February 21, 2003
Mr. Mark Pennak
U.S. Department of Justice
Civil Division, Appellate Staff
601 D Street, NW
Washington, DC 20530
Re: Veeck v. Southern Building Code Congress International, Inc., Docket No. 02-335
Dear Mr. Pennak:
The undersigned organizations support the Fifth Circuit's decision in Veeck v. SBCCI, 293 F.3d 791 (5th Cir. 2002), and urge the Department of Justice to recommend to the U.S. Supreme Court that it deny SBCCI's petition for a writ of certiorari. The Fifth Circuit's decision is correct as a matter of law and policy. Moreover, the policy arguments made by those supporting SBCCI's petition have no merit.
The Fifth Circuit correctly finds "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." 293 F.3d at 796. The fundamental policy underlying this legal conclusion is that citizens must have free access to the laws that bind them. Id. at 795. This fundamental policy is more compelling now than ever before. Government at all levels continually increases its regulation of the activities of citizens both at work and at home. Moreover, the Internet and other forms of technology, by integrating activities conducted at home with the outside world, are increasing the likelihood that private actions will be subject to legal rules governing the public sphere. Because their activities are more likely to be subject to regulation, citizens have a greater need to have easy access to the laws so that they can better understand their expanding legal obligations.
In the past, commercial publishers often had exclusive agreements with governments to publish judicial opinions and statutes, and the publishers initiated copyright actions against anyone who copied these materials without their authorization. Some courts found that the publishers had valid copyrights in the page numbers of the reporters. In recent years, however, many courts and other governmental bodies have embraced the Internet and made judicial opinions, regulations, and other government information publicly available on web-sites. Unfortunately, even the most technologically advanced courts have not placed older opinions on their web-sites, although these opinions are part of the law that "bind[s] every citizen." These older opinions (typically pre-1995) are available only from commercial publishers who have continued to limit public access, either by litigating aggressively against lower cost providers, or by refusing to license electronic copies to public libraries.
Moreover, commercial publishers have actively attempted to prevent government bodies from publishing legal materials and other government information on the Internet. They have lobbied both Congress and state legislatures to forbid government agencies from posting government information because the publishers believe that this posting might diminish their market. We do not know why the towns of Anna and Savoy, Texas, did not make their building code publicly available -- whether they did not have resources and sophistication to maintain a web-site, or whether the SBCCI pressured them not to post the codes. Either way, the root of this dispute is the towns' failure to perform what we perceive as a basic government function in the twenty-first century: providing citizens with free access to the laws. Fortunately, Peter Veeck stepped into the breach and published the building codes himself. In our view, Veeck performed a valuable public service for which we commend him.
SBCCI claims that the codes are its intellectual property. To be sure, SBCCI could have demanded a license fee from Anna and Savoy when those towns adopted the SBCCI code as their building code. But SBCCI did not request a license fee; to the contrary, it urged Anna and Savoy, as it has urged many other jurisdictions, to adopt the code. SBCCI made a gift of the code to Anna and Savoy and, by enacting it, Anna and Savoy converted the code into the unprotectable "fact" of their law.
SBCCI and its supporters argue that, if other publishers can copy their code, standards organizations will lose their incentive to develop standards and model laws. We endorse the Fifth Circuit's rebuttal to this argument. The Fifth Circuit quoted Professor Paul Goldstein's statement that:
...it is difficult to imagine an area of creative endeavor in which copyright incentive is less needed. 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.
293 F.3d at 806 (quoting 1 Goldstein § 2.5.2, at 2:51). The private sector spends literally billions of dollars each year lobbying legislative bodies. The notion that industry groups would stop drafting model laws that benefit them if they did not receive copyright revenues is, frankly, absurd. Certain groups might have to change their business models, but at the end of the day the private sector will find a way to fund model law drafting activities because they simply are too important to the affected industries.
Moreover, the Fifth Circuit points out that SBCCI and other organizations can continue to derive revenue by bundling the codes with value-added products, such as a commentary or lists of adopting jurisdictions. In fact, placing the building code in the public domain provides SBCCI with an incentive to create such value-added products.
Finally, the Fifth Circuit draws several important distinctions that limit the impact of the decision. First, the Fifth Circuit distinguishes between republication of the SBCCI model code as such and republication of the Anna and Savoy building codes. Second, the Fifth Circuit differentiates model codes from more general industry standards or fact works drafted with no intent of enactment. Third, the court distinguishes between model codes adopted as laws and extrinsic standards referred to by laws. These distinctions mean that the Veeck decision stands only for the proposition that the reproduction of an enacted model code is not a copyright infringement so long as the reproduction purports to be of the law and not the model code.
Given the narrowness of the holding, and given the importance of public access to the law, we urge the Department of Justice to recommend to the Supreme Court that it deny the petition for a writ of certiorari in this case. Please let us know if you have any questions.
Morrison & Foerster, LLP
2000 Pennsylvania Ave., NW
Washington, D.C. 20006
On behalf of:
American Association of Law Libraries
American Library Association
Association of Research Libraries
1399 New York Avenue
Washington, DC 20005