In order to maintain the economic value for a private organization to develop model codes, the governmental entity, when it adopts a model code, must bear the burden of removing all hindrances to unfettered public access to the law. GOVERNMENT AS PRIVATE PROFIT CENTER

With government budgets shrinking and contributions to private organizations shifting, government and private entities are looking for increased opportunities to generate revenue. Some have turned to existing laws and our courts to find these revenue sources. An example of this is the recent case decided by a divided panel of the United States Court of Appeals for the Fifth Circuit. In Veeck v. Southern Building Code Congress International, Inc., SBCCI, the developer of a model building code that was adopted into local law by several Texas towns, sought relief in federal court for the re-publication of its building code over the Internet by Peter Veeck. SBCCI argued that the upload constituted copyright infringement because the code did not enter the public domain simply by being adopted into local law.

SBCCI is a nonprofit organization that develops numerous model codes and encourages local governments to enact its codes into law by reference, without cost to the governmental entity. SBCCI asserts a copyright in its codes and maintains the exclusive right to publish or license the codes for re-publication, even after local governments have enacted them as law. SBCCI does permit local governments to copy the code upon request of a citizen upon payment of applicable copying charges. A copy may also be obtained directly from SBCCI for a charge, with nonmembers of the organization being charged almost double what members pay for the code.

Mr. Veeck operates a nonprofit website that posts information such as texts of local building codes adopted by North Texas towns. After adoption of the SBCCI’s code as law by several towns in North Texas, Mr. Veeck purchased an electronic version from SBCCI, complete with a software license agreement and copyright notice. Mr. Veeck then posted the code on his website, without permission from or attribution to SBCCI. SBCCI sent Mr. Veeck a cease and desist notice. Mr. Veeck responded by filing suit in federal district court seeking summary judgement that his postings did not constitute copyright infringement. SBCCI counterclaimed, alleging five counts of copyright infringement.

The Fifth Circuit panel upheld the lower court’s grant of summary judgment in favor of SBCCI, the permanent injunction precluding Mr. Veeck from posting the code, and awarded monetary damages to SBCCI. In its ruling, the Fifth Circuit found persuasive that the public had reasonable access to the code through traditional non-electronic means and that copyright was necessary to encourage private organizations to craft and update model codes. The Court was careful, however, to caution that its decision is limited to the narrow set of facts in this case and that under different circumstances the scales of justice may tip in favor of invalidating the copyright.

Fortunately, the current Fifth Circuit decision that effectively grants private ownership to public laws may be reversed. Last month, the Fifth Circuit Court of Appeals agreed to re-hear the case, en banc, with all 19 active judges deciding the case rather than just a panel of three. Hope remains that the entire court will give greater weight to the Constitutional principles threatened by the current ruling and recognize the local governments’ wrongdoing in passing "proprietary" laws.

By no means are we calling for the Fifth Circuit to throw the baby out with the bathwater. We strongly support current laws that afford works by private citizens and private associations the greatest level of protection granted under our copyright laws. When, however, copyrighted works are developed for the purpose of becoming law, either directly or through reference, the government adopting such should be responsible for paying applicable royalties, and should not be permitted, under the guise of copyright infringement claims, to push such payments upon its citizens. The Fifth Circuit should not weaken the copyright holder’s interest, but rather, should keep the obligation to pay any applicable royalty with the original "infringer" (the governmental entity).

Although the U.S. Constitution’s copyright clause does not expressly exclude government copyrighted works from its protection, section 105 of the Copyright Act of 1976 precludes such protection for works of the United States government. It is unsettled and controversial, however, whether a similar prohibition exists for works of state and local governments, or private entities that are either under contract with a governmental entity or whose work product is adopted thereby.

Some states have attempted to settle the debate by enunciating under state law the state’s position on copyright of its statutory codes, court reports and administrative regulations. The results could not be more unsettled and inconsistent. For example, Illinois expressly places its statutes in the public domain, while Virginia, at the other end of the spectrum, explicitly claims a copyright in the text of its statutes. Even though many states do, however, make legislative materials available over the Internet, they do so while maintaining that the online posting does not alter or relinquish any copyright or other proprietary interest.

Although numerous jurisdictions have been called upon to interpret state and federal laws governing copyright and statutes, judicial opinions and legislative materials, no clear consensus among the courts exists. The United States Supreme Court has opined on the limited facts of judicial opinions, ruling twice in 1888 that copyright laws do not protect opinions of either federal or state judges. Likely, the Supreme Court will be called upon again to decide the copyrightable nature of public documents, particularly if the Fifth Circuit reverses the holding in this case as conflicting appellate court decisions would exist.

Constitutional and public policy considerations weigh in favor of a reversal by the Fifth Circuit in the Veeck case. The Due Process Clause of the United States Constitution provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." This Due Process right mandates that citizens have notice of what a law requires. If our judicial system does not permit ignorance and rules that every citizen is presumed to "know the law," everyone should have unfettered access to the laws governing them, whether those laws are local, state or federal. Restricting public access to laws, either by precluding copying in printed or electronic form without the citizen having to seek permission and perhaps pay a royalty fee, constitutes a Due Process violation. The public must have easy access if the legal process is to function efficiently and fairly.

Public policy considerations also favor undisturbed access to laws. These laws are produced with public money. They should be subject to inspection and copying by everyone, not just those whose physical abilities permit them to visit the government office to obtain a copy or those whose financial means permit them to purchase the copyrightable material from the private entity or the government. Many people participate in the authorship of a statute, even more beyond those who put pen to paper. The laws belong to all who participate in the election process, pay taxes and must abide by the laws.

The Fifth Circuit should reverse the copyright afforded under the facts in Veeck on Constitutional and public policy grounds. No government should be allowed to hide behind the cloak of a private entity when it fails its citizens by passing laws that would cause an infringement. In order to maintain the economic value for a private organization to develop model codes, the governmental entity, when it adopts a model code, must bear the burden of removing all hindrances to unfettered public access to the law. When the Fifth Circuit decides this case en banc, we hope that the words of Judge Little’s dissent will ring clear: "[I]t is antithetical to our nation’s concept of public participation for a private entity to monopolize the public laws."

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