AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 145

Amicus Brief by INTERNATIONAL CODE COUNCIL, INC. (Onorato, Anthony) Modified on 1/12/2016 (DJS).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a ASTM
INTERNATIONAL,
NATIONAL FIRE PROTECTION
ASSOCIATION, Inc.,

Civil Action No. 1:13-cv-01215-TSC

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND
AIRCONDITIONING ENGINEERS, INC,,
v.

Plaintiffs,

PUBLIC.RESOURCE.ORG, INC.,
Defendant.

Brief of Amicus Curiae International Code Council, Inc.,
In Support of Plaintiffs’ Motion For Summary Judgment

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................... 2
I.

STATEMENT PURSUANT TO LCvR 7(o) ....................................................................... 3
A.

Corporate Disclosure Statement. .................................................................................. 3

B.

Statement of Amicus Curiae.......................................................................................... 3

1.

Identity of amicus curiae: ............................................................................................. 3

2.

Interest of amicus curiae: ............................................................................................. 3

3.

Source of authority to file and authorship. ................................................................... 4

II. ARGUMENT ......................................................................................................................... 5
A.
ICC Performs A Valuable Public Service By Developing and Publishing The ICodes Through A Public-Private Partnership ....................................................................... 5
B.
Without Copyright Protection, ICC Would Be Denied The Revenue That Permits
It To Operate In The Public Interest ...................................................................................... 6
C.
Works Do Not Lose Copyright Protection When Merely Incorporated By
Reference Into Law .................................................................................................................. 8
TABLE OF AUTHORITIES
Cases
Building Officials & Code Adm. v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980) ............ 9
CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994), cert.
denied 516 U.S. 817, 116 S. Ct. 72, 133 L. Ed. 2d 32, 64 U.S.L.W. 3240 (1995) ..................... 9
Nielsen Co. (US), LLC v. Truck Ads, LLC, No. 08 C 6446, 2011 U.S. Dist. LEXIS 96412
(N.D. Ill. Aug. 29, 2011) ........................................................................................................... 10
Practice Mgmt. Info. Corp. v. Am. Med. Ass’n, 121 F.3d 516 (9th Cir. 1997), cert. denied
522 U.S. 933, 118 S. Ct. 339, 139 L. Ed. 2d 263, 66 U.S.L.W. 3296 (1997)............................. 9
Statutes
Ohio Building Code & Amendments in the Ohio Administrative Code (§4101:1-1-01
Administration, §101.1 “Title”) .................................................................................................. 8
Other Authorities
Exec. Office of the President, OMB Circular No. A-119, Federal Participation in the
Development and Use of Voluntary Consensus Standards and in Conformity Assessment
Activities, 63 Fed. Reg. 8546, 8549 (Feb. 19, 1998) .................................................................. 7

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I.

STATEMENT PURSUANT TO LCvR 7(o)
A. Corporate Disclosure Statement.
Amicus International Code Council, Inc.’s Corporate Disclosure Statements is included

with its Unopposed Motion For Leave To File Amicus Curiae Brief In Support Of Plaintiffs’
Motion For Summary Judgment (DE 136).
B. Statement of Amicus Curiae.
1. Identity of amicus curiae:
Amicus is the International Code Council, Inc.
2. Interest of amicus curiae:
The International Code Council, Inc. (“ICC”) is dedicated to developing model codes and
standards used in the design, build, and compliance process to construct safe, sustainable,
affordable, and resilient structures. ICC seeks to protect health, safety and welfare by creating
safe buildings and communities. ICC’s mission is to provide the highest quality codes,
standards, products, and services for all concerned with the safety and performance of the built
environment.
ICC develops and publishes the International Codes®, which are also known as the ICodes® (the “I-Codes”). The I-Codes provide minimum safeguards for people at home, at
school, and in the workplace. The I-Codes are a complete set of comprehensive, coordinated
building safety and fire prevention codes. The I-Codes include the following publications: the
International Building Code, the International Energy Conservation Code, the International
Existing Building Code, the International Fire Code, the International Fuel Gas Code, the
International Green Construction Code, the International Mechanical Code, the ICC Performance
Code, the International Plumbing Code, the International Private Sewage Disposal Code, the
International Property Maintenance Code, the International Residential Code, the International
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Swimming Pool and Spa Code, the International Wildland-Urban Interface Code, and the
International Zoning Code.
By developing and publishing I-Codes, ICC benefits public safety and supports the
building industry’s need for one set of codes without regional limitations. All fifty states and the
District of Columbia have adopted I-Codes at the state or local level. Puerto Rico and the U.S.
Virgin Islands also enforce one or more of the I-Codes. Additionally, federal agencies, including
the Architect of the Capitol, General Services Administration, National Park Service,
Department of State, U.S. Forest Service, and the Veterans Administration enforce the I-Codes.
The Department of Defense references the International Building Code® for constructing
military facilities, including those that house U.S. troops around the world and at home. Amtrak
uses the International Green Construction Code® for new and extensively renovated sites and
structures.
ICC has a strong interest in ensuring that it retains the copyrights to the codes that it
develops and publishes. Like any copyright owner who earns their living by creating
copyrighted works, ICC must be able to receive revenue from the I-Codes in order to sustain its
operations.
3. Source of authority to file and authorship.
ICC files this brief pursuant to leave granted by this Court. See, Minute Order dated
January 10, 2016. This brief was authored by counsel for ICC.

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II.

ARGUMENT
The careful development of codes and standards for the built environment is

exceptionally important to public health and safety. Because ICC recognizes the need for access
to its codes, and for laws to be available to the public, all ICC codes and ICC standards, along
with the laws of many jurisdictions, are made available on ICC’s website for free in a nondownloadable form: ICC public Access, available at http://codes.iccsafe.org/.
ICC relies on sales of print and electronic copies of its copyrighted codes and standards
to finance code updates and the development of future codes and standards. Without regard for
the serious public health and safety consequences that would ensue, Public.Resource.Org
requests that this Court strip referenced codes and standards of their copyright protection. This
Court should deny that request.
A.

ICC Performs A Valuable Public Service By Developing and Publishing The
I-Codes Through A Public-Private Partnership

ICC is a standards development organization (“SDO”) that works through a publicprivate partnership to develop cutting edge, comprehensive codes and standards. This is a
massive and ongoing undertaking.
ICC uses a process for code development that emphasizes openness and inclusivity. ICC
works through open public hearings and committee meetings to develop its codes. In order to
benefit from the widest range of public views and informed opinion, ICC’s code development
process is open to the public. Anyone may comment on ICC’s proposed codes, and anyone may
submit a proposed code change.
ICC developed its cdpACCESS online code development portal to increase participation
in code development by an even broader community. This cloud-based system allows
participants to create and store code change proposals and public comments online. The system

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also facilitates online voting by eligible individuals. Both in-person and online public
participation are key to ICC’s mission.
All members of the public may participate in ICC’s code development process at no cost.
In ICC’s view, no one should be precluded by prohibitive fees or costs from sharing their
concerns or presenting new ideas in the code development process. Code development is for the
good of all members of our communities, and each community member is entitled to benefit
from their neighbors’ insights. By permitting the public to participate at no cost, ICC furthers
public safety.
ICC also values transparency and balanced interests. Because each code addresses
technical and complex issues, ICC relies on focused, skilled committees to consider the
testimony presented at the hearing and act on code change proposals. Public safety officials
comprise at least one-third of each committee. Other committee members may represent general
interests, user interests, producer interests, or multiple interests. No committee member may
vote on an issue as to which he or she has a conflict of interest. ICC’s committee members
consider each proposal carefully. All final decisions are made in open hearings by public safety
officials only.
In addition, ICC values due process. Individuals may advocate or oppose code change
proposals. Individuals advocating for or against a change have an opportunity to rebut opposing
views. Anyone in attendance may testify during ICC’s open hearings. ICC holds assemblies
where anyone may challenge or support committee action. Further, anyone may appeal an action
or inaction of a code committee, and ICC renders its decision on appeal based on whether due
process was served.
B.

Without Copyright Protection, ICC Would Be Denied The Revenue That
Permits It To Operate In The Public Interest

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Although the public is encouraged to participate in the code development process, and
permitted to do so at no cost to participants, the code development process is far from free. This
openness adds to ICC’s costs of producing its codes.
In addition to customary expenses for employee salaries and benefits, overhead expenses
for office space and technology, and legal expenses, ICC faces unique expenses as it works in the
public interest. For example, ICC’s next annual conference will run from October 16–18, 2016,
and will be followed by public comment hearings from October 19-25, 2016. Thus, in October
2016, ICC will conduct public meetings for ten days. ICC must lease space and incur significant
administrative costs in order to provide such forums for code development. Similarly, ICC
incurs significant administrative and personnel costs hosting committee meetings and hearings,
and in compiling the codes that it develops.
ICC finances its operation by selling its copyrighted 1 codes and standards. Were ICC’s
codes to be stripped of their copyrights by mere reference in an enactment of a state or
municipality, ICC’s economic viability would be placed at serious risk. Without ICC and other
standards development organizations, governments would be forced to shoulder the expensive
and resource intensive burden of code development. See, Exec. Office of the President, OMB
Circular No. A-119, Federal Participation in the Development and Use of Voluntary Consensus
Standards and in Conformity Assessment Activities, 63 Fed. Reg. 8546, 8549 (Feb. 19, 1998).
Furthermore, without standards development organizations, building codes likely would lack
uniformity, to the detriment of public health and safety. 2
Public.Resource.Org implores this Court to elevate unfettered copying of merely

ICC registers its copyrights with the U.S. Copyright Office and has received Certificates of Registration from the
U.S. Copyright Office for the I-Codes.

1

Some examples are mentioned in the Complaint in paragraphs 16 – 19. See, also, “The 1904 Fire and the
Baltimore Standard” at http://tinyurl.com/1904BaltimoreFire.

2

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referenced code language above all other interests, but this Court should decline that invitation.
As abovementioned, ICC’s codes already are publicly available for viewing through ICC’s
online library in non-downloadable form. Furthermore, although Public.Resource.Org asserts
that it is providing free access to the law, in many states, the law constitutes an adopted model
code, along with state amendments to that code. Generally, Public.Resource.Org has posted the
model code language adopted by the state, absent the state amendments. For example, the State
of Ohio has adopted 3 the International Building Code® as its base model code, and then
amended that language. Public.Resource.Org has posted only the copyrighted model code on its
website. 4 Thus, Public.Resource.Org is misappropriating ICC’s copyrighted material and is not
providing an accurate representation of state law. 5
As said, ICC’s codes have been adopted in all fifty states and the District of Columbia
and are relied upon by federal agencies. Because ICC’s codes provide standards for the built
environment, ICC’s codes protect Americans around the country every day. The revenue ICC
receives from selling the copyrighted material it develops permits ICC to work in the public
interest. Respectfully, it is vitally important to public health and safety that this Court deny
Public.Resource.Org’s request.
C.

Works Do Not Lose Copyright Protection When Merely Incorporated By
Reference Into Law

See, Ohio Building Code & Amendments in the Ohio Administrative Code (§4101:1-1-01 Administration, §101.1
“Title”) at http://www.com.ohio.gov/documents/dic_bbst_entireOBCJuly2011.pdf at page 1, paragraph 1.
4
See, Defendant’s postings of the ICC’s IBC in Ohio at: https://law.resource.org/pub/us/code/ibr/icc.ibc.2009.pdf
and https://law.resource.org/pub/us/code/ibr/icc.ibc.2009.html.
5
See, https://law.resource.org/pub/us/code/safety.html. The “disclaimer” in large font at the top of defendant’s page
states “ATTENTION! Always Check With Your Authority For Additions, Deletions, and Errata!” And, at the
bottom of that page, it states “Last Updated: March 12, 2014” (last checked on January 10, 2016). Thus, Defendant
acknowledges that what it is copying and distributing as “the law” may not in fact be the current law as represented
by Defendant.
3

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In asking this Court to uphold the copyright protection afforded to codes incorporated by
reference into the law, the Plaintiffs in this action are asking this Court to follow well-established
law. 6 The Second and Ninth Circuits, as well as the Northern District of Illinois, uniformly have
concluded that that incorporation by reference in state or local laws or regulations does not strip
a work of its copyright protection. See, CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports,
Inc., 44 F.3d 61 (2d Cir. 1994), cert. denied 516 U.S. 817 (1995) (“We are not prepared to hold
that a state’s reference to a copyrighted work as a legal standard for valuation results in loss of
the copyright.”) (upholding copyright protection for works incorporated by reference); Practice
Mgmt. Info. Corp. v. Am. Med. Ass’n, 121 F.3d 516 (9th Cir. 1997), cert. denied 522 U.S. 933
(1997) (affirming enforcement of copyright in work referenced in regulation). 7
As the Ninth Circuit recognized, independent code writers depend on copyright
protection to incentivize − indeed, to make feasible − the creation and maintenance of codes.
See, Practice Mgmt. Info. Corp., 121 F.3d at 518-20 (“Nonprofit organizations that develop these
model codes and standards warn they will be unable to continue to do so if the codes and
standards enter the public domain when adopted by a public agency.”). Additionally, as the
Second Circuit has recognized, to hold that “a state’s reference to a copyrighted work… results

Even the Fifth Circuit in Veeck v. S. Bldg. Code Congress International, 293 F.3d 791, 805 (5th Cir. 2002) − an
opinion which ICC considers otherwise wrongly decided − concluded that “copyrighted works do not ‘become law’
merely because a statute refers to them.” (Emphasis added.)
7
Indeed, Building Officials and Code Adm. v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980) (which Veeck
and others in fact rely heavily on) merely vacated a preliminary injunction granted by the district court based on the
lower court’s assumption that the state’s adoption of the model code did not place the code into the public domain.
Importantly, the First Circuit did not invalidate BOCA’s copyright rights. Rather, the First Circuit remanded the
case for further development of the competing policy considerations at stake. Building Officials, 628 F.2d at 736.
On remand the Order of Dismissal by the U.S. District Court in Building Officials and Code Adm. v. Code
Technology, Inc., recognized the copyright rights of plaintiff, Building Officials and Code Adm. (“BOCA”) where
the Order of Dismissal states “The Defendant [Code Technology, Inc.] acknowledges the validity of Plaintiff’s
copyright in suit and infringement thereof by the publishing, printing, vending, distributing and copying heretofore
of Defendant’s Massachusetts State Building Code based on Plaintiff’s Basic Building Code/1978.”
6

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in loss of copyright” “would raise very substantial problems under the Takings Clause of the
Constitution.” CCC Info. Servs., Inc., 44 F.3d at 74.
More recently, the Northern District of Illinois has upheld copyright protection for maps
referenced by the Federal Communication Commission. Nielsen Co. (US), LLC v. Truck Ads,
LLC, No. 08 C 6446, 2011 U.S. Dist. LEXIS 96412, at *42 (N.D. Ill. Aug. 29, 2011). The court
concluded the FCC’s reference to the maps “suggest[s] that the maps have value and apparently
cannot be replicated without effort or cost by that agency.” Id. Further, the court concluded that
“[t]he FCC would presumably not welcome the conclusion that its use of the maps destroys [the]
incentive to produce them.” Id.
Likewise, jurisdictions and federal agencies that reference the I-Codes could not replicate
the codes − let alone develop substantially identical codes across jurisdictions − without
significant “effort or cost,” if at all. They “would presumably not welcome the conclusion” that
their references to the I-Codes destroy the very copyright that incentivizes and permits their
development and publication. Id. This Court should deny Public.Resource.Org’s cross-motion
for summary judgment and enter judgment for the Plaintiffs.

DATED: January 11, 2016

Respectfully submitted,
/s/ Alan S. Wernick
Alan S. Wernick (D.C. Bar: 410058)
(Admitted Pro Hac Vice)
FISHERBROYLES LLP
203 North LaSalle Street, Suite 2100
Chicago, IL 60601
[e-mail]
Telephone: [phone]
Facsimile: [phone]

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Anthony A. Onorato (D.D.C. Bar #482074)
FISHERBROYLES LLP
445 Park Avenue, Ninth Floor
New York, NY 10022
[e-mail]
Telephone: [phone]
Facsimile: [phone]
Attorneys of Record for
International Code Council, Inc.

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CERTIFICATE OF SERVICE
I certify that on January 11, 2016, I caused a true and correct copy of the foregoing Brief
of Amicus Curiae International Code Council, Inc., In Support of Plaintiffs’ Motion For
Summary Judgment to be served on all parties of record via the Court’s CM/ECF system.

/s/ Anthony Onorato______
Anthony A. Onorato

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