of the federal government ---- would be forced
to author their own regulatory codes. Such a task would inefficiently
expend the time and resources of the legislative and executive bodies
of these governmental entities, not to mention the question of available
expertise. To create codes of appropriate detail, accuracy, and information,
governmental bodies would have to enlist the aid of technical experts,
undoubtedly at considerable cost. Finally, causing municipalities, states,
and the federal agencies to engage in this activity could lead to innumerable
variations of any given code, thereby undermining uniformity and, with
it, safety and efficiency. For small towns like Anna and Savoy, such a
result could be even more detrimental, as their limited resources well
might be insufficient to absorb the costs of creating their own codes.
Ultimately, taxpayers would end up paying for a service that is currently
provided efficiently, expertly, and at no expense to them.
|||I hasten to add that, for my analysis to have force, SBCCI need not
be put completely out of business. Continued maintenance of a revenue
source from sales of codes to individual owners, architects, engineers,
materials suppliers, builders and contractors as well as libraries and
other more attenuated purchasers, all of whom buy copies of the codes
directly from SBCCI, serves another public interest. I refer to the continuation
of SBCCI's independence from the self interest of its dues-paying members,
who otherwise might be in a position to command more influence were SBCCI
forced to obtain too great a share of its revenue from such supporters.
Clearly, SBCCI's receipts from sales of the codes substantially reduces
the potential for greater dependence on its membership, presumably allowing
SBCCI to operate without becoming entirely beholden for its existence
to self-interested entities.
|||Finally, denying the Veecks of the world unrestricted republication
and dissemination rights does not obstruct reasonable and necessary usage
of and compliance with the adopted codes. I remain confident that the
copyright doctrines of fair use and implied license or waiver are more
than adequate to preserve the ability of residents and construction industry
participants to copy any portions of the code that they want or need to
view. The fair use doctrine would also protect the use of the code, or
portions of the code, as a teaching tool and would allow experts, lawyers,
and judges freely to cite the code in their briefs or opinions without
infringing SBCCI's copyright. These existing internal safeguards in copyright
law show up the majority's dire predictions for the unrealstic hyperbole
that they are.
|||It is important to keep in mind the record reality that neither Anna
and Savoy themselves, nor builders, contractors, design professionals,
or residents of Anna or Savoy, have complained of denied access to the
codes or being hampered in their efforts to use, copy, or comply with
the codes in a manner consistent with copyright law. Thus, the well-established
doctrines of implied license and fair use preserve the public interest
by allowing copyright protection to co-exist peacefully with all convenient
and necessary use of the model codes.
|||In sum, Veeck has no real support for his infringement, being relegated
to his abstract solipsism that due process immunizes any republication
of the SBCCI's model codes once they are enacted into law by reference.
This court's en banc majority holding today ignores case law from the
Supreme Court and other appellate courts, which have instructed us that
our conclusion here cannot be based on absolute or generic pronouncements
regarding the nature of THE law. Instead we should reach our conclusion
only after a careful weighing of the policy considerations of due process
and copyright law in the unique framework of the particular facts of each
case. Moreover, to the extent that recent congressional enactments and
federal agency policies give guidance, they indicate that SBCCI's copyright
protections should be respected despite adoption of its codes into law.
|||Summarizing all pertinent factors ---- (1) the lack of controlling precedent
from the Supreme Court or specific guidance from Congress on the issue,
(2) federal law and federal agency policy encouraging the adoption of
model codes and increasing the trend toward federal and state adoption
of model codes, (3) the palpable distinction between the model codes at
issue here and judicial opinions or legislative enactments, (4) case law
from our fellow circuits that supports the retention of copyright protection
even after adoption by reference into law, (5) the complete absence of
any denial of access, (6) the truism that neither due process nor the
metaphorical concept of citizen ownership of the law mandates totally
unrestricted publication of adopted model codes, (7) SBCCI's identity
as a private not-for-profit company which, unlike courts and legislatures,
needs self-generated financial resources to continue independently creating
and modifying its codes, (8) the knowledge that governmental obtain, free
of cost, accurate, efficient and uniform regulatory codes which otherwise
would be time-consuming and expensive (if not impossible in many instances)
to develop in SBCCI's absence, and (9) the comfort that all reasonable
and necessary use, copying, and republication by building owners, builders,
contractors, design professionals, teachers, lawyers, as well as citizens
and officials of the towns themselves, is assured protection by the fair
use and implied license doctrines ---- convinces me that the public policy
scale is tipped in favor of enforcing SBCCI's copyright protection against
Veeck, who has never been denied access to the codes of Anna and Savoy
and almost certainly never will be (but, if he ever is, he has alternative
|||Finding that, on balance, these policy considerations favor SBCCI, I
would conclude as a matter of law that, despite being adopted into law,
SBCCI's codes are not in the public domain, and that Veeck's due process
rights cannot be stretched far enough to permit his completely unrestricted
copying and dissemination of SBCCI's codes. Veeck's other statutory and
constitutional defenses similarly fail.
|||3. The Idea/Expression Dichotomy and Merger
|||Veeck insists (and now a majority of the active judges of this court
agree) that the model codes lose their copyright protection by virtue
of the idea/expression (or fact/expression) dichotomy in copyright law.*fn50 Veeck's basic contention is that when a model code
is enacted into law by being adopted by reference, it automatically metamorphoses
from "expression" to emerge as an "idea" ---- and that as an idea, it
cannot be protected.*fn51 Relatedly, he contends that the doctrine of "merger"
applies to nullify protection for expressions of an idea any time that
there are only one or a very limited number of ways to express a given
idea.*fn52 The cornerstone of both arguments is the definition
of "idea" in the context of a model code that has been enacted by reference.
|||a. Defining "Idea"
|||Veeck's argument fails because it misapprehends and misapplies the "idea"
concept in copyright law. "Idea" in copyright law is a term of art which
does not track its everyday, dictionary meaning. What constitutes an "idea"
in the lexicon of copyright law cannot be determined by empirically analyzing
a given fact situation until the nascent dividing line between the "idea"
and its "expression" finally crystallizes; indeed, just the reverse is
true. Case law reveals that identification of the "idea" in a work is
not the starting point but the result of a judicial exercise that in turn
is highly dependent on the precise factual situation being tested.*fn53 Therefore, designation of the enacted code as an idea
vel non is a legal conclusion to be reached by a court, not an initial
factual finding to be gleaned intuitively. That determination of idea
is not antecedent to a policy determination regarding the "copyrightability"
of the code; to the contrary, it is the logical end-product reached after
competing concerns are weighed judicially.*fn54
|||Courts frequently must decide how and at what level to draw the juridical
line between idea and expression for copyright purposes. Judge Learned
Hand, applying the idea/expression dichotomy to determine if one author's
play infringed the work of another playwright, remarked:
|||Upon any work, and especially upon a play, a great number of patterns
of increasing generality will fit equally well, as more and more of the
incident is left out. The last may perhaps be no more than the most general
statement of what the play is about, and at times might consist only of
its title; but there is a point in this series of abstractions where they
are no longer protected, since otherwise the playwright could prevent
the use of his 'ideas,' to which, apart from their expression, his property
never extended. Nobody has ever been able to fix that boundary, and nobody
|||Our task in this case should have been to decide whether the "idea"
embodied in the code is defined, at one extreme of the continuum, as the
entire code itself in its tangible form, or if instead the "idea" is defined
at a more removed and abstract level further along that continuum.
|||My foregoing analysis has already demonstrated that the policy considerations
weigh in favor of granting SBCCI protection against Veeck and other copiers
and republishers identically situated. Having laboriously arrived at this
conclusion, and accepting that a building code can be expressed in myriad
ways, I am convinced that the code in its tangible entirety is not the
unprotected "idea" in this situation.*fn56 None question that this is true for codes that have
not been enacted globally into law by reference, and nothing of which
I am aware can magically change the expression that is the copyrighted
code into a copyright idea by the simple act of adoption as a body of
law. Today I need not, and therefore do not, attempt to answer the question
of exactly where to draw the line and define the idea presented here.
It suffices that the idea at issue in the code is substantially more abstract
than the physical entirety of the code itself; so as a matter of law,
the code as a unitary whole is not an "idea" to be denied copyright protection
absolutely, but rather is one among a significant number of possible "expressions."
|||Libertarian advocates of freedom from essentially all copyright protection
attempt to find a safe harbor in the merger doctrine as a last resort
when they do not prevail on the idea/expression dichotomy. The merger
doctrine, however, is a limited exception in copyright law, intended to
shelter only those rare cases in which the "idea" is susceptible of more
than one expression, but the number of possible expressions is so finite
and small as to have effectively "merged" with the idea.*fn57 Similar to the general misconception of the idea/expression
dichotomy, the widely misunderstood merger doctrine also depends on the
level of abstraction at which the court defines the "idea" that is alleged
to have merged with its expression.*fn58
|||Again, Veeck can find no immunity in the merger doctrine because there
exists a plethora of ways to express a building code, thereby making the
merger doctrine inapplicable. Although some among the many highly specific,
technical, and detailed provisions within a building code might be susceptible
of being expressed in only one or a handful of ways ---- and thus conceivably
be subject to merger ---- a total, unitary building code, in globo, may
be written, organized, and presented in any one of innumerable forms.
All concede that many code-drafting organizations like SBCCI exist and
that they are constantly creating competing versions of topical codes;
yet each is expressed differently ---- and each is copyrighted. As there
exist considerably more than a tiny, finite number of ways to express
a building code, the merger doctrine is inapplicable and thus unavailable
to insulate Veeck's infringement from copyright protection.
|||4. Other Affirmative Defenses to Copyright Infringement
|||Veeck also contends that even if the codes are not in the public domain
and cannot be classified as "ideas," his code copying and dissemination
activities are protected by the doctrines of free speech, misuse, waiver,
and fair use under copyright law.*fn59 I address each of these contentions in turn.
|||a. Free Speech
|||None contends that SBCCI made any attempt to use its copyright to block
or interfere with the public's access to the municipal codes of Anna and
Savoy, Texas. In Schnapper v. Foley, the District of Columbia Circuit
held that the First Amendment does not require the voiding of a copyright,
even in a government-commissioned work, absent evidence that access to
the work had been denied.*fn60
|||Dealing only with the record facts, I find that Veeck's Free Speech
defense is further weakened by what he did not do: He did not first obtain
copies of the codes of these two cities and then publish them on the Internet.
Instead, he purchased directly from SBCCI a copy of all its 1994 Standard
Codes, which arrived bearing a copyright notice and a license agreement.
Ignoring these, Veeck copied that set onto his computer and posted it
on his own website, identifying it as containing the municipal codes of
the two towns but without advising the identity of the author or the fact
of copyright. That which Veeck did and that which he did not do are inherently
different: What he did not do comes closer to an interested party's fair
use of his local building code;*fn61 what he did exemplifies a purchaser who assumes the
risk of actively disregarding the intellectual property rights held and
announced by the author/supplier of a commercial product.
|||Factually, in enforcing its copyright in its model codes, SBCCI simply
is not stifling access to, or speech about, THE law. SBCCI has not violated
the First Amendment vis-á-vis Veeck.
|||The equity-based defense of copyright misuse, which prevents a culpable
author from prevailing in an action for the infringement of a misused
copyright, "'forbids the [copyright holder's] use of the copyright to
secure an exclusive right or limited monopoly not granted by the Copyright
Office and which is contrary to public policy to grant.'"*fn62 In Practice Management, the Ninth Circuit concluded
that the American Medical Association misused its copyright when it licensed
its coding system to the Health Care Financing Administration. The copyright
misuse was the AMA's imposition of a condition on its grant of a license
that the licensee-agency agree not to use any competing system.*fn63 Veeck, in contrast, has raised no genuine issue of
material fact regarding any purported misuse by SBCCI of its copyright.
The summary judgment record is devoid of evidence that the organization
mandates the exclusive use of its codes or any other of its services as
a condition of a governmental subdivision's adopting one of the codes.
There is thus no record evidence of facts constituting misuse that in
turn would prevent enforcement of SBCCI's copyright.
|||Neither can Veeck prevail on his assertion that SBCCI expressly or impliedly
waives its entitlement to copyright protection vis-á-vis the whole world
when it successfully encourages municipalities to adopt its codes by reference.
I readily concede that a copyright can be waived by the author's inaction.*fn64 Here, however, SBCCI expressly reserved its copyright
in the codes. The district court found undisputed the fact that the materials
Veeck received from SBCCI "contained the copyright expressions of the
Defendant." Having concluded that SBCCI's codes are not in the public
domain and that due process does not require suppression of SBCCI's copyright,
I am convinced that the organization has done nothing to waive copyright
|||Copyright also may be waived implicitly by virtue of a particular act,
even if waiver was neither explicit nor the intended result.*fn65
|||Veeck's argument in this regard is that by encouraging the towns to
adopt the codes, SBCCI impliedly waived its copyright protection. This
presupposes that waiver must be an "all or nothing" proposition, and thus
cannot be implicit as to some parties, such as the adopting municipalities,
without loosing its effectiveness altogether, even unto strangers like
Veeck. Except for his bald assertion, however, Veeck presents no viable
support for his waiver proposition. Moreover, when properly analyzed,
his argument is nothing more than a thinly disguised reformulation of
his due process/public domain argument ---- namely, that the mere fact
of adoption automatically and totally vitiated SBCCI's copyright and superceded
SBCCI's contractual protection as against all comers.
|||As fully explicated above, my analysis reaches the conclusion that,
as a matter of law, SBCCI's codes are not in the public domain and that
they retain their copyright protection against Veeck and others thus situated.
I observe that the district court also concluded that the fact that SBCCI
had given the North Carolina Building Inspectors Association permission
to publish on the Internet that state's building codes, which are modeled
on the SBCCI codes, does not constitute universal waiver. As the district
court noted, "[c]ountless entities provide free access to materials on
the Internet and still retain enforcement of their copyrights."
|||d. Fair Use
|||Finally, Veeck argues that his posting of SBCCI's copyrighted material
on the Internet constituted a "fair use." Congress has excepted from infringement
of copyrighted materials such specified uses as news reporting, teaching,
and research.*fn66 Courts are instructed to consider four factors when
deciding whether a particular use of copyrighted material is a "fair use":
|||(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.*fn67
|||When, as with Veeck's infringing activity here, the use of a copyrighted
work is noncommercial, the ability to defeat an infringer's affirmative
defense of fair use requires "proof either that the particular use is
harmful, or that if it should become widespread, it would adversely affect
the potential market for the copyrighted work."*fn68
|||The key question under the "purpose and character" prong is whether
the alleged infringer's product "merely supersedes the objects of the
original creation or instead adds something new with a further purpose
or different character, altering the first with new expression, meaning,
or message. In other words, it asks whether and to what extent the new
work is 'transformative.'"*fn69 Veeck's posting of the codes on his website was not
of a commercial nature or for nonprofit educational purposes. Neither
did his actions in this case have any transformative effect on the original
work.*fn70 In fact, there is neither an apparent nor announced
purpose behind Veeck's wholesale copying except that he chose to do so
and believes, empirically, that he has the unfettered right to do so.
He presents no affidavits or other summary judgment evidence to suggest
that the townsfolk of Anna and Savoy or contractors, builders, or other
interested parties, would not have access to the codes without Veeck's
|||The nature of the copyrighted work constitutes the second prong of the
fair use analysis. The work at issue is an original technical code produced
by a non-profit organization to encourage uniformity, safety, and economy
in a technical area for the benefit of an increasingly complex society.
Within the four-pronged jurisprudential test for fair use, Veeck's position
finds its only viable support in this one factor. Although the code is
an original work requiring creativity on the part of SBCCI, it is also
an informational and functional work. This fact broadens the scope of
the fair use defense.*fn71 In addition, the copyrighted work in this case is
part of the regulatory codes of Anna and Savoy. Although this factor lends
a modicum of support to Veeck's position, it (1) must be considered in
light of all the other factors, and (2) is not as significant as the others
in the fair use determination.*fn72
|||The third fair use factor ---- amount and substantiality of portion
used vis-à-vis copyrighted work as a whole ---- weighs heavily against
Veeck. He published verbatim the entire set of codes obtained from SBCCI.
Even though total copying does not automatically defeat a fair use defense,
and partial copying does not automatically validate it, the general rule
is that reproduction of an entire work constitutes an unfair use.*fn73 Moreover, the codes copied here were not, literally
speaking, "the" codes of Anna and Savoy: Even though the towns' ordinances
adopted the model codes that Veeck copied, the enacting ordinances also
contained modifications and clarifications not found in the verbatim versions
of the SBCCI codes posted by Veeck.
|||Fourth, Veeck's use could have a substantially detrimental effect on
the market for the copyrighted work. In considering this factor, we must
assess the consequences of wide-spread conduct similar to Veeck's, not
just his alone.*fn74 There is no genuine dispute, based on the summary
judgment record, "that some meaningful likelihood of future harm exists."*fn75 Veeck's posting of the codes on the Internet could
prove harmful by depressing the price and reducing SBCCI's market, thus
depriving it of income used in its socially valuable efforts of confecting,
promulgating, and revising model codes. Veeck's non-commercial, free publication
of the codes exacerbates the detrimental effect on the potential market:
By furnishing the codes entirely free of charge, he could effectively
destroy the market rather than simply creating competition and price suppression.
When viewed in this light, the free promulgation of a work is seen to
be potentially more financially deleterious than is commercial piracy
or cut-rate competitive availability. Currently, the sale of the copyrighted
codes to builders, contractors, design professionals, and other interested
parties (1) accounts for one-third of SBCCI's income, (2) provides incentive
for SBCCI to stay in business so that small governmental subdivisions,
like the ones at issue in this case, can obtain the benefits of a pre-crafted
technical code, (3) fosters uniformity, and (4) provides some measure
of independence to SBCCI from its members by holding down the extent of
SBCCI's reliance on membership dues and assessments.
|||The situation presented in this case is not one 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 having permission denied. As Veeck copied SBCCI's
model code verbatim, the fair-use calculus weighs heavily against him.
Veeck's total copying and promulgation of SBCCI's model code, and the
potentially harmful effect of such copying on the market, render his use
|||C. SBCCI's Infringement Counterclaim
|||SBCCI holds valid copyrights in its codes, and Veeck has expressly admitted
copying them. In the absence of a viable defense, the district court was
correct in holding that SBCCI established copyright infringement. Under
these circumstances, I am satisfied that the district court's conclusions
and its award of an injunction and the minimum statutory damages on each
of the five counts of copyright infringement are free of error.*fn76 Likewise, I find no abuse of discretion in the district
court's award of attorneys' fees.*fn77
|||Two decades ago, in BOCA,*fn78 the First Circuit wrestled with the serious issues
raised by what was then only a "possible trend" toward local, state, and
federal adoption of model codes.*fn79 That court wisely left open for future evaluation
the modern realities surrounding technical regulatory codes and standards.
As the BOCA court wrote, groups that develop such works "serve an important
public function; arguably they do a better job than could the state alone
in seeing that complex yet essential regulations are drafted, kept up
to date and made available."*fn80 In like manner, the two federal circuits that subsequently
addressed challenges similar to that considered by the First Circuit in
BOCA have declined to invalidate copyrights in works incorporated by reference
into the law.*fn81 In the legislative arena, Congress has decreed the
policy that federal agencies adopt privately authored technical standards
without voiding the protection afforded to the authors by copyright; and
the OMB has directed all federal agencies adopting such standards to respect
the copyright protections of the copyright holders ---- the diametric
opposite of causing copyright protection to vanish when the work is adopted
|||I emphasize that my analysis is restricted to the narrow set of facts
and circumstances before us. At bottom, I think it improvident for this
court to legislate judicially an absolute, per se rule that referential
enactment of a copyrighted work like a technical code into law mystically
metamorphoses it into an "idea," puts it into the public domain, waives
its copyright protection universally, and otherwise strips it of copyright
protection vel non. Under the instant circumstances, no one is being denied
reasonable access to the SBCCI codes that have been adopted in globo by
local governments; neither does Veeck's specific actions, however altruistic
they might have been, make a viable case for fair use. Nevertheless, I
readily concede, that even slightly different facts under but slightly
different circumstances could convince me to support a different result,
albeit not a per se rule.
|||Today, the trend toward adoption of privately promulgated codes is widespread
and growing, and the social benefit from this trend cannot be seriously
questioned. The necessary balancing of the countervailing policy concerns
presented by this case should have led us to hold that, on these facts,
the copyright protection of SBCCI's privately authored model codes did
not simply evanesce ipso facto, when the codes were adopted by local governments;
rather, they remain enforceable, even as to non-commercial copying, as
long as the citizenry has reasonable access to such publications cum law
---- and subject, of course, to exceptions for implied or express waiver
or consent, fair use, or other recognized exceptions, when applicable.
For these reasons, I cannot join in the majority's inflexible reasoning
and unnecessarily overbroad holding. I therefore respectfully dissent.
|||*fn1 . The facts stated here are undisputed.
|||*fn2 . We review the district court's grant of summary judgment
de novo. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th
Cir. 1998); Fed. R. Civ. P. 56(c). At the summary judgment stage, a court
may not weigh the evidence or evaluate the credibility of witnesses, and
all justifiable inferences will be made in the nonmoving party's favor.
Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct.
2505, 2513-14 (1986)). The district court drew some inferences from the
facts, however, regarding the impact of copyrightability on SBCCI's operations
that, if material, should not have been decided without a trial. We find
it unnecessary to reach those issues.
|||*fn3 . See Precis of Argument by Counsel for Wheaton [pet'r],
33 U.S. (8 Pet.) at 615. Wheaton acknowledged, even while arguing that
judicial opinions could be copyrighted, that "it would be absurd, for
a legislature to claim the copyright; and no one else can do it, for they
are the authors, and cause them to be published without copyright. . .
. Statutes were never copyrighted." Id. Further, "it is the bounden duty
of government to promulgate its statutes in print . . ." Id. at 616. Counsel
for Peters, the respondent, emphasized the governing policy that "all
countries . . . subject to the sovereignty of the laws" hold the promulgation
of the laws, from whatever source, "as essential as their existence."
Id. at 618-19. Peters's brief continues: It is, therefore, the true policy,
influenced by the essential spirit of the government, that laws of every
description should be universally diffused. To fetter or restrain their
dissemination, must be to counteract this policy; to limit, or even to
regulate it, would, in fact, produce the same effect. If either statutes
or decisions could be made private property, it would be in the power
of an individual to shut out the light by which we guide our actions.
Id. at 620.
|||*fn4 . In Davidson v. Wheelock, for example, the court stated
that a compiler of state statutes "could obtain no copyright for the publication
of the laws only; neither could the legislature confer any such exclusive
privilege upon him." Davidson v. Wheelock, 27 F. 61, 62 (D.Minn. 1886).
More famously, Justice Harlan, riding circuit, denied an injunction sought
for the compiler of Michigan statutes, holding that "no one can obtain
the exclusive right to publish the laws of the state in a book prepared
by him." Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898).
|||*fn5 . Harrison Co. v. Code Revision Commission, 260 S.E.2d
30, 34 (Ga. 1979); State of Ga. v. The Harrison Co., 548 F.Supp. 110,
114-15 (N.D. Ga. 1982), vacated per stipulation, 559 F.Supp. 37 (N.D.
|||*fn6 . The amici supporting SBCCI's position include Building
Officials and Code Administrators International (BOCA), International
Code Council, International Conference of Building Officials, American
Medical Association, American National Standards Institute (ANSI), American
Society of Association Executives (ASAE), American Society of Heating,
Refrigerating and Air-Conditioning Engineers (ASHRAE), American Society
of Mechanical Engineers (ASME), National Fire Protection Association (NFPA),
Texas Municipal League, and Underwriters Laboratories, Inc. (UL).
|||*fn7 . Practice Management declares, "The copyright system's
goal of promoting the arts and sciences by granting temporary monopolies
to copyrightholders was not at stake in Banks because judges' salaries
provided adequate incentive to write opinions." Id.
|||*fn8 . If there were an independent holding in Banks relying
on the fact that judges are paid by the public, it was rejected by the
Court itself one month later, when the Court ruled that a court reporter,
notwithstanding that he was a state employee, could assert copyright in
all of his compilation of judicial opinions except the opinions themselves.
Callaghan v. Myers, 128 U.S. 645, 9 S.Ct. 617 (1888).
|||*fn9 . One of SBCCI's amici argues that this is an unrealistic
threat, since, inter alia, the run-of-the-mill lobbyist or good citizen
involved in the legislative process does not assert a copyright. That
these "authors" may be more generous, or less sophisticated, than the
large and well-funded code-writing organizations before us hardly furnishes
a reason to approve an open-ended test of authorship of the law.
|||*fn10 . We are not stating or holding that the authorship
of government works never presents a legitimate issue of copyright. On
the contrary, the Copyright Act carefully defines the extent to which
federal government employees and contractors can obtain copyright protection.
But these provisions have never been held to supersede Banks's holding
that "the law" is in the public domain.
|||*fn11 . Technically, citizen "ownership" of the law might
suggest that local governmental entities, as public representatives, could
prevent copying of the law. As Goldstein notes, the decisions holding
that statutes are in the public domain prevent any such misunderstanding.
1 Goldstein, Copyright, § 2.48 at n.42.
|||*fn12 . SBCCI does not permit governmental entities to publish
its model codes when they are enacted. Instead, it permits their adoption
by reference and furnishes a copy of the adopted code to the entity. SBCCI
also generously allows that if a governmental entity were to publish the
building code on an Internet site to meet its due process obligation,
that would be a fair use. But when the North Carolina Building Officials
were permitted to publish a model code on their non-public access website,
SBCCI expressly reserved its rights.
|||*fn13 . What constitutes "the law" when a governmental entity
adopts or incorporates by reference an author's copyrightable work will
be considered infra, Part III.
|||*fn14 . Our decision might well be the opposite, if Veeck
had copied the model codes as model codes, or if he had indiscriminately
mingled those portions of "the law" of Anna and Savoy adopted by their
town councils with other parts of the model codes not so adopted.
|||*fn15 . See id. at 1460 (proposed route for a pipeline approved
by the Federal Energy Regulatory Commission was an uncopyrightable "idea.")
|||*fn16 . For the first time, in this court, SBCCI alleges
that Veeck did not exactly copy the ordinances, because in the course
of their adoption, the towns rejected certain parts of the SBCCI model
codes. There is no evidence in the district court record to sustain this
|||*fn17 . Veeck also raised infringement defenses based on
his fair use of the model codes or SBCCI's waiver of its copyrights. It
is unnecessary to reach these issues.
|||*fn18 . See also Texas v. West Publishing Co., 882 F.2d
171, 174, 177 (5th Cir. 1989), in which the State of Texas sought a declaratory
judgment that West's copyright in their original arrangement of annotated
Texas statutes was invalid. This court rejected the state's argument and
observed in passing that West did not claim a copyright in the text of
the statutes themselves or in any of the readily-available public compilations
|||*fn19 . BOCA is an amicus curiae in this case supporting
|||*fn20 . See 63 Fed.Reg. 8545, 8554-55 (Feb. 19, 1998) (Office
of Management and Budget Notice of Final Revision of Circular A-119) (directing
federal agencies to adopt privately developed standards "whenever practicable
and appropriate" to "eliminate[ ] the cost to the Government of developing
its own standards").
|||*fn21 . SBCCI's factual "evidence" on this point consisted
of self-serving affidavits from its officers and employees, and proof
that it earns perhaps 40% of its revenue from sales of the domestic model
codes and amendments. No effort was made to show by what amount copying
by people like Veeck would or could reduce the organization's revenue.
|||*fn22 . This court's opinion does not, of course, withdraw
all copyright protection from the model codes qua model codes.
|||*fn23 . As noted by the majority members and nonmembers
are charged different prices for copies of the codes. For example, members
were charged $48 for a copy of SBCCI's 1994 Standard Building Code, for
which nonmembers were charged $72.
|||*fn24 . The record is not completely clear, but it appears
that Veeck made no 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 same as the version adopted by Denison.
|||*fn25 . It appears that in some of the cities, the correct
version of the building code was not available at alternative locations.
For instance, Sherman, Texas, had adopted the 1997 version of the building
code, but the local library had only the 1994 version on hand.
|||*fn26 . Veeck did not include the enacting ordinances of
either municipality. Anna's enacting statute, for example, includes ordinances
resolving conflicts between the adopted SBCCI code and previous city laws
and also includes a clarification regarding which city officials would
be responsible for enforcing different sections of the code.
|||*fn27 . Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998).
|||*fn28 . Veeck advanced defenses grounded in due process,
public domain, fair use, waiver, copyright misuse, merger, and free speech.
|||*fn29 . Cf. CCC Information Services, Inc. v. Maclean Hunter
Market Reports (CCC), 44 F.3d 73-74 (2d Cir. 1994) (discussing whether
the Red Book, which was adopted by States as the legal standard for car
valuations, passed into the public domain by virtue of its reference into
the law): The [public domain] argument is that the public must have free
access to the content of the laws that govern it; if a copyrighted work
is incorporated into the laws, the public need for access to the content
of the laws requires the elimination of the copyright protection. ...
No authority cited by CCC directly supports the district court's view
[the view that the Red Book had passed into the public domain]. ... We
are not prepared to hold that a state's reference to a copyrighted work
as a legal standard for valuation results in loss of the copyright. (emphasis
|||*fn30 . Cf. County of Suffolk v. First American Real Estate
Solutions, 261 F.3d 179, 193 (2d Cir. 2001) ("The determination that no
one may own a copyright in statutes and opinions arises not from a specific
provision of the Copyright Act, but from a 'judicial gloss' on the Act.")
|||*fn31 . See, e.g., National Technology and Transfer Act
of 1995, P.L. 104-113, § 12(d), 110 Stat. 783 (1996); OMB Circular A-119,
63 Fed. Reg. 8545, 8555 (Feb. 19, 1998).
|||*fn32 . Banks v. Manchester, 128 U.S. 244, 253 (1888) (holding
judicial opinions uncopyrightable because they are created by judges paid
from the public's coffers); see also Wheaton v. Peters, 33 U.S. 591, 668
|||*fn33 . This rationale is also applicable to statutes created
by legislators paid by public funds.
|||*fn34 . Banks, 128 U.S. at 253; see also CCC, 44 F.3d at
68: We reach this conclusion [reversing summary judgment in favor of a
publisher who copied portions of appellant's used car valuations which
were referenced by state statutes] based on the need to balance the conflicts
and contradictions that pervade the law of copyright, and the need, where
elements of copyright law conflict, to determine, as a policy judgment,
which of its commands prevails over the other. (emphasis added).
|||*fn35 . Should some municipality, or SBCCI, ever truly restrict
the public's free access to the enacted codes, any defendant prosecuted
for violating sections of the building codes would surely prevail on a
due process defense.
|||*fn36 . Cf. Practice Management Information Corp. v. American
Medical Association (Practice Management), 121 F.3d 516, 519 (9th Cir.
1997) (in denying the Practice Management's due process/public domain
argument, the court noted "Practice Management is not a potential user
denied access to the CPT, but a putative copier wishing to share in AMA's
statutory monopoly. Practice Management does not assert the AMA has restricted
access to users or intends to do so in the future.").
|||*fn37 . Moreover, as further discussed infra, wide, unrestricted
dissemination of opinions and statutes has no possible harmful effects
on the "creativity" of those who author judicial opinions and statutes;
their jobs and their compensation have no nexus to their creativity, and
|||*fn38 . BOCA, 628 F.2d 730, 734 (1st Cir. 1980).
|||*fn39 . County of Suffolk v. First American Real Estate
Solutions, 261 F.3d 179, 194 (2d Cir. 2001) ("Banks is properly read as
requiring a determination whether the particular governmental entity or
employee has adequate incentive to create the work absent copyright protections.").
|||*fn40 . BOCA, 628 F.2d at 736 (emphasis added).
|||*fn41 . See Banks, 128 U.S. 244; County of Suffolk, 261
F.3d 179 (2d Cir. 2001); Practice Management, 121 F.3d 516 (9th Cir. 1997);
CCC, 44 F.3d 61 (2d Cir. 1994); BOCA, 628 F.2d 730 (1st Cir. 1980).
|||*fn42 . National Technology and Transfer Act of 1995, P.L.
104-113, § 12(d), 110 Stat. 783 (1996). I note that although the NTTA
and the OMB Circular address the policy of using privately created standards
and retaining copyright protection for those standards, they are still
wholly applicable to the analysis of privately created codes. Rather than
a substantive, meaningful legal distinction, Congress's and the OMB's
references to "standards" rather than "codes," in all likelihood reflects
the difference between federal and local lawmaking. Federal law, because
it does not govern the safety and building ordinances of states or municipalities,
generally addresses national standards instead of specific safety and
building requirements embodied in a code. In substance, though, technical
codes are "standards;" for purposes of today's decision, those terms are
synonymous. The majority's purported distinction between standards and
codes is far too narrow to decide the instant case on those grounds ----
it is a paradigmatic example of a distinction without a difference. The
same principles that apply to the analysis of privately created standards
apply to privately created codes ---- both deal with the protection afforded
to privately organized and authored collections of hyper-technical data
for use in a specialized segment of today's complex society that benefits
from uniformity in those data. This understanding is supported both by
appellate case law and evidenced by the standards-creating bodies filing
amicus briefs in support of SBCCI's position. See Practice Management,
121 F.3d at 518-19 ("As the AMA points out, invalidating its copyright
on the ground that the CPT entered the public domain when HCFA required
its use would expose copyrights on a wide range of privately authored
model codes, standards, and reference works to invalidation.") (emphasis
added); see also amicus filed by, inter alia, American National Standards
Institute in support of SBCCI.
|||*fn43 . OMB Circular A-119, 63 Fed. Reg. 8545, 8555 (Feb.
19, 1998)(emphasis added).
|||*fn44 . Id. at 8554: The use of such standards, whenever
practicable and appropriate is intended to achieve the following goals:
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. Provide incentives and opportunities to establish standards
that serve national needs. Encourage long-term growth for U.S. enterprises
and promote efficiency and economic competition through harmonization
[uniformity] of standards. Further the policy of reliance upon the private
sector to supply Government needs for goods and services. (emphasis added)
|||*fn45 . See County of Suffolk v. First American Real Estate
Solutions, 261 F.3d 179 (2d Cir. 2001) (developing a two-pronged economic
incentive/public need test to determine whether tax maps developed by
the County of Suffolk were in the public domain from inception and therefore
stripped of copyright protection; citing Practice Management and the panel
opinion in Veeck, deciding that, as a matter of law, the county's tax
maps were not in the public domain); Practice Management, 121 F.3d 516,
cert. denied, 522 U.S. 933, opinion amended by 133 F.3d 1140 (finding
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); CCC, 44 F.3d 61, cert. denied, 516 U.S. 817 (upholding
copyright of privately prepared listing of automobile values that states
required insurance companies to use); see also 1 Melville B. Nimmer &
David Nimmer, Nimmer on Copyright § 5.06[C], at 5-91 (2000) ("It is questionable
whether [the due process clause] justifies the denial of copyright to
a private person or group who produces such a model code.").
|||*fn46 . Approximately one-third, or $3 million, of SBCCI's
annual $9 million dollar revenue is generated by sales of model codes
to contractors and other interested parties. The remaining revenue is
mainly derived from the annual fees of voluntary members and member organizations.
Voluntary members include scholars, builders, contractors, and governmental
entities that have adopted the code.
|||*fn47 . Practice Management, 121 F.3d at 518 (quoting 1
Nimmer on Copyright § 5.06[C], at 5-92 (1996))(emphasis added).
|||*fn48 . County of Suffolk, 261 F.3d at 194.
|||*fn49 . We note here that the second prong of the County
of Suffolk test is no barrier. As stated above, although the codes are
necessary for a citizen to have proper notice of the building code regulations
of Anna and Savoy, no allegations have been made here to suggest that
Veeck was denied notice or access to the codes. We stress that the right
of unlimited republication is a far cry from the rights of access to and
notice of the law.
|||*fn50 . 17 U.S.C. § 102(b): In no case does copyright protection
for an original work of authorship extend to an 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. see also Feist Publications, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 349 (1991) ("[C]opyright law assures authors the right to
their original expression, but encourages others to build freely upon
the ideas and information conveyed by a work. This principle, known as
the idea/expression or fact/expression dichotomy, applies to all works
|||*fn51 . Mason v. Montgomery Data, Inc. 967 F.2d 135, 138
(5th Cir. 1992) ("Thus, while a copyright bars others from copying an
author's original expression of an idea, it does not bar them from using
the idea itself.") (emphasis in original)
|||*fn52 . Id. at 138: In some cases, however, it is so difficult
to distinguish between an idea and its expression that the two are said
to merge. Thus, when there is essentially only one way to express an idea,
"copying the 'expression' will not be barred, since protecting the 'expression'
in such circumstances would confer a monopoly of the 'idea' upon the copyright
owner free of the conditions and limitations imposed by the patent law."
|||*fn53 . Id. ("A court's decision whether to apply the merger
doctrine often depends on how it defines the author's idea. For this reason,
in defining the idea the courts should be guided by 'the balance between
competition and protection reflected in the patent and copyright laws.'")(citations
omitted); Peter Pan Fabrics, Inc. v. Martin Wiener Corp., 274 F.2d 487,
489 (2d Cir. 1960) (L. Hand, J.)(discussing what the court termed as "verbal
works," the court stated "[T]here can be no copyright in the 'ideas' disclosed
but only in their 'expression.' Obviously, no principle can be stated
as to when an imitator has gone beyond copying the 'idea,' and has borrowed
its 'expression.' Decisions must therefore inevitably be ad hoc."); see
also Nimmer on Copyright § 13.03[B][a] at 13-60 ("Merely stating the
rule [17 U.S.C. § 102(b)], however, does not make any easier the task
of drawing the line between where the idea ends and expression begins.").
|||*fn54 . Cf. Nimmer on Copyright § 1.10[B] at 1-78 ("On
the whole, therefore, it appears that the idea-expression line represents
an acceptable balance as between copyright and free speech interests")
(citing United Video, Inc. v. F.C.C., 890 F.2d 1173, 1191 (D.C. Cir. 1989)).
|||*fn55 . Nichols v. Universal Pictures Corp., 45 F.2d 119,
121 (2d Cir. 1930). Commentators and courts have labeled this as Judge
Hand's "abstractions test."
|||*fn56 . In doing so, I acknowledge that specific portions
and discrete facts within the code could be considered facts or ideas,
and therefore unprotectable.
|||*fn57 . See generally CCC, 44 F.3d at 68; Nimmer on Copyright
§ 13.03[B] at 13-68 - 13-73.
|||*fn58 . See supra note 37.
|||*fn59 . Another defense, implied license, was raised by
amicus curiae Association of American Physicians & Surgeons, Inc.,
but was not addressed by either party in the district court or on appeal.
Hence, I do not address it. See Christopher M. v. Corpus Christi Indep.
Sch. Dist., 933 F.2d 1285, 1292 (5th Cir. 1991).
|||*fn60 . 667 F.2d 102, 115-16 (D.C. Cir. 1981).
|||*fn61 . Veeck's fair use defense is discussed further infra.
|||*fn62 . DSC Communications Corp. v. DGI Techs., Inc., 81
F.3d 597, 601 (5th Cir. 1996) (quoting Lasercomb Am., Inc. v. Reynolds,
911 F.2d 970, 977 (4th Cir. 1990)).
|||*fn63 . Practice Management, 121 F.3d at 520.
|||*fn64 . See, e.g., Sherrod v. American Airlines, 132 F.3d
1112, 1119 n.5 (5th Cir. 1998).
|||*fn65 . See, e.g., Norma Ribbon & Trimming, Inc. v.
Little, 51 F.3d 45, 48 (5th Cir. 1995) ("Therefore, even if it be assumed
that the ribbon flowers were copyrightable, the Littles through inadequate
notice have made them part of the public domain, and Norma Ribbon was
free to copy them.").
|||*fn66 . See 17 U.S.C. § 107 (2000).
|||*fn67 . Id.; see also Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 577 (1994).
|||*fn68 . Sony Corp. v. Universal City Studios, 464 U.S. 417,
|||*fn69 . Campbell v. Acuff-Rose Music Inc., 510 U.S. at 579
(citations omitted) (internal quotations omitted).
|||*fn70 . In Campbell v. Acuff-Rose Music, while evaluating
a fair use defense, the Supreme Court discussed the degree to which a
parodist's work transforms a copyrighted original. See 510 U.S. at 579.
There, the parodist was the one making the transformation. In contrast,
Veeck admits that he did nothing more than copy SBCCI's model codes verbatim;
he did not transform them, through parody or otherwise. Therefore, Veeck's
argument that the adoption by reference of SBCCI's codes by Anna and Savoy
were "transformative" events does not find a home in Campbell.
|||*fn71 . 4 Nimmer on Copyright § 13.05[A][a] (citing Diamond
v. Am-Law Corp., 745 F.2d 142 (2d Cir. 1984)).
|||*fn72 . Id. (citing Campbell v. Acuff-Rose Music Inc., 510
U.S. at 586; Robinson v. Random House, Inc., 877 F.Supp. 830, 841 (S.D.N.Y.
|||*fn73 . Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104,
109 (2d Cir. 1998).
|||*fn74 . Campbell v. Acuff-Rose Music Inc., 510 U.S. at 590
(consideration of the fourth factor "requires the court to consider not
only the extent of the market harm caused by the particular actions of
the alleged infringer, but also 'whether unrestricted and wide-spread
conduct of the sort engaged in by the defendant ... would result in a
substantially adverse impact on the potential market' for the original.")
(quoting 4 Nimmer on Copyright § 13.05[A]).
|||*fn75 . Sony Corp., 464 U.S. at 451 (emphasis added).
|||*fn76 . At the pertinent time, 17 U.S.C.A. § 504(c)(1) set
the range of statutory damages for each act of copyright infringement
at no less than $500 or more than $20,000. A 1999 amendment has raised
those amounts to $750 and $30,000, respectively. Id.; Digital Theft Deterrence
and Copyright Damages Improvement Act of 1999, Pub. L. No. 106-160, §
2(1), 113 Stat. 1774 (1999).
|||*fn77 . Hogan Systems, Inc. v. Cybresource Int'l, Inc.,
158 F.3d 319, 325 (5th Cir. 1998) (applying abuse of discretion standard
of review to award of attorneys' fees in copyright case). Veeck did not
brief the questions of the district court's grant of a permanent injunction
or award of damages and attorneys' fees, and therefore waived them.
|||*fn78 . 628 F.3d 730.
|||*fn79 . Id. at 736.
|||*fn80 . Id.
|||*fn81 . See Practice Management, 628 F.3d 730; CCC, 44 F.3d
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