Veeck v. Southern Building Code Congress Int'l, 99-40632

• Decision Date: 02 February 2001
• Docket Number: No. 99-40632,99-40632
• Citation: 241 F.3d 398
• Parties: (5th Cir. 2001) PETER VEECK, doing business as RegionalWeb, Plaintiff-Counter Defendant-Appellant, v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL INC., Defendant-Counter Claimant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 398

241 F.3d 398 (5th Cir. 2001)

PETER VEECK, doing business as RegionalWeb, Plaintiff-Counter Defendant-Appellant, v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL INC., Defendant-Counter Claimant-Appellee.

No. 99-40632

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 2, 2001

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Eastern District of Texas.

Before WIENER and STEWART, Circuit Judges, and LITTLE, District Judge.^*

WIENER, Circuit Judge:

Plaintiff-Appellant Peter Veeck ("Veeck") appeals from a summary judgment of the district court holding that he infringed the copyright of Defendant-Appellee Southern Building Code Congress International ("SBCCI") when he posted SBCCI's copyrighted model codes on the Internet without SBCCI's permission. Agreeing with the district court, we affirm.

I. FACTS AND PROCEEDINGS

SBCCI is a nonprofit organization that develops, promotes, and promulgates 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 governments to enact its codes into law by reference, without cost to the governmental entity. 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. Once a governmental unit enacts such a code into law, copies are to be made available for inspection by the public in the enacting government's offices. Members of the public may make or obtain copies of portions of the SBCCI codes from city offices or local libraries or may purchase copies of the codes directly from SBCCI and from some bookstores as well. Although SBCCI is a nonprofit organization, it uses revenue from sales of its model codes to fund its continuing activities. Non-members are charged more for copies of SBCCI's model codes than are members of the organization. For example, members are charged $48 for a copy of SBCCI's 1994 standard building code, for which nonmembers are charged $72.

Veeck operates a nonprofit web site, known as RegionalWeb, which provides information about North Texas, including texts of local building codes. Several towns in North Texas have adopted SBCCI's codes, including the towns of Anna and Savoy. Veeck attempted to obtain a copy of the building codes of his hometown of Denison, Texas, after learning that Denison had adopted SBCCI's model code as its own. Failing to locate Denison's building code at local bookstores or libraries, Veeck ordered from SBCCI copies of its codes in electronic format.¹ 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 cities he visited.² He apparently never attempted to view or copy the SBCCI codes in any city clerk's or other municipal office.

The package containing the computer disks that SBCCI sent to Veeck included a software license agreement and copyright notice. In disregard of these data, Veeck installed the codes on his personal computer and, by "cutting and pasting," was able to put the entire codes on his web site. Veeck's web site did not specify that the codes were written by SBCCI, instead simply identifying them as the building codes of Anna and Savoy, Texas.

When it learned that Veeck had posted copies of its codes on his web site, SBCCI sent him a cease and desist order, accusing him of infringing its copyrights. Veeck responded by filing this declaratory judgment action in an effort to have the district court rule that he did not violate the Copyright Act. SBCCI counterclaimed, asserting five counts of copyright infringement, as well as unfair competition and breach of contract. Both parties moved for summary judgment on the copyright infringement issue.

In the absence of genuinely disputed material facts, the district court granted summary judgment in favor of SBCCI, holding that it held valid, enforceable copyrights and rejecting Veeck's defenses of fair use, copyright misuse, waiver, merger, and due process. The district court found five separate instances of copyright infringement ---- one for each separate model code that Veeck published on his web site ---- and granted a permanent injunction and monetary damages to SBCCI. Veeck appealed.³

II. ANALYSIS

A. Standard of Review

This case is on appeal from a grant of summary judgment, dismissing Veeck's declaratory judgment action and granting SBCCI's requested copyright infringement relief. We therefore review the record de novo, applying the same standard as the district court.⁴ A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact.⁵

A fact issue is material if its resolution could affect the outcome of the action.⁶ A dispute about a material fact is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party.⁷ In deciding whether such an issue has been created, we must view the facts and the inferences to be drawn from them in the light most favorable to the nonmoving party ---- here, Veeck.⁸

The standard for summary judgment mirrors that for judgment as a matter of law.⁹ Thus, the court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence.¹⁰ In its review, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and give credence to the evidence favoring the nonmoving party as well as to the evidence supporting the moving party that is uncontradicted and unimpeached.¹¹

B. Copyright Infringement

The core purpose of copyright law is "to secure a fair return for an author's creative labor" and thereby "to stimulate artistic creativity for the general public good."¹² To establish copyright infringement, the plaintiff must prove a valid copyright and copying by the defendant of constituent elements of the work that are original.¹³ Here, there is no question that SBCCI holds valid copyrights to the building codes and that Veeck copied the codes by placing them on the Internet. Veeck seeks to circumvent SBCCI's copyright protection, however, under various doctrines that serve as defenses to copyright infringement or otherwise limit copyright holders' exclusive use of their creations.

Veeck contends that once SBCCI's model codes are enacted into public law they lose their copyright protection under principles of due process, freedom of speech, and the affirmative defenses of merger, misuse, waiver, and fair use that are peculiar to copyright law. The instant case is one of first impression in this circuit, but three other circuit courts have examined the issue of enforcement of copyrights in the context of privately developed codes or compilations that had been enacted, in some form, into public law.¹⁴Although the First Circuit expressed serious doubt that a privately authored building code adopted by the state of Massachusetts could be distinguished from uncopyrightable statutes and judicial opinions,¹⁵ neither that court nor the other two circuit courts that have subsequently addressed the issue have held that codes lose their copyright protection when used or adopted by a state or local government. We decline to create a circuit split by reaching the opposite conclusion today.¹⁶

C. Defenses

1. Due Process/Public Domain

According to Veeck, the public's due process interest in free access to the building codes extinguishes SBCCI's copyright because the codes enter the public domain when they are enacted into law. At the outset, we note that although Veeck struggles mightily to raise a fact issue as to whether he was denied access to the codes, we agree with the district court that there is no probative evidence that the codes are not publicly available in North Texas towns. Leaving aside the issues of the codes' availability in bookstores, public libraries, and directly from SBCCI, we shall assume that due process requires at a minimum that the codes should be available for inspection and copying at the city offices in towns where they have been adopted by reference. Veeck has fallen short in his efforts to raise a genuine fact issue regarding such availability of the codes in Anna and Savoy.¹⁷

Inasmuch as there are no facts showing that Veeck was actually prevented or substantially hindered from viewing the public law, Veeck's claim poses the legal question whether a private entity that develops a code may maintain copyright in it once that code is adopted in globo as law. Not all reproductions of copyrighted work are "within the exclusive domain of the copyright owner; some are in the public domain."¹⁸ Due process requires that the public have notice of what the law is so that the people may comply with its mandates.¹⁹ Thus the question is whether, once adopted into law, SBCCI's codes fall outside its exclusive domain and into the public domain by virtue of the requirements of due process.²⁰

The First Circuit aptly described the quandary that we face today when it explained that even though the law is well established that "judicial opinions and statutes are in the public domain and are not subject to copyright," the question remains "whether this principle likewise covers state-promulgated administrative regulations which are modelled on a privately developed code that was copyrighted by the service-oriented organization responsible for its creation and updating."²¹ In other words,

The rule denying copyright to judicial opinions and legislative enactments was completely settled by the end of the nineteenth century. With the emergence of the regulatory state in the twentieth century, and the proliferation of administrative regulations, two new questions arose for copyright...