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U.S. Supreme Court Decides Not to Adjudicate Appeal in SBCCI v. Veeck

Standards copyright debate may continue on other fronts

New York, Jul 08, 2003

Southern Building Code Congress International v. Veeck addresses the issue of whether a standards developer’s code enters the public domain 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” to that question. In the final development of the case, the United States Supreme Court has decided not to hear an appeal from the Fifth Circuit’s decision, thereby leaving it intact as legal precedent with regard to this issue.

In deciding to deny SBCCI’s Petition for a Writ of Certiorari, the Supreme Court took into consideration the opinion of the Office of the U.S. Solicitor General (SG) (1), which submitted an amicus brief supporting the Fifth Circuit’s conclusion. The SG relied heavily 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 addition, the SG attempted to distinguish Veeck from previous cases that upheld the developer’s assertion of copyright under similar circumstances by arguing that SBCCI’s codes were comprehensive and created for the “sole purpose” of enactment into law, essentially regulating an entire area of private endeavor.

In its response brief, SBCCI maintained that Banks does not apply because it 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 existed. Further, SBCCI considered the SG’s attempts to distinguish other Circuit Court decisions to be inconsequential, pointing out 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,” read the brief. 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.”

The Supreme Court’s support of the Fifth Circuit holding (i.e., to the extent a privately copyrighted standard or code is referenced into law or becomes the law, the developer cannot enforce its copyright against any free distribution of it as “the law”) establishes Veeck as the most recent precedent in the standards copyright debate. It is likely, however, that the dialog about this issue has not come to an end. “The Supreme Court may be waiting for further caselaw to develop before deciding to hear an appeal,” said Amy Marasco, vice-president and general counsel at the American National Standards Institute (ANSI). “Other litigation in other Circuits may be pursued and may result in more positive decisions.”

According to Marasco, other action on the issue could include confronting the U.S. Copyright Office if that Office refuses to register a copyright based on the Fifth Circuit’s decision. “It is our understanding that the U.S. Copyright Office has begun questioning some developers as to whether their standards or codes are referenced into law in any jurisdiction,” said Marasco. It is also possible that ANSI and others may seek a legislative solution to clarify that a government entity at any level cannot in effect turn a privately copyrighted work into a public good solely by referencing it into law. This legal issue will be one of the principle ones discussed by a panel of standards developers’ General Counsels at ANSI’s upcoming ANSI SDO Legal Issues Forum meeting on October 2, 2003.

1. The Solicitor General reports to the Attorney General in 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 to submit an amicus brief.

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