Who Owns the Law?
A city building code can be owned by a private organization, according to a panel of one federal circuit court. In Veeck v. Southern Building Code Congress International Inc., over a strong dissent, two judges of the U.S. Court of Appeals for the Fifth Circuit found copyright infringement where an individual posted a privately developed model building code on the Internet after the code had been adopted into law by several municipalities.
Rejecting defenses of fair use, merger, due process, waiver, freedom of speech (First Amendment) and copyright misuse, the majority found that the model code did not enter the public domain when enacted into law. The court went on to find that the enacted codes were sufficiently available to the public, either through government offices or by purchase from the copyright owner, that the public was not denied reasonable access to and knowledge of the law due to the copyright claimed in the work.
Other courts have found that there can be no copyright in judicial opinions and legislative enactments. In 1888, the Supreme Court held in Banks v. Manchester that a private compilation of court decisions was in the public domain since judicial opinions are issued by publicly paid judges and the public has an overriding interest in free access to the law. Similarly, in 1898, Supreme Court Justice Harlan, sitting as a circuit judge in Howell v. Miller, found that copyright could not exist in statutes, even if privately printed.
More recently, in the 1980 decision in Building Officials and Code Adm. V. Code Tech., Inc., the First Circuit expressed doubt that a copyright could be enforced in a privately created building code once that code was adopted into law.
The Fifth Circuit panel attempted to distinguish the prior Supreme Court and circuit decisions primarily by reliance upon: (1) a case holding that "Red Book" car valuations were entitled to copyright protection even though they were used for calculating insurance payments under the laws of some states; and (2) a decision holding that an American Medical Association's coding system required for compliance with certain government benefits regulations (Medicare and Medicaid) was entitled to copyright. It would not appear either of those prior decisions supports the Fifth Circuit's view.
Neither the "Red Book" nor the AMA's medical coding system were published with the intent that they be adopted into law. By contrast, the model building code in Veeck was published with exactly that purpose in mind. In addition, the model building code was not a mere reference tool, as are the "Red Book" and AMA coding system, but is instead the embodiment of the law.
As noted by the dissent, "[T]here is only one accurate way to express a law . . . . the exact words of a statute govern its interpretation." When promulgated the law merges with the ideas it embodies and can no longer be separated. In that every citizen has a right to know the law, it is antithetical to our legal system for the substance of the law to be owned and monopolized by a private interest. Nevertheless, the majority decision in Veeck stands as precedent in the Fifth Circuit for the proposition that the law may be owned by a private company.