New Yorkers For Fair Use

© Copyright for the Digital Millennium
Public laws owned by the public? Think again, copyright rulings show
Coleman College

Public laws owned by the public? Think again, copyright rulings show

By Kathryn Balint 
STAFF WRITER

May 13, 2001

Who owns the law?

Not the public, at least in the latest court battle over copyright infringement on the Internet.

Turns out, the text of the public laws in question belongs to a private, but influential, organization. That's what a federal judge and an appeals court say.

This is one online copyright infringement lawsuit that promises to affect more lives than the record industry's high-profile dispute with Napster's music-sharing service.

Government at the local, state and federal levels increasingly is enacting laws that have been written and copyrighted by private entities.

Consider:

 California and 47 other states have building laws that are copyrighted by one of three nonprofit organizations.

 The federal government requires U.S. physicians to use a medical billing code that's owned by the American Medical Association.

 The National Fire Protection Association's 900-page electrical code is in force, in one form or another, in all 50 states, plus Puerto Rico and Guam.

"By its very nature, the law belongs to the public," said Malla Pollack, associate professor of law at Northern Illinois University.

"For some reason, the U.S. courts do not seem to take seriously the public domain."

The question of who owns the law arose from a homespun Web site operated out of Denison, Texas, a little more than an hour's drive from Dallas.

It started when retired airline pilot Peter Veeck, 60, set out to renovate a dilapidated building in downtown Denison.

He paid $300 for a copy of the region's building code, 1,000 pages of construction laws that dictate everything from how wide a door must be to how far apart nails must be spaced.

Veeck -- "it rhymes with wreck," he says, borrowing a line from late White Sox owner Bill Veeck -- figured he'd do everyone a favor and post the building code on his Web site.

No sooner did he get the code up on the Net than he received a threatening e-mail from a lawyer.

The lawyer claimed a nonprofit group by the name of the Southern Building Code Congress International Inc. owned the copyright to that set of laws.

"Copyright?" Veeck asked. "How can you have a copyright on the law? I was brought up in school to believe the law was public domain."

Veeck hired attorney Eric Weisberg, who thought the case would be a slam dunk.

"As far as I'm concerned," Weisberg recalls telling his client, "there can't be a copyright of the law."

That was three years ago. Since then, a federal judge and two out of three judges sitting on an appeals panel have ruled that a private organization can, and does, own the copyright to the local building laws.

"It's counterintuitive," Weisberg said. "It's outrageous."

Not to Robert J. Veal, who represents the Southern Building Code Congress. He said his client has been ripped off every bit as much as the music recording companies that are suing Napster.

"It's all the same," Veal said. "They've done the creative work, and now someone says, 'I ought to be able to take it because it's there.' "

Private organizations have been dealing in governmental regulations for almost 75 years.

Starting in the late 1920s, contractors and other construction professionals worried that government was lax about updating building codes.

So they formed nonprofit organizations, such as the Southern Building Code Congress, to draft the kind of highly technical, up-to-date regulations they felt were needed to ensure public safety.

They encouraged state and local governments to adopt the regulations, at no charge.

The catch?

The organizations retained the copyright to the text. Even the government wasn't authorized to reprint the exact wording in its official code books.

Anyone wanting a copy of the law had to -- and still has to -- buy it from the organization.

Try finding California's building code on the state's Web site.

"The first thing people do is go online to look for Title 24," said state code analyst Michael Nearman, referring to the state's building code by its official number.

"They find Title 21, 22, 23 and 25 and go 'Hmmm.' Title 24 is just not there."

One of the most common questions he gets is "Why isn't it on the Web?"

The answer, of course, is that California doesn't own the copyright to that particular law.

"We explain to people, and they get real upset about it in most cases because they feel like they're paying for this in taxes, so why should they pay for it again?" Nearman said.

If it's any consolation, even the state has to buy its own copies, he said.

The building code isn't cheap. A printed copy costs $738. The CD-ROM version runs $250, but it excludes plumbing and electrical laws.

Many libraries and building departments -- like the city of San Diego's, for example -- provide a copy for public viewing.

Mark Johnson of the International Conference of Building Officials, the regulation-writing body that California relied on for its building laws, said that without the nonprofit organizations, "we'd basically have dilapidated, outdated building codes, because nobody would do it for free."

"All you have to do is look at earthquakes in Turkey and India vs. our Northridge quake to see how well our system has worked," Johnson said.

The Veeck case personifies the intersection where private copyrights and the public domain collide.

Veeck has asked all 18 judges of the 5th U.S. Circuit Court of Appeals to reconsider his arguments.

More than three dozen law professors, from California to Connecticut, have weighed in with briefs on his side.

"Every time I bring up this case to other academic professionals, they all say that such a ruling is impossible," said Pollack, the law professor.

"But such a ruling happened."

She thinks the case could end up in the U.S. Supreme Court because, she says, it raises fundamental issues about due process.

The way things stand, Pollack said, citizens have no choice but to pay a private organization to get a copy of a law they're required to obey.

"Basically, government is agreeing to allow a private party to make as much money as it can by picking its own price and selling copies of the law to people who need them," Pollack said.

The Southern Building Code Congress said in court papers it expects to sell $6.7 million worth of building codes over the next 10 years.

Like it or not, more and more laws are becoming private property.

Veal, the Southern Building Code Congress attorney, noted that three years ago the Office of Management and Budget directed all federal agencies to incorporate privately developed regulations "whenever practicable and appropriate" to cut the government's cost of developing its own standards.

"The people who are involved in this case, on both sides, I think are people who are strongly interested in what's for the public good," Veal said.

"It's just a matter of different people having different ideas of how the public should be served."

Copyright 2001 Union-Tribune Publishing Co.