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New Developments in Southern Building Code Congress International v. Veeck

New York, Jun 13, 2003

In the latest development in the case of Southern Building Code Congress International, Inc. v. Veeck, SBCCI has filed a new brief with the Supreme Court on 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.” The petitioner’s supplemental brief, submitted to the Court last week, is in direct response to a brief filed by the U.S. Solicitor General (SG) in late May.

In its brief, SBCCI emphasized that the SG’s arguments (which urge the Court not to review the decision of the Court of Appeals for the Fifth Circuit in favor of Veeck) contradict those expressed by the SG’s office in a previous, similar case. SBCCI addressed the grounds upon which the SG based this new position.

When opining that the Supreme Court should not hear Veeck, the Solicitor General wrote that he believed the Fifth Circuit’s decision in the case was correct and not in conflict with different decisions in three similar cases. He further argued that the issue should, at the very least, be explored more thoroughly by the lower courts before the Supreme Court reviews it.

The Fifth Circuit, sitting en banc, held that SBCCI retains the copyright in its standard, but that “when those codes are enacted into law…they become to that extent ‘the law’ of the governmental entities and may be reproduced and distributed as ‘the law’ of those jurisdictions.” In his brief agreeing with the Fifth Circuit, the SG relied on the Supreme Court decision in Banks v. Manchester in 1888, which held that a private individual or company publishing judicial opinions may not acquire copyright in them because those articulations of the law are authored by public servants.

In response to this argument, SBCCI maintained that Banks focuses only on whether copyright attaches to works authored by public servants in their official capacity. Veeck, on the other hand, concerns the effective termination of copyright protection that already exists. SBCCI noted that the SG displayed reasoning analogous to SBCCI’s in a brief submitted in connection with a case similar to Veeck called Practice Management Info. Corp. v. American Medical Ass’n (PMIC) . In that case, the SG argued that Banks did not apply because it did not address any question regarding the copyright status of a work authored by a private entity and subsequently referenced into law. SBCCI pointed to the widespread practice of government bodies incorporating standards by reference, as was the case in Veeck, as a means of respecting the conditions on which the copyrighted material was offered to them.

Important to the SG’s current arguments in Veeck is the ability to establish that the Fifth Circuit’s opinion does not conflict with the precedent that has been set by three similar cases that have been adjudicated by other Circuit courts. He differentiated Veeck from Building Officials & Code Adm. v. Code Technology, Inc., CCC Info. Servs., Inc. v. Maclean Hunter Market Reports, Inc. , and PMIC by saying that SBCCI’s codes were created for the “sole purpose” of enactment into law, were comprehensive and regulated an entire area of private endeavor.

SBCCI countered by arguing that, once referenced by a government body as required conduct, all of the standards in question then caused regulated persons to conform their conduct accordingly. “The ensuing copyright question is the same: Does the government’s decision to make the copyrighted proposals binding place the copyrighted material in the public domain? The First Circuit said maybe. The Second and Ninth Circuits said no. And nine of fifteen Fifth Circuit judges said yes.”

Finally, while the SG urged the Supreme Court to decline review of the Veeck decision at this time to permit more cases on the issue to arise and be deliberated by lower courts, SBCCI argued that standards organizations who would be affected by this decision – and the government bodies that rely on their privately authored works to fill a legislative void - need a definitive answer now.

The Supreme Court is expected to announce whether it will review Veeck by the end of June before it adjourns for summer recess. ANSI Online will continue to publish updates as the events of the case unfold.

ANSI Nanotechnology Standards Panel