AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 70

LARGE ADDITIONAL ATTACHMENT(S) Index of Consolidated Exhibits In Support of Public.Resource.Org's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction by PUBLIC.RESOURCE.ORG, INC. #69 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Exhibit 1, #2 Exhibit 2 [Sealed], #3 Exhibit 3 [Sealed], #4 Exhibit 4 [Sealed], #5 Exhibit 5 [Sealed], #6 Exhibit 6 [Sealed], #7 Exhibit 7, #8 Exhibit 8 [Sealed], #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11 [Sealed], #12 Exhibit 12 [Sealed], #13 Exhibit 13 [Sealed], #14 Exhibit 14 [Sealed], #15 Exhibit 15 [Sealed], #16 Exhibit 17 [Sealed], #17 Exhibit 18 [Sealed], #18 Exhibit 19 [Sealed], #19 Exhibit 20 [Sealed], #20 Exhibit 21 [Sealed], #21 Exhibit 22 [Sealed], #22 Exhibit 23 [Sealed], #23 Exhibit 24 [Sealed], #24 Exhibit 25 [Sealed], #25 Exhibit 26 [Sealed], #26 Exhibit 27 [Sealed], #27 Exhibit 28 [Sealed], #28 Exhibit 29 [Sealed], #29 Exhibit 30 [Sealed], #30 Exhibit 31, #31 Exhibit 32 [Sealed], #32 Exhibit 33 [Sealed], #33 Exhibit 34 [Sealed], #34 Exhibit 35, #35 Exhibit 36, #36 Exhibit 37, #37 Exhibit 38 [Sealed], #38 Exhibit 39, #39 Exhibit 40, #40 Exhibit 41 [Sealed], #41 Exhibit 42 [Sealed], #42 Exhibit 43 [Sealed], #43 Exhibit 44, #44 Exhibit 45, #45 Exhibit 46, #46 Exhibit 47, #47 Exhibit 48, #48 Exhibit 49, #49 Exhibit 50 [Sealed], #50 Exhibit 51, #51 Exhibit 52, #52 Exhibit 53, #53 Exhibit 54, #54 Exhibit 55, #55 Exhibit 56, #56 Exhibit 57, #57 Exhibit 58, #58 Exhibit 59, #59 Exhibit 60, #60 Exhibit 61, #61 Exhibit 62, #62 Exhibit 63, #63 Exhibit 64 [Sealed], #64 Exhibit 65, #65 Exhibit 66, #66 Exhibit 67, #67 Exhibit 68, #68 Exhibit 69, #69 Exhibit 70, #70 Exhibit 71, #71 Exhibit 72, #72 Exhibit 73, #73 Exhibit 74)(Bridges, Andrew)

EXHIBIT 74

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. BRIEF OF AMICUS CURIAE STATils OF OHIO AND
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TEN OTHER STATES AND TERRITORIES SUPPORTING
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ELISE W. PORTER
MARTIN D. SUSEC
Assistant Attorneys General
Chief Counsel's Staff . ·
30 East Broad Street, i 7th Fl.
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(614) 728c7592 FAX
Attorneys for Amici States·

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LIST OF ATTORNEYS GENERAL SIGNING ON TO THIS BRIEF

BRUCE M. BOTELHO
Attorney General
State of Alaska

ANABELLE RODRIGUEZ
Attorney General
Commonwealth of Puerto Rico

ROBERT A. BUTTERWORTH
Attorney General
State of Florida

PAUL SUMMERS
Attorney General
State of Tennessee

CARLA J. STOVALL
Attorney General
State of Kansas

JOHN CORNYN
Attorney General
State of Texas .

MIKE HATCH
Attorney General
State of Minnesota

MARK SHURTLEFF
Attorney General
State of Utah

MIKE MCGRATH
Attorney General
State of Montana

DARRELL V. MCGRAW, JR.
Attorney General
State of West Virginia

----·~----

STATEMENT REGARDING ORAL ARGUMENT

Amici State of Ohio and ten other States and territories have
moved the Court for 10 additional minutes of argument time.

In

the alternative, the States have requested to share 10 minutes of
the time already reserved for the parties. The amici States have not
received any opposition to this request.

1

TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT ................................. i
TABLE OF AUTHORITIES .............................................................. iv
INTEREST OF THE AMICI .............................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT .......................... 2
STATEMENT OF THE FACTS AND OF THE CASE .......................... 7
LAW AND ARGUMENT ................................................................. 10
A.

The Dictates of Due Process Are Inconsistent With a
Private Party Holding a Copyright in the Text of a Law ..... 10
1. Due Process Requires That the Text of the Law be Freely
Available to All Citizens .................................................... 10
2. The Complete Monopoly of Access Makes a Copyright in
the Text of a Law Incompatible with Due Process ............. 14
3. The Primary Purpose of Copyright Law is not to Provide
a Benefit to Authors, But to Provide the Public With
Access to Authors' Works ................................................. 16
4. The Constitutional Due Process Rights of Citizens Far
Outweigh any Public Interests in Copyright ...................... 18

B.

A Long-Standing Body of Case Law Supports the
Incompatibility of Copyright In, and Access To, the Text
of the Law ........................................................................ 20
1. The Supreme Court and Other Courts Have
Consistently Held that There Can Be No Copyright in
the Text of Judicial and Statutory Law ............................. 20

11

Page

2. The Text of the Law is Public Because of its Nature as
the Law, Not Because of the Nature or Employment of
the Author. ....................................................................... 24
3. Cases Cited by SBCCI Are Easily Distinguishable and
To the Extent They Are Not, Should Be Disregarded ......... 27
C.

SBCCI and Similar Organizations Have Waived any
Copyright by Actively Lobbying Government to Adopt
Their Codes ...................................................................... 31

CONCLUSION .............................................................................. 32
CERTIFICATE OF SERVICE .......................................................... 33
CERTIFICATE OF COMPLIANCE .................................................. 35

l1l

TABLE OF AUTHORITIES
Pages
Cases

Anderson National Bank v. Luckett,
321 U.S. 233 (1944) .................................................................. 12
Banks v. Manchester,
128 U.S. 244 (1888) ........................................................ 4, 21, 24
Building Officials Code Adm. v. Code Technology, Inc.,
628 F.2d 730 (1st Cir. 1980) ............................................... passim
Callaghan v. Myers,
128 U.S. 547 (1888) .................................................... 4, 5, 21, 24
CCC Information Services, Inc. v.
Maclean Hunter Market Reports,
44 F.3d 61 (2nd Cir. 1994) ............ : ..................................... passim
Chicago v. Morales,
527 U.S. 41 (1999) .................................................................... 11
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) .................................................................. 12
Connecticut v. Gould,
34 F. 319 (N.D. N.Y. 1888) .................................................. 22, 24
County of Suffolk New York v.
First American Real Estate Solutions,
261 F. 179, 2001 U.S. App. LEXIS 16706 (2nd Cir. 2001) 5, 25, 29
Davidson v. Wheelock,
27 F. 61 (D. Minn. 1866) .......................................................... 21
Du Puy v. Post Telegram Co.,
210 F. 883 (3rd Cir. 1914) ......................................................... 25

IV

Pages

Feist Publications, Inc. v. Rural Telephone Service, Co.,
499 U.S. 340 (1991) .................................................................. 26
Fox Film Corp. v. Doyal,
286 U.S. 123 (1932) ........................................................ 2, 14, 17
Gen. Elec. v. EPA,
53 F.3d 1324 (D.C. Cir 1995) .................................................... 11
Giaccio v. Pennsylvania,
382 U.S. 399 (1966) ............................................................ 10, 11
Gould v. Banks,
53 Conn. 415 (1886) ................................................................. 22
Hildreth v. Iowa Dep't of Human Servs.,
550 N.W.2d 157 (Iowa 1996) ..................................................... 12
Howell v. Miller,
91 F. 129 (6th Cir. 1898) ........................................................... 22
Lambert v. California,
355 U.S. 225 (1957) .................................................................. 13
McBoyle v. United States,
283 U.S. 25 (1931) .................................................................... 11
Nash v. Lathrop,
142 Mass. 29 (1886) ................................................................. 22
North Laramie Land Co. v. Hoffman,
268 U.S. 276 (1925) .................................................................. 12
Practice Management Information Corporation v.
American Medical Association,
121 F.3d 516 (9th Cir. 1997) ..................................... 6, 28, 30, 31

v

Pages

Schnapper Public Affairs Press v. Foley,
667 F.2d 102 (D.C. Cir. 1981) ................................................... 25
Sims v. Heckler,
725 F.2d 1143 (7th Cir.1984) ................................................... 12
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ............................................................ 16, 17
Texaco, Inc. v. Short,
454 U.S. 516 (1982) .................................................................. 12
Twentieth Century Music Corp. v. Aiken,
422 U.S. 151 (1975) .................................................................. 17
United States v. Jefferson County Board of Education,
380 F.2d 385 (5th Cir. 1967) ................................................. 3, 15
United States v. One 1973 Rolls Royce,
43 F.3d 794 (3d Cir. 1994) ........................................................ 11
United States v. Paramount Pictures, Inc.,
334 U.S. 131(1948) .............................................................. 4,17
Wheaton v. Peters,
33 U.S. (8 Peters) 591 (1834) ................................................ 4, 20
Other Authorities

1 Nimmer on Copyright, Mathew Bender & Company, Inc.,
§ 5.06[CJ ....................................................................... 18, 19, 28
Anna, Tex., Ordinance No. 95-15 (Oct. 10, 1995) ........................... 7
§ 206.1 Compendium of Copyright Office Practices,
Copyright Office (1984) .............................................................. 16

VI

.. ;.

Pages

H.R. Rep. No 2222, 6Qth Cong. 2d Sess., 7 (1909) ......................... 17
Perritt, Sources and Rights to Access Public Information,
4 Wm & Mary Bill of Rts. J. 179 ( 1995) ...................................... 26
Suetonius, The Lives of the Twelve Caesars,
192 Random House, 1959 .................................................... 3, 16
U.S. Const. Art. I, § 8 ................................................................... 16

vu

INTEREST OF THE AMICI

Amici State of Ohio and ten other States and Territories have a
vital interest in the principles at stake in this case.

Governments

have an imperative obligation to make laws openly available to the
public. Governments regulate their citizens through administrative
and municipal law in a myriad of areas.

Such laws can include

both civil and criminal penalties. The amici States, through their
legislative and administrative systems, have incorporated into law
model codes such as the one at issue here. Because administrative
regulations have "the force and effect of law," States and local
governments have a duty under the Due Process Clause of the
United States Constitution-as well as under provisions in their
own public records laws and state constitutions-to provide the
public unimpeded access to the text of those regulations.
In addition, the States' unique perspective is particularly
important in this case, as the parties to this case are both private
entities.

The outcome of this case will substantially affect the

ability of the States to provide unfettered access to their laws. The

amici States therefore submit this brief to help the Court in
understanding the viewpoint of State and local governments, and to

urge the Court to reverse the district court's judgment and hold
that no entity, public or private, can hold a copyright in the text of
the law.
INTRODUCTION AND SUMMARY OF ARGUMENT

One of the cornerstones of due process is notice-a citizen
must be aware of what the law is before he can be deprived of life,
liberty or property for failing to follow it. A statute, administrative
rule or municipal ordinance-like any other law-has the potential
to deprive a citizen of a liberty or property right, so the law must be
sufficiently clear to give the citizen reasonable notice of what is
required or prohibited.
In contrast, one of the cornerstones of the copyright law is that
the holder of a copyright "has the right to refuse to publish the
copyrighted material at all and may prevent anyone else from doing
so, thereby preventing any public access to the material." Fox Film

Corp. v. Doyal, 286 U.S. 123 (1932).
The complete monopoly in the author of copyright works is
incompatible with the due process requirements inherent in the text.
of a law.

If the right to withhold access to a law is exercised,

citizens risk being punished for failure to follow an unavailable law
2

and the government is unable to discharge its duty towards those
citizens to make the law available.
In

this

case,

the

Appellee,

1s

a

not-for-profit

service

organization, Southern Building Code Congress International, Inc.
("SBCCI"), whose voting members are local governments.

SBCCI

successfully lobbied the towns of Savoy and Anna, Texas, to use its
model building codes as the building codes for those municipalities.
Appellant Peter Veeck wants to post local laws, including the
building codes of Anna and Savoy, on his website but SBCCI has
insisted that it has a copyright and thus a strict monopoly on
copies of the text of the building codes.
Thus, like Caligula's tax laws, Anna and Savoy's building
codes are, at best, "posted up, but in a very narrow place and in
excessively small letters, to prevent the making of a copy."

United

States v. Jefferson County Board of Education, 380 F.2d 385, 41011 (5th Cir. 1967), citing Suetonius, The Lives of the Twelve Caesars,
192 Random House, 1959.
But the scope of a copyright owner's right is not unlimited.
Indeed, the private reward to the owner of a copyright is "a
secondary consideration" to the ultimate aim of the copyright law3

the public benefit.

United States v. Paramount Pictures, Inc., 334

U.S. 131, 158 (1948).
The panel majority incorrectly found that due process rights of
citizens in the text of the law are outweighed by SBCCI's copyright
interest.

Notwithstanding the opinion of the panel majority, the

amici States contend that the rights of a copyright owner can never
outweigh the due process rights of the citizens to freely read and
copy the text of a law.

Copyright, while authorized by the

Constitution, is essentially a statutory right.

On the other hand,

due process is a constitutional right of the first order.
The incompatibility of copyright and due · process 1n this
context, and the idea that the law is in the public domain, is wellestablished in case law.

See, e.g., Wheaton v. Peters, 33 U.S. (8

Peters) 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888);

Callaghan v. Myers, 128 U.S. 547, 645 (1888).
In modern times, this reasoning has been followed by the First
Circuit in Building Officials Code Adm. v. Code Technology, Inc., 628
F.2d 730, 734-35 (1st Cir. 1980) ("BOCA"). The plaintiff in that case,
another code-writing organization, claimed copyright protection in
its

model

building code,

which,
4

like

SBCCI,

it

encouraged

governments to adopt through a licensing program.

The First

Circuit was not persuaded by BOCA's reasoning that the law is
public only when a public officer is its author.
The text of the law is public not because the public pays the
salaries of the authors, but because of its nature as the law.

See

Callaghan (reporter may hold copyright in the title page, table of
cases, headnotes, arguments of counsel and index, even though he
was a public official, paid from the public treasury), 128 U.S. at
645-50.
The recent case County of Suffolk New York v. First Anierican

Real Estate Solutions, 261 F. 179, 2001 U.S. App. LEXIS 16706 (2nd
Cir. 2001) supports this contention. The Suffolk court set forth a
test for when a work may be deemed to be in the public domain:
· (1) whether the entity or individual who created the work
needs an economic incentive to create or has a
proprietary interest in creating the work and (2) whether
the public needs notice of this particular work to have
notice of the law.
Under the second prong of the Suffolk test, due process dictates
that SBCCI cannot maintain its copyright. But even under the first
prong, there is no need for an economic incentive. SBCCI's primary
purpose is to create model codes and have them adopted by
5

government bodies, not to make money by selling books.

Even

more important, state and local governments have a duty to create
building codes, regardless of the existence of SBCCI and its model
code.
The cases cited by SBCCI are easily distinguishable, and to
the. extent that they are not, amici States submit that they are
wrongly decided and should not be followed. Both CCC Infonnation

Services, Inc v. Maclean Hunter Market Reports, 44 F.3d 61 (2nd Cir.
1994);

and

Practice

Management

Infonnation · Corporation

v.

American Medical Association, 121 F. 3d 516 (9th Cir. 1997), can be
distinguished from this case and BOCA because in both cases, the
work was produced by a private entity for a reason other than
incorporation into the law.

Economic incentives were needed to

create the works in those cases, quite apart from their use as
standards by the government.
Finally, SBCCI, BOCA and similar not-for-profit organizations
have waived their copyright in the text of the law by actively
lobbying State and local governments to adopt their model codes.
SBCCI cannot have its cake and eat it too-if it lobbies a

6

government to adopt its codes as the text of the law, it has waived
its copyright.
STATEMENT OF THE FACTS AND OF THE CASE

Peter

Veeck

owns

and

operates

a

service,

known

as

"RegionalWeb" which is physically located and operated in Denison,
Grayson County, Texas.

R. 92, Plaintiffs Motion for Summary

Judgment, p. 4. Veeck's website provides free access to information
by or about the area of Texas north of Dallas, including the area's
codes and ordinances.
Judgment, p. 4.

R. 92, Plaintiffs Motion for Summary

Two of the local codes published by Veeck on

RegionalWeb included the Building Codes of Anna and Savoy,
Texas. R. 516, Plaintiffs First Amended Complaint ii III.
The Building Codes of Savoy and Anna, Texas include by
reference the 1994 model building code promulgated by Southern
Building Code Congress International, Inc. ("SBCCI"). Anna, Tex.,
Ordinance No. 95-15 (Oct. 10, 1995). Deposition of SBCCI general
counsel Brad Ware, p. 31, lines 18-24.

SBCCI is not-for-profit

organization incorporated under the laws of the State of Alabama.
R. 388, Affidavit of Brad Ware. Although SBCCI is a private entity,

7

SBCCI is itself made up of governmental units or agencies. Voting
power for each "active member" is determined by the population the
governmental

unit

or

agency

serves.

membershipservices/mbvinfo.htm.

See www.SBCCI.org/

SBCCI's purpose is to promote

and promulgate standards which safeguard life, health and public
welfare for all types of buildings and constructions.

R. 388,

Affidavit of Brad Ware. In carrying out its purpose, SBCCl develops
and maintains a set of model building codes known as the Standard
Building Codes ("Codes"). R. 17, Answer ii 4. These Codes include
a Standard Building Code, a Standard Plumbing Code, a Standard
Gas Code, and a Standard Fire Prevention Code. R. 20, Answer ii
23.

With SBCCI's express permission, these Codes have been

incorporated by reference within the building codes of many
, municipalities and States across the country. R. 17, Answer ii 4.
SBCCI claims a copyright to these Codes, notwithstanding
their incorporation into the building codes of many municipalities
and States.

R. 17, Answer ii 4.

SBCCI claims that it has the

exclusive right to publish or license the reproduction and publication
of these Codes. R. 1 7, Answer ii 4.

8

The 1994 model code, incorporated by reference into the
municipal codes, was and is only available directly or indirectly
through SBCCI in bookstores, through direct sales via telephone,
over the Internet, or through SBCCI members. R. 17, Answer 'l[ 25.
Even copies of the 1994 model act maintained by the local
government officials in Savoy, Texas are subject to SBCCI's
copyright claims. R. 389, Affidavit of Brad Ware (stating that, "the
codes are available for inspection and copying as needed. . . .
SBCCI has routinely granted permission for copying of provisions of
its code under the fair use doctrine and for non-republishing uses
or non-general public distribution uses.").
SBCCI's exclusive control over its Codes generates millions of
dollars in revenue from the public, who must obey the laws of the
municipalities and States that have incorporated them. The Codes
derive their value from their incorporation into the law, not from
any other educational or entertainment value. People read them to
know the laws they must follow. SBCCI seeks to protect the value
that it derives from its exclusive control to the public's access these.
laws. R. 389, Affidavit of Brad Ware, p. 2.

9

Veeck filed the underlying declaratory judgment action to
clarify the public's right to access municipal building codes that
incorporate by reference SBCCI's Codes. SBBCI counterclaimed for
copyright infringement.
Veeck argues that SBCCI, by allowing the use of its model
codes by municipalities, allowed the codes to become part of the
public domain and therefore not subject to copyright protection.
Veeck expressed four grounds for finding lack of copyright
protection: (1) due process and access to the law, (2) the fact/ideaexpression merger, (3) misuse, and (4) waiver.

SBCCI argues, in

turn, that Veeck has violated the copyrights in its codes.

LAW AND ARGUMENT
A.

The Dictates of Due Process Are Inconsistent With a
Private Party Holding a Copyright in the Text of a Law.
1.

Due Process Requires That the Text of the Law be
Freely Available to All Citizens.

One of the cornerstones of due process is notice-a citizen
must be aware of what the law is before he can be deprived of life,
liberty or property for failing to follow it.
382 U.S. 399 (1966).

Giaccio v. Pennsylvania,.

Notice must be given before a criminal or

10

significant civil or administrative penalty is imposed.

See, e.g.,

McBoyle v. United States, 283 U.S. 25 (1931) (criminal sanction);
United States v. One 1973 Rolls Royce, 43 F.3d 794 (3rd Cir. 1994)
(civil forfeiture); Gen. Elec. v. EPA, 53 F.3d 1324 (D.C. Cir 1995)
(administratively assessed fine).
One of the basic purposes of due process is to protect the
citizen against having burdens imposed on him by the government
"except in accordance with the valid laws of the land." Giaccio, 382
U.S. at 403.

"Implicit in this constitutional safeguard is the

premise that the law must be one that carries an understandable
.
'd
meaning . . . ." ,, .

In modern jurisprudence, if a law as written or construed does
not give reasonable notice to individuals that their conduct is
-illegal, such a law may be considered "void· for vagueness."

Chicago v. Morales, 527 U.S. 41, 56 (1999).

Id.,

The "void for

vagueness" doctrine, while normally reserved for criminal statutes,
is not constrained by "the simple label a State chooses to fasten" on
the law.

Giaccio, 382 U.S. at 402. "Both liberty and property are

specifically protected" by due process. Id.

11

Due process protections are not limited to statutes and
judicial

op1n1ons,

as

administrative

rules

ordinances have "the force and effect of law."

and

municipal

Chrysler Corp. v.

Brown, 441 U.S. 281, 295 (1979), 1 Hildreth v. Iowa Dep't of Human
Servs., 550 N.W.2d 157, 160 (Iowa 1996).
Therefore,

a

statute,

administrative

rule

or

municipal

ordinance-like any other law-may deprive a citizen of a liberty or
property right, and must be sufficiently clear to give the citizen
reasonable notice of what is required or prohibited.
Normally, to afford citizens adequate notice of its terms, the
government need merely "enact and publish the law." Texaco, Inc.

v. Short, 454 U.S. 516, 531-538 (1982). The citizen is "charged with
knowledge of relevant statutory provisions affecting the control or
disposition" of the citizen's property. Texaco, 454 U.S. at 532. See,

also, North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925);
Anderson National Bank v. Luckett, 321 U.S. 233, 243 (1944).

1

However, to have such effect the rule must: "(1) affect individual rights and
obligations, (2) have been promulgated in compliance with statutory
procedures under a delegation of legislative authority, (3) not be arbitrary and
capricious, and (4) be reasonably related to the purposes of the enabling
legislation." Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984).
12

However, if the text of the law is unavailable to the citizen, no
notice at all has been given-it is the vaguest of vague laws,
because the citizen cannot know its content, and may not even
know of its existence.

See Lambert v. California, 355 U.S. 225

(1957) (conviction for failure to exercise a duty is inconsistent with
due process where person does not know of the duty). The citizen
has no opportunity to determine what behavior is required or
expected to comply with such a law.
In short, the government has a positive duty to provide all
citizens with unrestricted access to the text of the law, because if
"the law is generally available for the public to examine," the
citizens "may be considered to have constructive notice of it," and
any failure to follow it "results from simple lack of diligence."

.Building Officials Code Adm. v. Code Technology, Inc., 628 F.2d 730,
734-35 (1980) ("BOCA"). But "due process requires people to have
notice of what the law requires of them so that they may obey it and
avoid its sanctions." Id.

13

2.

The Complete Monopoly of Access Makes a Copyright
in the Text of a Law Incompatible with Due Process.

One of the cornerstones of the copyright law is that the holder
of a copyright "has the right to refuse to publish the copyrighted
material at all and may prevent anyone else from doing so, thereby
preventing any public access to the material." Id. at 735, citing Fox

Film Corp. v. Doyal, 286 U.S. 123 (1932) (copyright owner "may
.simply exclude others from using his property").
The complete monopoly in the author of copyright works is
incompatible with the due process requirements inherent in the text
of a law.

If a copyright owner can "simply exclude others from

using his property" in the text of a law, he can, by definition,
withdraw or withhold permission for the government to use the text,
and for the citizens to obtain access to it.
The danger of a copyrighter's veto is no less real simply
because the law may be available at a particular time. The power of
the copyright owner to withhold consent jeopardizes future access
to the text of the law. This is no idle speculation-indeed, SBCCI
does not even have a licensing agreement with the municipalities in
this case.

The municipalities must incorporate the code in their

14

ordinances by reference only-even the actual ordinance voted on
by the municipal body does not contain the text of the law.

No

contract or licensing agreement precludes SBCCI from refusing to
provide access to Anna and Savoy of their own municipal
ordinances at any time.
·· If the right to withhold access to a law is exercised, citizens,

who presumably will be expected to continue following the law, will
be unable to determine what that law is. A citizen is thus at risk of
being punished for failure to follow an unavailable law. In addition,
the government will be unable to discharge its duty towards citizens
to make the law available.
In short, a copyright in the text of the law puts citizens in the
position of the Romans of Caligula's time, when certain taxes "had
been proclaimed but not published in writing,'' so that "many
offenses were committed through ignorance of the letter of the law."
Even when Caligula was persuaded to "publish" it, he "had the law
posted up, but in a very narrow place and in excessively small
letters, to prevent the making of a copy." United States v. Jefferson

County Board of Education, 380 F.2d 385, 410-11 (5th Cir. 1967),

15

citing Suetonius, The Lives of the Twelve Caesars, 192 Random
House, 1959.
The severe restrictions placed on municipal codes by SBCCI
make them a modern equivalent of Caligula's tax laws.

"[T)his

aspect of copyright protection can[not] be squared with the right of
the public to know the law to which it is subject." BOCA, 628 F.2d
at 735. Indeed, the United States Copyright Office itself recognizes
that there can be no copyright in the law. § 206.1 Compendium of
Copyright Office Practices, Copyright Office (1984).

3.

The Primary Purpose of Copyright Law is not to
Provide a Benefit to Authors, But to Provide the
Public With Access to Authors' Works.

Further, the scope of a

copyright owner's right is not

unlimited. The primary purpose of copyright law is "To Promote the
Progress of Science and the useful Arts . . . . " U.S. Const. Art. I, §
8.

The copyright privileges accorded an owner "are neither

unlimited nor primarily designed to provide a special private
benefit," but rather to motivate artists and inventors "and to allow
the public access to the products of their genius after the limited
period of exclusive control has expired."

Sony Corp. of America v.

Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
16

Indeed, the private reward to the owner of a copyright is "a
secondary consideration" to the ultimate aim of the copyright lawthe public benefit.

United States v. Paramount Pictures, Inc., 334

U.S. 131, 158 (1948).

"The sole interest of the United States and

the primary object in conferring the monopoly lie in the general
benefits derived by the public from the labors of authors." Fox Film,
256 U.S. at 127; see, also, Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 156 (1975). Indeed, Congress recognized this interest
in the public welfare when enacting the comprehensive revision of
the Copyright Act in 1909: "The granting of such exclusive rights,
under the proper terms and conditions, confers a benefit upon the
public that outweighs the evils of the temporary monopoly."

H.R.

Rep. No 2222, 60th Cong. 2d Sess., 7 (1909) (Judiciary Committee of
the House of Representatives).
Even where material is subject to copyright protection, "[a]ll
reproductions of the work ... are not within the exclusive domain
of the copyright owner; some are in the public domain." Sony, 464
U.S. at 432.

The constraints of due process require that public

enactments, such as the laws at issue here, be in the public
domain, and not subject to the control of a private copyright owner.
17

4.

. The Constitutional Due Process Rights of Citizens Far
Outweigh any Public Interests in Copyright.

The District Court and the panel majority incorrectly found
that due process rights of citizens in the text of the law are
outweighed by SBCCI's copyright interest.

"[A] policy judgment is

indispensable to our balancing of the public interests in, on the one
hand, encouraging innovation through copyright and, on the other
hand, ensuring free access to the law."
The panel came down on the side of copyright, quoting a wellknown treatise as its only basis.

See 1 Nimmer on Copyright,

Mathew Bender & Company, Inc.,§ 5.06[C]. Nimmer recognizes the
due process implications of holding a copyright in the text of a law,
but states that "it is questionable whether that rationale justifies
the denial of copyright to a private person or group who produces
such a model code." Id.
Notwithstanding the op1n1ons of the panel majority and

Nimmer on this issue, the amici States contend that the rights of a
copyright owner can never outweigh the due process rights of the
citizens in the text of a law.

Copyright, while permitted by the

Constitution, is at base only a statutory right. As discussed above,

18

the rights of copyright owners are not absolute, and primarily
created for the ultimate benefit of the public, rather than authors.
On the other hand, due process is a constitutional right of the
first order-it was considered so important it was included both in
the Bill of Rights and in the Fourteenth Amendment. And the due
process right at issue here is of fundamental importance to the
operation of a free government.

In our society, the people are

assumed to know the law, and are expected to follow it.

Without

guaranteed access to the text of the law at all times, this right is not
just in jeopardy-it has been abridged.

Nimmer admits that allowing a copyright in the text of a law
would result in a due process violation, but his solution is to allow
the citizen to use the due process and the fair use doctrine as a
defense. "Failure to observe such due process notice requirements
would certainly constitute a defense for one charged with violation
of the nonpublicized law."

Amici States assert that Nimmer's solution is unsatisfactory for
several reasons. It is simply bad government and a violation of due
process to restrict a citizen's access to the law hoping that he will
have defenses to an infringement suit. A government should strive
19

to provide the public with the tools to be good citizens, not merely
hope that a citizen will be able to defend an infringement suit when
he attempts to learn the law.
Perhaps most important, the chilling effect of a potential
copyright suit will prevent many citizens from copying the law, thus
presenting them with the classic Hobson's choice-copy the law and
risk a copyright suit, or remain ignorant of the law and risk a
sanction for breaking it.
In short, regardless of the facts of an individual case, the due
process rights of the public in the text of a law far outweigh any
possible public benefit from copyright in that same text.

B.

A Long-Standing Body of Case Law Supports the
Incompatibility of Copyright In, and Access To, the Text of
the Law.
1.

The Supreme Court and Other Courts Have
Consistently Held that There Can Be No Copyright in
the Text of Judicial and Statutory Law.

Cases going back at least to 1834 hold that judicial opinions
and statutes are in the public domain and not subject to copyright
protection. The first such case was Wheaton v. Peters, 33 U.S. (8
Peters) 591 (1834). In that case, Wheaton, the early reporter for the
Supreme Court, claimed a copyright in his reports. While the main
20

issue was whether Wheaton had complied with a
requirement,

the

Court also

remarked

"that the

statutory
Court are

unanimously of the opinion that no reporter has or can have any
copyright in the written opinions delivered by this court," and that
"the judges thereof cannot confer on any reporter any such right."
33 U.S. at 668.
The Court definitively held that the text of judicial opinions is
in the public domain in Banks v. Manchester, 128 U.S. 244 (1888).
"The whole work done by the judges constitutes the authentic
exposition and interpretation of the law, which, binding on every

citizen, is free for publication to all, whether it is a declaration of
unwritten law, or an interpretation of a constitution or a statute."
128 U.S. at 253 (emphasis added). And in Callaghan v. Myers, 128
U.S. 547, 645 (1888), the Supreme Court reiterated that a reporter
of opinions may hold a copyright in "all but the opinions of the
court."
Courts . have recognized that statutes as well as judicial
opinions are in the public domain, and cannot be copyrighted. For
instance, in Davidson v. Wheelock, 27 F. 61 (D. Minn. 1866), a
federal court in Minnesota held that the publisher "obtained no
21

exclusive right to print and publish and sell the laws of the state of
Minnesota," and went on to hold that "such publications are open
to the world.

They are public records, subject to inspection by

every one .... " 27 F. at 62.
Several other courts have followed suit. Nash v. Lathrop, 142
Mass. 29, 35 (1886) ("Every citizen is presumed to know the law ...
and it needs no argument to show that justice requires that all
should have free access to the opinions .... "); Connecticut v. Gould,
34 F. 319 (N.D. N.Y. 1888) ("in a country where every person is
presumed and required to know the law ... the fullest and earliest
opportunity of access to uudicial opinions] should be afforded.");
Howell v. Miller, 91 F. 129 (6th Cir. 1898) (the reporter "has no

exclusive right in the judicial opinions published," but the reporter's
copyright consisted of his index,

marginal~

references, notes,

memoranda, table of contents and digests); cf. Gould v. Banks, 53
Conn. 415 (1886).
In modern times, this reasoning has been followed by the First
Circuit in BOCA v. CT.

The plaintiff in that case, another code-

writing organization, claimed copyright protection in its model
building code, which, like SBCCI, it encouraged governments to
22

adopt through a licensing program. Massachusetts adopted a code
substantially similar to the BOCA model, and the defendant, Code
Technology, Inc. ("CT") published and distributed its own edition of
the Massachusetts Building Code. CT argued, as does Veeck here,
that the text of the Building Code had entered the public domain
and could not be copyrighted.

The district court disagreed and

granted a preliminary injunction.
The First Circuit declined to rule on the ultimate merit of the
case, but vacated the preliminary injunction, and pointed out that it
was not persuaded by BOCA's reasoning, as "the public owns the
law."

"The citizens are the authors of the law, and therefore its

owners, regardless of who actually drafts the provisions, because
the law derives its authority from the consent of the public,
expressed through the democratic process." 628 F.2d at 734.
These cases demonstrate a long-standing principle that the
text of a law is, by its very nature, in the public domain and not
copyrightable. In addition, they illustrate that there is no principled
reason to differentiate between judicial opinions, statutes and
administrative or municipal enactments.

23

2.

The Text of the Law is Public Because of its Nature as
the Law, Not Because of the Nature or Employment of
the Author.

The case law demonstrates an important principle that
counters one of SBCCI's primary arguments: the text of the law is
public not because the public pays the salaries of the authors, but
because of its nature as the law. Although the Supreme Court in
Banks mentioned that the judges were paid by the public, in its

next

case

on

the

subject,

the

Court

contradicted

such

a

justification. In Callaghan v. Myers, the Supreme Court held that
the reporter may hold a copyright in the title page, table of cases,
headnotes, arguments of counsel and index, even though he was a
public official, paid from the public treasury.

128 U.S. at 645-50.

In Connecticut v. Gould, the State also paid the reporter of opinions,
yet a lower federal court held that he was allowed to keep a
copyright in his index and syllabi (though not in the text of the
opinions). 34 F. 319.
Thus, merely because it is authored by a public official whose
salary is paid by the public, . a document is not exempt from
copyright. It follows that the fact that judges or legislators are paid
by the public is irrelevant to the copyrightability of the law-the text
24

of the law is in the public domain because of its nature as the law,
not because of its author. See, also, Schnapper Public Affairs Press

v. Foley, 667 F.2d 102, 110 (D.C. Cir. 1981), quoting Du Puy v. Post
Telegram Co., 210 F. 883 (3rd Cir. 1914).
The recent case County of Suffolk New York v. First American

Real Estate Solutions, 261 F. 179, 2001 U.S. App. LEXIS 16706 (2nd
Cir. 2001), supports this contention.

In Suffolk, the county had

produced tax maps to help it in assessing property tax.

The

question was whether the county's tax maps were amenable to
copyright, or whether they had passed into the public domain. The

Suffolk court set forth a test for whether a work may be deemed to
be in the public domain:
(1) whether the entity or individual who created the work
needs an economic incentive to create or has a
·proprietary interest in creating the work and (2) whether
the public needs notice of this particular work to have
notice of the law.
261 F.3d at_, LEXIS 16706, at *34-35.
Under the second prong of the Suffolk test, SBCCI cannot
maintain its copyright.

As discussed above, due process requires

that the public have complete and free access to the text of the law.

25

The public must have "notice of [the text of the municipal codes at
issue here] to have notice of the law."
But even under the first prong-the need for an economic
incentive-SBCCI cannot maintain a copyright. The first prong at
the Suffolk test, like the second, is constitutionally based. The only
purpose for copyright is to "promote the progress of science and
useful arts." When economic incentive is not needed, the Patents
and Copyrights Clause does not authorize a copyright. See, Perritt,
Sources and Rights to Access Public Information, 4 Wm & Mary Bill

of Rts. J. 179 (1995); Feist Publications, Inc. v. Rural Telephone
Service, Co., 499 U.S. 340, 347-48 (1991).
As stated by SBCCI's own general counsel, SBCCI's pnmary
purpose is to create model codes and have them adopted by
government bodies, not to make money by selling books. SBCCI is
a not-for-profit organization whose members consist of government
units and agencies.

SBCCI may have an economic incentive to

maintain a copyright in the model codes, but there is no need for
such an incentive to create the codes.

SBCCI and similar

organizations would create such codes with or without the
copyright incentive.
26

Even more important, state and local governments have a duty
to create building codes, regardless of the existence of SBCCI and
its model code.

Thus, copyright law does not need to create any

economic incentive in writing codes-they will be written whether
governments create them or acquire them from an entity like
SBCCI.

3.

Cases Cited by SBCCI Are Easily Distinguishable and
To the Extent They Are Not, Should Be Disregarded.

The cases cited by SBCCI are easily distinguishable, and to
the extent that they are not, amici States submit that they are
wrongly decided and should not be followed.
The first, CCC Information Services, Inc v. Maclean Hunter

Market Reports, 44 F.3d 61 (2nd Cr. 1994), involved two private, forprofit organizations. The Appellee, CCC Information Services, had
been systematically loading major portions of the Appellant's book
of used car valuations commonly known as the Red Book onto its
database and republishing the information to its customers.

The

Second Circuit held that the Red Book had not fallen into the public
domain even though it had been adopted in state statutes
regulating insurance payments.

27

CCC is distinguishable. The Red Book itself was not the text
of the law, but only one of several alternate standards by which
insurers could determine the value of a used car. The Red Book is
not, in and of itself, a regulation-it gives the public no directives to
follow or duties to fulfill.

Thus, under the second prong of the

Suffolk test, the public does not "need notice of this particular work
to have notice of the law." 261 F.3d at_, LEXIS 16706, at *34-35.
In addition, "the adoption of a private work into law might well
justify a fair use defense for personal use, but it should not
immunize a competitive commercial publisher from liability." CCC,
44 F.3d at ?4, footnote 30. In other words, the private citizen who
obtains a copy to ensure that he is following the law is not an
infringer, but a commercial entity attempting to profit from the
work of another is an infringer.2
Similarly, in Practice Management Information Corporation v.

American Medical Association, 121 F.3d 516 (9th Cir. 1997), the AMA
had a copyright on their medical coding system, which had been
licensed to the federal Health Care Financing Administration

2

It applied to the text of a law, this is essentially the same flawed rationale
used by Nimmer, as discussed above.

28

("HCFA"). However, the license was "non-exclusive, royalty free and
irrevocable."

HCFA was free to "use, publish and distribute" the

code ·and had the right to cancel the agreement and use a
competing system at any time. 121 F.3d at 517.
As with CCC, the Ninth Circuit distinguished a user denied
access to a standard under the law, and a rival for AMA's business
in copying and publishing the code.

The Court also pointed out

that any attempt by the AMA to restrict access to the text of the
code would likely result in termination of its agreement with HCFA.
Both cases can also be distinguished because in both the work
was produced by a

private entity for a

incorporation into the law.

reason other than

The government would be highly

unlikely, on its own, to create a valuation system for used cars or a
medical coding system. This is precisely the distinction made in the
first prong of the Suffolk test.
In contrast, SBCCI, BOCA, and similar organizations create
model codes for the express and primary purpose of persuading
States and municipalities to incorporate them as the text of a law.
And SBCCI and similar organizations have insisted on very
restrictive copyrights, which virtually preclude governments from
29

providing citizens with the text of the law.
statement, R. 17, Answer iJ 17.)

(See copyright

No one but SBCCI is allowed to

copy or distribute the law without SBCCI's permission, not even the
governmental entities responsible for enforcing it.

Indeed, SBCCI

insists that its code be adopted by reference only, so that the text of
the law does not even appear in the ordinance or regulation
adopting it, or in codified versions of the ordinances or regulations
of a government entity. Id.
Under these circumstances, nothing in the copyright law
prevents SBCCI from simply refusing to make copies of the text
available to the public, or even to the governmental entities
responsible for enforcing it.

This is no less dangerous merely

because it is now in SBCCI's commercial interest to allow access.
SBCCI, or a successor in interest, could cut off access at any time,
for any reason, including bankruptcy, development of new codes
not yet adopted by the State or municipality, or even retaliation
against a government entity for refusal to adopt other SBCCI codes.
In contrast, the AMA's agreement in Practice Management
irrevocably allowed the United States the unlimited ability to copy
and distribute copies of the code, and allowed the U.S. to revoke the
30

license at any time and use an alternate coding system.

In CCC,

the Red Book was only one of several possible methods of valuation
that the insurer could use.

Neither case involved a risk that the

relevant government or its citizens would lack the necessary tools to
know the requirements of the law.
Thus, both CCC and Practice Management are distinguishable,
and alternately, to the extent that those cases stand for the
proposition that the text of a law can be copyrighted, they are
against the weight of precedent,

as well as against

sound

constitutional principles, and should be ignored.
C.

SBCCI and Similar Organizations Have Waived any
Copyright by Actively Lobbying Government to Adopt
Their Codes.

SBCCI, BOCA and similar not-for-profit organizations actively
lobby State and local governments to adopt their model codes, and
yet insist that the text of the codes remain a closely-guarded
monopoly. SBCCI has undoubtedly been aware of the long line of
case law precluding a copyright in the text of the law, and yet has
continued to conduct its business as if this body of law did not
exist.

SBCCI cannot have its cake and eat it too-if it lobbies a

government to adopt its codes as the text of the law, it must accept
31

that the text will pass into the public domain.

SBCCI has waived

its copyright.
CONCLUSION

For the foregoing reasons, amici States urge the Court to
overrule the decision of the panel and hold that there can be no
copyright in the text of a law.
Respectfully submitted,
BETTY D. MONTGOMERY
Attorney General of Ohio

ELISE W. PORTER
MARTIN D. SUSEC
Assistant Attorneys General
Chief Counsel's Staff
30 East Broad Street, 17th Floor
Columbus, OH 43215-3428
[phone]
[phone] FAX

Attorneys for Amici States

32

CERTIFICATE OF SERVICE

I hereby certify that two true copies of the foregoing Brief of

Amicus Curiae States of Ohio and Ten Other States and Territories
Supporting Appellant Veeck Upon Rehearing En Banc was served,
by ordinary U.S. mail (on paper and computer disk), to counsel of
record listed below, pursuant to Fed. R. App. P. 25(b), and that the
same document was filed, by delivering an original and twenty
copies (on paper and computer disk) to the United States Post Office
for first-class U.S. mail delivery to the Clerk of the Court, pursuant
to Fed. R. App. P. 25(a)(2)(B)(i), on this 6th day of November, 2001,
at the following addresses:
Eric Weisberg
200 West Main Street
Denison, TX 75020-3025
Counsel for Plaintiff-Appellant
Robert J. Veal
Burr & Forman
South Trust Tower
420 North 20th Street, Suite 3100
Birmingham, AL 35203
Counsel for Defendant-Appellee
Michael Lowenberg
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, TX 75201-4618
Counsel for Amicus Alk1A
33

Karen B. Tripp
1100 Louisiana Street, Suite 2690
Houston, TX 77002
Counsel for Amici Association of
American Physicians & Surgeons, Inc.
Eagle Forum Education and Legal Defense Fund
Mr. Charles R. Fulbruge, III
Clerk of the Court
United States Court of Appeals
for the Fifth Circuit
600 Camp Street
New Orleans, LA 70130

ELISE W. PORTER
Assistant Attorney General
Chief Counsel's Staff

34

CERTIFICATE OF COMPLIANCE
Pursuant to

5th

Cir. R. 32.2. and 32.3 and Fed. R. App. P.

32(a)(7)(C), the undersigned certifies this brief complies with the
type-volume limitations of

5th

Cir. R. 32.2.7(b) and Fed. R. App. P.

29(d).
1.

Exclusive of the exempted portions in

5th

Cir. R. 32.2 and

Fed. R. App. P. 32.2.7(b)(3), the brief contains 6,728 words.
2.

The brief has been prepared in proportionally spaced

typeface using Bookman Old Style 14 point font for text and 12
point font for footnotes produced by Microsoft Word 2000.
3.

An electronic version of the brief has been provided and if

the Court so requests, the undersigned will provide a copy of the
word or line printout.
4.

The

undersigned

understands

a

material

misrepresentation in completing this certificate, or circumvention of
the type-volume limits in

5th

Cir. R. 32.2, may result in the Court's

striking the brief and imposing sanctions against the person signing
the brief.

ELISE W. PORTER .
Assistant Attorney General
35