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Solicitor General Files Brief in SBCCI v. Veeck, Suggests Denial of Cert

SBCCI response expected next week

New York, Jun 04, 2003

Southern Building Code Congress International v. Veeck addresses the issue of whether a standards developer’s code loses copyright protection when it is adopted or referenced by a government entity and thereby becomes “the law.” Sitting en banc in June 2002, the U.S. Court of Appeals for the Fifth Circuit answered “yes.” In the latest development of the case, the Office of the Solicitor General¹ has taken a position in support of the Fifth Circuit’s conclusion. On May 30, 2003, the Office filed a brief with the United States Supreme Court regarding the Court’s upcoming decision whether to hear an appeal of the case and opined that review of the decision rendered by the Fifth Circuit is “not warranted.”

The Southern Building Code Congress International (SBCCI) develops, publishes and copyrights building codes that frequently are made mandatory through legislative action by state and local governments. Veeck involves references to SBCCI codes in the laws of Anna and Savoy, Texas. Peter Veeck, who runs an informational website about Northern Texas, purchased a copy of a building code from SBCCI (which came with a shrink-wrap license agreement) and then posted it on his website as the law of Anna and Savoy, Texas, making the code freely available. SBCCI informed him that he was violating their copyright and asked him to remove the codes. Mr. Veeck responded by filing suit.

The courts that heard the case weighed the public interest in encouraging innovation through copyright against ensuring unfettered access to the law. Among other things, SBCCI and supportive amici argued that the not-for-profit organizations that develop these standards would be unable to continue to do so if their private work enters the public domain when adopted or referenced by a public authority. This would result in the imposition of a burden on government bodies to fill the resulting void. The Fifth Circuit, however, held that while SBCCI retains the copyright to its codes in general, “[w]hen those codes are enacted into law…they become to that extent ‘the law’ of the governmental entities and may be reproduced or distributed as ‘the law’ of those jurisdictions.”

In his brief for the Supreme Court, the Solicitor General relied heavily on two nineteenth century Supreme Court decisions that held that a private individual or company publishing judicial opinions may not acquire a copyright in them because those articulations of the law are authored by public servants. In addition, the Solicitor General attempted to distinguish Veeck from previous cases that upheld the developer’s assertion of copyright under similar circumstances. The Solicitor General further argued that, at a minimum, the issue should be explored more thoroughly by the lower courts before the Supreme Court reviews it.

SBCCI is expected to submit a brief to the Supreme Court in response to the Solicitor General’s comments sometime next week. The Court most likely will decide whether or not it will hear the appeal before it goes on summer recess near the end of June. ANSI Online News will continue to publish updates as these events unfold.

¹ The Solicitor General heads the United States Department of Justice. In the course of deciding whether to hear a case on appeal, the Supreme Court sometimes asks the Solicitor General for his or her opinion.