Can the Law be Copyrighted?

More than a decade ago I was startled to learn that question was being debated in a federal court in Texas. It was basically settled by the Supreme Court early in the Nineteenth Century, but here it was again.  The building codes of two small towns were posted in their entirety on a website that today we would call a news blog. The blogger’s motivation was that the codes were adopted as law by the towns, people had to comply, but if they wanted to read them the only real option was to buy an expensive copy from the standards developing organization (SDO) that did the difficult and intricate work to write them.

Many SDO’s are sizeable non-profits. They exist to write complex standards codes to protect public health, safety, and interoperability in everything from plumbing to elevators, and to get the codes adopted by governments at all levels. When adopted, their codes are law.                                                                                                                                                                                                                                                                       

One source of funds for SDO’s is selling copies of codes to the people required to comply with them. The sales rest on claiming the SDO owns a copyright for the code. So someone who gets a free copy of the law is an infringer. Wait, I have to pay for a copy of the law I must obey? Many SDO’s answered Yes.

The blogger in Texas thought that was wrong and fought back. I was part of an informal group of pro bono lawyers who exchanged thoughts with the lawyers of record for the blogger, and the Fifth Circuit Court of Appeals he was right. They confirmed

…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.

So now it was settled. Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791, 800 (5th Cir. 2002).

Or was it? I was startled again this week to learn the debate is still going. In testimony before the House Judiciary Committee’s Subcommittee on Courts, Intellectual property and the Internet, Carl Malamud, gave the details. He heads Public.Resource.Org. His statement is at https://public.resource.org/edicts/. His organization has been threatened by SDO’s and sued by states for posting the law in accessible, quality formats.

Mr. Malamud makes a compelling case on the law. But his organization doesn’t want to live under the threats of cease & desist letters or defend copyright infringement litigation so he advocates an amendment to the Copyright Act to end the subject once and for all.

The SDO’s rely on the sheer complexity and expense of their products to justify continued copyright protection after they are adopted as law. Copyright protection is provided, however, for “original works of authorship fixed in any tangible medium of expression” in eight categories of works. 17 USC §102 (a). There are no complexity or expense requirements to be eligible for copyright protection. Songs written on a scrap of paper at lunch can be worth millions and protected to the fullest extent our system allows.

Mr. Malamud’s statement is lengthy and detailed. A shorter statement to the same Subcommittee was presented on behalf of American National Standards Institute (ANSI), one of our most important SDO’s, by Patricia Griffin, Vice President and General Counsel. She contends that without sales and licensing revenue, many SDO’s could not continue their important work. Mr. Malamud contended the SDO’s were doing well financially and could get by without that revenue stream. I don’t see how the public can evaluate the conflicting views on revenue needs. Her statement is available at http://publicaa.ansi.org/sites/apdl/Documents/News%20and%20Publications/Speeches/ANSI_WrittenTestimony%20_HouseJudiciary_IBR_011414%20FINAL.pdf

It is easier to evaluate the judicial decisions and legal arguments on copyright protection after adoption as law. Mr. Malamud goes through the judicial history which ends at the appellate level with Veeck. Ms. Griffin doesn’t discuss caselaw, but her statement incorporates a previous ANSI paper entitled “Why Voluntary Consensus Standards Incorporated by Reference into Federal Government Regulations Are Copyright Protected.” In response to the Veeck decision, the paper incorporates by reference the friend of the court brief ANSI filed. The Fifth Circuit majority did not adopt it, and the Supreme Court declined to review their decision.

The work of SDO’s is needed at every level of government. Access to the law you must obey is needed by everyone. Perhaps Mr. Malamud’s amendment proposal should be adopted but its implementation delayed for a reasonable period to permit SDO’s to adjust. Other approaches might accomplish what is needed, but litigating may come to be seen as an attempt to sweep back the ocean. It is hard to imagine a future where immediate online access is not available for everything that rises to the level of “the law.”

 

 

 

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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