Veeck v. Southern Bldg. Code Congress Intern.

• Decision Date: 07 June 2002
• Docket Number: No. 99-40632.,99-40632.
• Citation: 293 F.3d 791
• Parties: 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

293 F.3d 791

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

No. 99-40632.

United States Court of Appeals, Fifth Circuit.

June 7, 2002.

Eric P. Weisberg (argued), Weisberg Law Office, Denison, TX, for Veeck.

Robert J. Veal (argued), Burr & Forman, Birmingham, AL, for Southern Building Code Congress Intern. Inc.

Alan S. Wernick, James Terrence Hultquist, Quarles & Brady, Chicago, IL, for Building Officials and Code Administrators Intern., Inc., International Code Council and Intern. Conference of Building Officials, Amici Curiae.

Michael Lowenberg, Patrick F. McGowan, Akin, Gump, Strauss, Hauer & Feld, Dallas, TX, Maureen B. Brodoff (argued), Quincy, MA, for American Medical Ass'n, American National Standards Institute, American Society of Heating, Refrigerating and Air-Conditioning Engineers, American Society of Mechanical Engineers National Fire Protection Ass'n, Texas Municipal League, Underwriters Laboratories Inc., American Society of Ass'n Executives, American Society of Civil Engineers, International Ass'n of Plumbing & Mechanical Officials and NSF Intern., Amici Curiae.

Malla Pollack (argued), Northern Illinois University, School of Law, DeKalb, IL, pro se.

Karen Bryant Tripp, Houston, TX, for Association of American Physicians & Surgeons, Inc. and Eagle Forum Education and Legal Defense Fund, Amici Curiae.

Andrew Layton Schlafly, Far Hills, NJ, for Eagle Forum Education and Legal Defense Fund, Amicus Curiae.

Scott T. Williams, Akin, Gump, Strauss, Hauer & Feld, Dallas, TX, for American Society of Civil Engineers, International Ass'n of Plumbing and Mechanical Officials and NSF Intern., Amici Curiae.

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

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.

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.

BACKGROUND¹

Peter Veeck individually operates "RegionalWeb" (), a non-commercial website that provides information about north Texas. Sometime in 1997, Veeck decided to post on RegionalWeb 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 RegionalWeb. 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.

DISCUSSION²

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, 8 L.Ed. 1055 (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."³ 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, 32 L.Ed. 425 (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, 8 L.Ed. 1055, 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...