Jacques L. Wiener, Jr.

“ The Idea/Expression Dichotomy and Merger
Veeck insists (and now a majority of the active judges of this court agree) that the model codes lose their copyright protection by virtue of the idea/expression (or fact/expression) dichotomy in copyright law. [28] Veeck's basic contention is that when a model code is enacted into law by being adopted by reference, it automatically metamorphoses from "expression" to emerge as an "idea"—and that as an idea, it cannot be protected. ”

“ Technical codes and standards have become necessary, pervasive, and indispensable ingredients of Twenty-First Century life in this country; regrettably, today's majority opinion has a real potential of drastically changing the societal landscape through that opinion's predictably deleterious effects on these codes and standards, their authors, and the public and private entities that daily use and depend on them. ”

“ The Court grounded its century-and-one-quarter old Banks holding—that judicial opinions cannot be copyrighted [11] —in the logic that, as the product of judges who are paid from public coffers and elected or appointed for the sole purpose of interpreting and applying the law, judicial opinions can never be copyrighted.33 Thus Banks turns not on the nature of the work but on the nature of the author. ”

“ Finally, denying the Veecks of the world unrestricted republication and dissemination rights does not obstruct reasonable and necessary usage of and compliance with the adopted codes. I remain confident that the copyright doctrines of fair use and implied license or waiver are more than adequate to preserve the ability of residents and construction industry participants to copy any portions of the code that they want or need to view. ”

“ Courts frequently must decide how and at what level to draw the juridical line between idea and expression for copyright purposes. Judge Learned Hand, applying the idea/expression dichotomy to determine if one author's play infringed the work of another playwright, remarked:
Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. ”

“ Indeed,recent appellate case law, congressional pronouncements,and federal agency actions, predict the diametrically opposite result: a discernable trend towards greater governmental adoption of privately created codes with concomitant retention of copyright protection, tempered, of course, by express or implied consent or waiver -- or even fair use -- for those officials, residents, contractors, subcontractors, and design professionals who have a need to view and copy portions of codes to comply with their provisions. ”

“ In no case does copyright protection for an original work of authorship extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. ”

“ The majority's purported distinction between standards and codes is far too narrow to decide the instant case on those grounds—it is a paradigmatic example of a distinction without a difference. The same principles that apply to the analysis of privately created standards apply to privately created codes—both deal with the protection afforded to privately organized and authored collections of hyper-technical data for use in a specialized segment of today's complex society that benefits from uniformity in those data. ”

“ According to Veeck—and now our en banc majority—simply by virtue of their adoption into law, SBCCI's model codes have become "THE law"; and as THE law, all THE people (not just those who may be deemed metaphysically to have been the authors by virtue of their elected legislatures' acts of adoption) have an absolutely unfettered right to do whatever they please in the way of copying and publishing, in total disregard of the author's otherwise valid and enforceable copyright. ”

“ These pronouncements by Congress and the OMB strongly evince a recognition that the privately created regulatory codes and standards differ greatly from either judicial opinions or a statutes. Technical codes are indispensable resources in today's increasingly complex, high-tech society, and they deserve authorship protections not afforded to other types of "THE law." ”

“ By its own terms, the Banks holding is obviously limited to the work of taxpayer-paid public officials who produce or interpret the law. The majority's stretching of Banks to the facts of the instant case constitutes a clear overreaching that finds no definitive support from any controlling authority. ”

“ Thus, the majority's superficially appealing contention that from a policy perspective, "THE people" may do as they please with "THE law" rests on the flawed foundation that "THE law," irrespective of whether it be in the form of opinions, statutes, or regulatory standards or codes — and irrespective of by whom it is "made" — should be treated identically. ”

“ Federal law, because it does not govern the safety and building ordinances of states or municipalities, generally addresses national standards instead of specific safety and building requirements embodied in a code. In substance, though, technical codes are "standards;" ”

“ Although some among the many highly specific, technical, and detailed provisions within a building code might be susceptible of being expressed in only one or a handful of ways—and thus conceivably be subject to merger—a total, unitary building code, in globo, may be written, organized, and presented in any one of innumerable forms. All concede that many code-drafting organizations like SBCCI exist and that they are constantly creating competing versions of topical codes ”

“ Acuff-Rose Music, while evaluating a fair use defense, the Supreme Court discussed the degree to which a parodist's work transforms a copyrighted original. See 510 U.S. at 579. There, the parodist was the one making the transformation. In contrast, Veeck admits that he did nothing more than copy SBCCI's model codes verbatim; he did not transform them, through parody or otherwise. Therefore, Veeck's argument that the adoption by reference of SBCCI's codes by Anna and Savoy were "transformative" events does not find a home in Campbell. ”

“ Although the code is an original work requiring creativity on the part of SBCCI, it is also an informational and functional work. This fact broadens the scope of the fair use defense. [49] In addition, the copyrighted work in this case is part of the regulatory codes of Anna and Savoy. Although this factor lends a modicum of support to Veeck's position, it (1) must be considered in light of all the other
factors, and (2) is not as significant as the others in the fair use determination. ”

“ For small towns like Anna and Savoy, such a resultcould be even more detrimental, as their limited resources well might be insufficient to absorb the costs of creating their own codes. Ultimately, taxpayers would end up paying for a service that is currently provided efficiently, expertly, and at no expense to them. ”

“ Such a task would inefficiently expend the time and resources of the legislative and executive bodies of these governmental entities,not to mention the question of available expertise. To create codes of appropriate detail, accuracy, and information, governmental bodies would have to enlist the aid of technical experts, undoubtedly at considerable cost. Finally, causing municipalities, states, and the federal agencies to engage in this activity could lead to innumerable variations of any given code, thereby undermining uniformity and, with it, safety and efficiency. ”

“ In contrast, copyrightability of the CPT provides the economic incentive for the AMA to produce and maintain the CPT. "To vitiate copyright, in such circumstances, could, without adequate justification, prove destructive of the copyright interest, in encouraging creativity," a matter of particular significance in this context because of "the increasing trend toward state and federal adoptions of model codes." ”

“ As the district court noted, " [c] ountless entities provide free access to materials on the Internet and still retain enforcement of their copyrights."
d. Fair Use
Finally, Veeck argues that his posting of SBCCI's copyrighted material on the Internet constituted a "fair use." Congress has excepted from infringement of copyrighted materials such specified uses as news reporting, teaching, and research. ”

“ Today, the trend toward adoption of privately promulgated codes is widespread and growing, and the social benefit from this trend cannot be seriously questioned. The necessary balancing of the countervailing policy concerns presented by this case should have led us to hold that, on these facts, the copyright protection of SBCCI's privately authored model codes did not simply evanesce ipso facto, when the codes were adopted by local governments ”

“ Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) . 40 ↑ Veeck advanced defenses grounded in due process, public domain, fair use, waiver, copyright misuse, merger, and free speech. ↑ Cf. CCC Information Services, Inc. v. Maclean Hunter Market Reports (CCC) , 44 F.3d 73-74 (2d Cir. 1994) (discussing whether the Red Book, which was adopted by States as the legal standard for car valuations, passed into the public domain by virtue of its reference into the law) :
The [public domain] argument is that the public must have free access to the content of the laws that govern it ”

“ Manchester, 128 U.S. 244, 253 (1888) (holding judicial opinions uncopyrightable because they are created by judges paid from the public's coffers) ; see also Wheaton v. Peters, 33 U.S. 591, 668 (1834) (same) . ↑ This rationale is also applicable to statutes created by legislators paid by public funds. ”