Veeck v. Southern Building Code Congress International, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________

No. 99-40632
_______________________

PETER VEECK, doing business as
Regional Web,

Plaintiff/Counter Defendant-Appellant,

versus

SOUTHERN BUILDING CODE CONGRESS
INTERNATIONAL, INC.,

Defendant/Counter Claimant-Appellee.

_________________________________________________________________

Appeals from the United States District Court
for the Eastern District of Texas
_________________________________________________________________

June 7, 2002

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,
PARKER, DENNIS and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The issue in this en banc case is the extent to which a

private organization may assert copyright protection for its model

codes, after the models have been adopted by a legislative body and

become “the law”. Specifically, may a code-writing organization

prevent a website operator from posting the text of a model code

where the code is identified simply as the building code of a city

that enacted the model code as law? Our short answer is that as
law, the model codes enter the public domain and are not subject to

the copyright holder’s exclusive prerogatives. As model codes,

however, the organization’s works retain their protected status.

BACKGROUND1

Peter Veeck individually operates “Regional Web”

(), a non-commercial website that

provides information about north Texas. Sometime in 1997, Veeck

decided to post on Regional Web the local building codes of Anna

and Savoy, two small towns in north Texas that had adopted the 1994

edition of the Standard Building Code written by appellee, Southern

Building Code Congress International, Inc. (“SBCCI”). Veeck made

a few attempts to inspect several towns’ copies of the Building

Code, but he was not able to locate them easily. Eventually, Veeck

purchased the 1994 model building codes directly from SBCCI; he

paid $72.00 and received a copy of the codes on disk. Although the

software licensing agreement and copyright notice indicated that

the codes could not be copied and distributed, Veeck cut and pasted

their text onto his Regional Web. Veeck’s website did not specify

that the codes were written by SBCCI. Instead, he identified them,

correctly, as the building codes of Anna and Savoy, Texas.

The author of the codes, SBCCI, is a non-profit

organization consisting of approximately 14,500 members from

government bodies, the construction industry, business and trade

1
The facts stated here are undisputed.

2
associations, students, and colleges and universities. Since 1940,

SBCCI’s primary mission has been to develop, promote, and

promulgate model building codes, such as the Standard Plumbing

Code, the Standard Gas Code, the Standard Fire Prevention Code, and

the Standard Mechanical Code. SBCCI encourages local government

entities to enact its codes into law by reference, without cost to

the governmental entity. No licensing agreements are executed in

connection with legislative adoption, nor does SBCCI keep track of

the entities that have adopted its codes. Although SBCCI is a non-

profit organization, its annual budget, exceeding $9 million,

derives in part from sales of its model codes and is used to fund

continuing activities. There are no restrictions or requirements

on membership in SBCCI, but non-members are charged considerably

more for copies of its codes than are members.

While SBCCI continues to assert its copyright

prerogatives -- exclusively to publish the codes and license their

reproduction and distribution -- even as to codes that have been

adopted by local entities, the organization insists that it grants

liberal permission for copying. To support this contention, SBCCI

offered in evidence several dozen letters of permission written to

entities as diverse as book publishers, seminar providers, and

municipal inspection agencies. Notably, each permit letter

carefully circumscribed the amount of copying allowed.

SBCCI’s generosity did not extend to Veeck’s public-

service posting of the Anna and Savoy building codes on his

3
website. The organization demanded that he cease and desist from

infringing its copyrights. Veeck filed a declaratory judgment

action seeking a ruling that he did not violate the Copyright Act.

SBCCI counterclaimed for copyright infringement, unfair competition

and breach of contract. Both parties moved for summary judgment on

the copyright infringement issue.

Finding no genuinely disputed material facts, the

district court granted summary judgment in favor of SBCCI,

including a permanent injunction and monetary damages. On appeal,

a divided panel of this court upheld SBCCI’s copyrights in the

municipal building codes posted by Veeck, and it rejected his

defenses to infringement based on due process, merger, fair use,

copyright misuse and waiver.

We elected to rehear this case en banc because of the

novelty and importance of the issues it presents.

DISCUSSION2

As the organizational author of original works, SBCCI

indisputably holds a copyright in its model building codes. See 17

U.S.C. § 102(a). Copyright law permits an author exclusively to

make or condone derivative works and to regulate the copying and

2
We review the district court’s grant of summary judgment de novo.
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); Fed.
R. Civ. P. 56(c). At the summary judgment stage, a court may not weigh the
evidence or evaluate the credibility of witnesses, and all justifiable inferences
will be made in the nonmoving party’s favor. Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14 (1986)). The district
court drew some inferences from the facts, however, regarding the impact of
copyrightability on SBCCI’s operations that, if material, should not have been
decided without a trial. We find it unnecessary to reach those issues.

4
distribution of both the original and derivative works. 17 U.S.C.

§ 106. The question before us is whether Peter Veeck infringed

SBCCI’s copyright on its model codes when he posted them only as

what they became -- building codes of Anna and Savoy, Texas -- on

his regional website. Put otherwise, does SBCCI retain the right

wholly to exclude others from copying the model codes after and

only to the extent to which they are adopted as “the law” of

various jurisdictions?

The answer to this narrow issue seems compelled by three

sources: the Supreme Court’s holding that “the law” is not

copyrightable; alternatively, the Copyright Act’s exclusion from

its scope of “ideas” or “facts”; and the balance of caselaw.

I. The Supreme Court’s View

Excluding “the law” from the purview of the copyright

statutes dates back to this nation’s earliest period. In 1834, the

Supreme Court interpreted the first federal copyright laws and

unanimously held that “no reporter has or can have any copyright in

the written opinions delivered by this Court. . .” Wheaton v.

Peters, 33 U.S. (8 Pet.) 591, 668 (1834). The case arose when one

of the Court’s official reporters was asserting copyright

protection for his annotated compilations of Supreme Court

opinions. The Court distinguished between the reporter’s

individual work and the Justices’ opinions. The Court’s rejection

of copyright for judicial opinions paralleled the principle --

recognized by attorneys for both parties -- that “[s]tatutes were

5
never copyrighted.”3 Based on the acknowledged and incontestable

analogy with legislative acts, Wheaton held unanimously that “the

law” in the form of judicial opinions may not be copyrighted.

The same broad understanding of what constitutes “the

law” for copyright purposes underlies the Court’s later decision in

Banks v. Manchester, 128 U.S. 244, 9 S.Ct. 36 (1888). The Court

there denied a copyright to a court reporter in his printing of the

opinions of the Ohio Supreme Court. The Court first noted that

whatever work the judges perform in their official capacity cannot

be regarded as authorship under the copyright law. As a question

of “public policy,” the Court stated that,

there has always been a judicial consensus,
from the time of the decision in the case of

3
See Precis of Argument by Counsel for Wheaton [pet’r], 33 U.S. (8
Pet.) at 615. Wheaton acknowledged, even while arguing that judicial opinions
could be copyrighted, that “it would be absurd, for a legislature to claim the
copyright; and no one else can do it, for they are the authors, and cause them
to be published without copyright. . . . Statutes were never copyrighted.” Id.
Further, “it is the bounden duty of government to promulgate its statutes in
print . . .” Id. at 616.

Counsel for Peters, the respondent, emphasized the governing policy
that “all countries . . . subject to the sovereignty of the laws” hold the
promulgation of the laws, from whatever source, “as essential as their
existence.” Id. at 618-19. Peters’s brief continues:

It is, therefore, the true policy, influenced by the
essential spirit of the government, that laws of every
description should be universally diffused. To fetter
or restrain their dissemination, must be to counteract
this policy; to limit, or even to regulate it, would, in
fact, produce the same effect.

. . .

If either statutes or decisions could be made private
property, it would be in the power of an individual to
shut out the light by which we guide our actions.

Id. at 620.

6
 Wheaton v. Peters, 8 Pet. 591, that no
copyright could, under the statutes passed by
Congress, be secured in the products of the
labor done by judicial officers in the
discharge of their judicial duties. The whole
work done by the judges constitutes the
authentic exposition and interpretation of the
law, which, binding every citizen, is free for
publication to all, whether it is a
declaration of unwritten law, or an
interpretation of a constitution or statute.

Banks, 128 U.S. at 253, 9 S.Ct. at 40. (emphasis added). At this

point, Banks relied upon a decision of the Massachusetts Supreme

Judicial Court, which stated,

[I]t needs no argument to show that justice
requires that all should have free access to
the opinions, and that it is against sound
public policy to prevent this, or to suppress
and keep from the earliest knowledge of the
public the statutes, or the decisions and
opinions of the Justices.

Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (1886). The court in

Nash further observed that a legislature likewise could not deny

public access to statutes.

Banks represents a continuous understanding that “the

law,” whether articulated in judicial opinions or legislative acts

or ordinances, is in the public domain and thus not amenable to

7
copyright.4 Modern decisions have followed suit.5 Significantly,

the 1976 Copyright Act specifically denies protection to federal

statutes and regulations. 17 U.S.C. § 105. Given the state law

foundation of Banks and its progeny, there is no reason to believe

that state or local laws are copyrightable. See generally L. Ray

Patterson & Craig Joyce, Monopolizing the Law: The Scope of

Copyright Protection for Law Reports and Statutory Compilations, 36

U.C.L.A. L. REV. 719, 751-58 (1989); 1 MELVILLE B. NIMMER & DAVID

NIMMER, NIMMER ON COPYRIGHT § 5.06 [c] at 5-92 (2000) (“state statutes,

no less than federal statutes, are regarded as being in the public

domain”); 1 PATRY, COPYRIGHT LAW AND PRACTICE 351, 357 (1994).

As governing law, pursuant to Banks, the building codes

of Anna and Savoy, Texas cannot be copyrighted.

SBCCI and its numerous amici6 must limit or circumvent

the Banks line of cases in order to prevail. Initially, SBCCI

4
In Davidson v. Wheelock, for example, the court stated that a
compiler of state statutes “could obtain no copyright for the publication of the
laws only; neither could the legislature confer any such exclusive privilege upon
him.” Davidson v. Wheelock, 27 F. 61, 62 (D.Minn. 1886). More famously, Justice
Harlan, riding circuit, denied an injunction sought for the compiler of Michigan
statutes, holding that “no one can obtain the exclusive right to publish the laws
of the state in a book prepared by him.” Howell v. Miller, 91 F. 129, 137 (6th
Cir. 1898).
5
Harrison Co. v. Code Revision Commission, 260 S.E.2d 30, 34 (Ga.
1979); State of Ga. v. The Harrison Co., 548 F.Supp. 110, 114-15 (N.D. Ga. 1982),
vacated per stipulation, 559 F.Supp. 37 (N.D. Ga. 1983).
6
The amici supporting SBCCI’s position include Building Officials and
Code Administrators International (BOCA), International Code Council,
International Conference of Building Officials, American Medical Association,
American National Standards Institute (ANSI), American Society of Association
Executives (ASAE), American Society of Heating, Refrigerating and
Air-Conditioning Engineers (ASHRAE), American Society of Mechanical Engineers
(ASME), National Fire Protection Association (NFPA), Texas Municipal League, and
Underwriters Laboratories, Inc. (UL).

8
divides Banks into two holdings and concludes that either holding

must be squared with the policies and purposes of copyright law.

This not insubstantial mode of analysis must be carefully reviewed.

The first holding of Banks is said to deny copyright to

judicial opinions because judges, whose salaries are paid by the

government, cannot claim to be “authors” of their official works.

SBCCI contends that this discussion shows only that judges have no

need of the Copyright Act’s economic incentives in order to author

judicial opinions. Banks, it is implied, articulates a utilitarian

rationale for denying copyright protection to judicial opinions.

SBCCI contrasts government employees with the private “authors” of

model codes who allegedly depend on copyright incentives in order

to perform their public service. SBCCI concludes that this “prong”

of Banks does not apply to private code-writing organizations whose

work has been adopted or incorporated into statutes, ordinances, or

government regulations. Two courts, in addition to the panel that

originally heard this case, have identified the consideration of

authorship incentives as a “holding” of Banks. See Practice

Management Info. Corp. v. American Medical Ass’n, 121 F.3d 516, 518

(9th Cir. 1997), opinion amended by 133 F.3d 1140 (9th Cir. 1998);7

County of Suffolk v. First American Real Estate Solutions, 261 F.3d

179, 194 (2d Cir. 2001).

7
Practice Management declares, “The copyright system’s goal of
promoting the arts and sciences by granting temporary monopolies to
copyrightholders was not at stake in Banks because judges’ salaries provided
adequate incentive to write opinions.” Id.

9
 The second “holding” of Banks, which requires “the law”

or its exposition to be “free for publication to all,” is

recharacterized by SBCCI as a “due process” argument. That

argument devolves into a factual question concerning public

“access” to the law. Because SBCCI contends that there is no

dispute about the adequacy of public “access” to its model codes,

after their enactment as the building codes of Anna and Savoy,

Banks is inapplicable.

The “dual holding” analysis seems to foist on Banks a

rationale that the Supreme Court never explicitly articulated.

Banks, however, does not bifurcate its holding based on the

particular authors’ need of the Copyright Act’s incentives or a

factual calculus concerning the “adequacy” of public access to the

law. Instead, Banks declares at the outset of its discussion that

copyright law in the United States is purely a matter of statutory

construction. See Banks, 128 U.S. at 251, 9 S.Ct. at 39. In the

next paragraph, the Court points out that the court reporter was

not the statutory “author” of the judicial decisions. Then, the

Court states that

In no proper sense can the judge who, in his
judicial capacity, prepares the opinion or
decision, the statement of the case, and the
syllabus, or head-note, be regarded as their
author or their proprietor, in the sense of
[the copyright statute] . . .

Judges, as is well understood, receive from
the public treasury a stated annual salary,
fixed by law, and can themselves have no
pecuniary interest or proprietorship, as

10
 against the public at large, in the fruits of
their judicial labors.

128 U.S. at 253, 9 S.Ct. at 40. The Court then broadly defines the

judges’ official work and states that as a matter of public policy

and judicial consensus, “no copyright could, under the statutes

passed by Congress, be secured in the products of the labor done by

judicial officers in the discharge of their official duties.” This

paragraph of Banks climaxes with the explanation:

The whole work done by the judges constitutes
the authentic exposition and interpretation of
the law, which, binding every citizen, is free
for publication to all, whether it is a
declaration of unwritten law, or an
interpretation of a constitution or statute.
Id. at 253-54 [citing Nash v. Lathrop].

There is simply no independent holding in Banks that

judges are not “authors” under the copyright law because, as public

officials, they do not need the “incentives” that copyright law

affords in order to write opinions. Instead, Banks refers to the

source of the judges’ salary in order to explain that it is the

public at large, not the judges, who have the “pecuniary interest

or proprietorship” in “the fruits of their judicial labors.” The

whole of those judicial labors, as Banks immediately defines them,

“constitutes the authentic exposition and interpretation of the

law,” which is “free for publication to all . . .” Id.8

8
If there were an independent holding in Banks relying on the fact
that judges are paid by the public, it was rejected by the Court itself one month
later, when the Court ruled that a court reporter, notwithstanding that he was
a state employee, could assert copyright in all of his compilation of judicial
opinions except the opinions themselves. Callaghan v. Myers, 128 U.S. 645, 9
S.Ct. 617 (1888).

11
 Moreover, when viewed in light of Wheaton, the last case

relied on by Banks’s analysis, the argument for bifurcation is

seriously weakened. Wheaton’s holding, as has been shown, derives

from an analogy between judicial opinions and legislative acts as

together constituting “the law,” which is not subject to copyright.

The origin of the bifurcated holding interpretation of

Banks seems to lie in the First Circuit’s thoughtful opinion in

Building Officials and Code Adm. v. Code Technology, Inc., 628 F.2d

730 (1st Cir. 1980), but the First Circuit does not endorse

bifurcation. In this opinion, which will be discussed further

infra, the First Circuit considered the argument of BOCA, the model

code writer, urging copyright protection for a model building code

similar in origin and purpose to the one before us. BOCA’s

argument, the court said, “implies that the rule of Wheaton v.

Peters was based on the public’s property interest in work produced

by legislators and judges, who are, of course, government

employees.” BOCA, 628 F.2d at 734.

While acknowledging that this interpretation is “not

without foundation,” the First Circuit cautioned: “But BOCA’s

argument overlooks another aspect of the ownership theory discussed

in these cases.” Id. BOCA then identifies the real premises of

Banks and related cases: the “metaphorical concept of citizen

authorship” of the law, together with “the very important and

practical policy that citizens must have free access to the laws

which govern them.” Id. BOCA cited the authorship rationale for

12
Banks only to find it unsatisfactory. In our view, BOCA was

correct.

Only by bifurcating Banks can SBCCI achieve its purpose

of claiming authorship of “the law” and proprietary rights in its

codes that have been enacted into law. However, the acceptance of

SBCCI’s and the dissent’s theory, that non-governmental employees

who draft model statutes or regulations may be entitled to

copyright protection, raises troubling issues. The complexities of

modern life and the breadth of problems addressed by government

entities necessitate continuous participation by private experts

and interest groups in all aspects of statutory and regulatory

lawmaking. According to SBCCI, a utilitarian test should be

invoked to determine which organizations “need” the incentives

provided by the Copyright Act in order to perform the public

service of drafting specialized statutes, ordinances or

regulations. Alternatively, perhaps SBCCI and the dissent intend

that whenever any private “author” finds his or her proposal

adopted verbatim in law, copyright protection may be claimed.9 As

an example, three law professors have taken credit for drafting a

recent federal statute on supplemental federal court jurisdiction.

See 28 U.S.C. § 1367; Christopher M. Fairman, Abdication to

9
One of SBCCI’s amici argues that this is an unrealistic threat,
since, inter alia, the run-of-the-mill lobbyist or good citizen involved in the
legislative process does not assert a copyright. That these “authors” may be
more generous, or less sophisticated, than the large and well-funded code-writing
organizations before us hardly furnishes a reason to approve an open-ended test
of authorship of the law.

13
Academia: The Case of the Supplemental Jurisdiction Statute, 28

U.S.C. § 1367, 19 SETON HALL LEGIS. J. 157 (1994). Under SBCCI’s

reasoning, it is likely that these professors, had they so desired,

could have asserted a copyright in their “model supplemental

jurisdictional provision.”10 SBCCI offers no outer limit on claims

of copyright prerogatives by nongovernmental persons who contribute

to writing “the law.”

Not only is the question of authorship of “the law”

exceedingly complicated by SBCCI’s and the dissent’s position, but

in the end, the “authorship” question ignores the democratic

process. Lawmaking bodies in this country enact rules and

regulations only with the consent of the governed. The very

process of lawmaking demands and incorporates contributions by “the

people,” in an infinite variety of individual and organizational

capacities. Even when a governmental body consciously decides to

enact proposed model building codes, it does so based on various

legislative considerations, the sum of which produce its version of

“the law.” In performing their function, the lawmakers represent

the public will, and the public are the final “authors” of the law.

The BOCA decision put it thus:

The citizens are the authors of the law, and
therefore its owners, regardless of who

10
We are not stating or holding that the authorship of government works
never presents a legitimate issue of copyright. On the contrary, the Copyright
Act carefully defines the extent to which federal government employees and
contractors can obtain copyright protection. But these provisions have never
been held to supersede Banks’s holding that “the law” is in the public domain.

14
 actually drafts the provisions, because the
law derives its authority from the consent of
the public, expressed through the democratic
process.

628 F.2d at 734.11 This “metaphorical concept of citizen

authorship” together with the need for citizens to have free access

to the laws are the ultimate holding of Banks. Id.

BOCA described free access as a policy “based on the

concept of due process,” the people’s right to know what the law

requires so that they may obey it and avoid its sanctions. SBCCI

and the dissent contend that this “due process” reasoning involves

nothing more than the factual issue of “sufficient” public access

to the building codes of Anna and Savoy. Since a copy of the codes

is available for inspection and individual copying in a public

office, SBCCI contends that the obligations of due process are

fulfilled.

We disagree that the question of public access can be

limited to the minimum availability that SBCCI would permit. Banks

does not use the term “due process.” There is also no suggestion

that the Banks concept of free access to the law is a factual

determination or is limited to due process, as the term is

understood today. Instead, public ownership of the law means

precisely that “the law” is in the “public domain” for whatever use

11
Technically, citizen “ownership” of the law might suggest that local
governmental entities, as public representatives, could prevent copying of the
law. As Goldstein notes, the decisions holding that statutes are in the public
domain prevent any such misunderstanding. 1 GOLDSTEIN, COPYRIGHT, § 2.48 at n.42.

15
the citizens choose to make of it. Citizens may reproduce copies

of the law for many purposes, not only to guide their actions but

to influence future legislation, educate their neighborhood

association, or simply to amuse. If a citizen wanted to place an

advertisement in a newspaper quoting the Anna, Texas building code

in order to indicate his dissatisfaction with its complexities, it

would seem that he could do so. In our view, to say, as Banks

does, that the law is “free for publication to all” is to expand,

not factually limit, the extent of its availability.

Moreover, as the BOCA decision observed, it is difficult

to reconcile the public’s right to know the law with the statutory

right of a copyright holder to exclude his work from any

publication or dissemination. SBCCI responds that due process must

be balanced against its proprietary rights and that the fair use

doctrine as well as its honorable intentions will prevent abuse.

Free availability of the law, by this logic, has degenerated into

availability as long as SBCCI chooses not to file suit.12

For these reasons, we reject SBCCI’s deconstruction of

Banks into merely utilitarian and factual issues. Instead, we read

Banks, Wheaton, and related cases consistently to enunciate the

principle that “the law,” whether it has its source in judicial

12
SBCCI does not permit governmental entities to publish its model
codes when they are enacted. Instead, it permits their adoption by reference and
furnishes a copy of the adopted code to the entity. SBCCI also generously allows
that if a governmental entity were to publish the building code on an Internet
site to meet its due process obligation, that would be a fair use. But when the
North Carolina Building Officials were permitted to publish a model code on their
non-public access website, SBCCI expressly reserved its rights.

16
opinions or statutes, ordinances or regulations, is not subject to

federal copyright law.13

To sum up this section, we hold that when Veeck copied

only “the law” of Anna and Savoy, Texas, which he obtained from

SBCCI’s publication, and when he reprinted only “the law” of those

municipalities, he did not infringe SBCCI’s copyrights in its model

building codes. The basic proposition was stated by Justice

Harlan, writing for the Sixth Circuit: “any person desiring to

publish the statutes of a state may use any copy of such statutes

to be found in any printed book . . .” Howell v. Miller, 91 F.

129, 137 (6th Cir. 1898).14 See Jerry E. Smith, Government

Documents: Their Copyright and Ownership, 22 Copyright Symposium

147, 174 (ASCAP 1977), reprinted in 5 TEX. TECH L. REV. 71, 92

(1973).

II. The Copyright Act

A. The Merger Doctrine

As we earlier stated, SBCCI is the “author” of model

building codes that, qua model building codes, are facially

copyright-protected. This is true even if Banks places the

building codes of Anna and Savoy, and other governmental entities

13
What constitutes “the law” when a governmental entity adopts or
incorporates by reference an author’s copyrightable work will be considered
infra, Part III.
14
Our decision might well be the opposite, if Veeck had copied the
model codes as model codes, or if he had indiscriminately mingled those portions
of “the law” of Anna and Savoy adopted by their town councils with other parts
of the model codes not so adopted.

17
that adopted part or all of SBCCI’s model codes, in the public

domain. But if the holding of Banks fails, Veeck alternatively

asserts a defense under the Copyright Act to the protection of the

model codes after they have been enacted into positive law. Once

adopted, he asserts, the model codes become “facts” that are not

protected under the Copyright Act. Further, because there is only

one way to express the meaning of the building codes, the “idea”

embodied in the law merges with SBCCI’s expression, and at that

point, renders copyright protection unavailable.

It is not the sole purpose of copyright law to secure a

fair return for an author’s creative labor. Under the

Constitution,

The primary objective of copyright is not to
reward the labor of authors but ‘[to] promote
the Progress of Science and the useful Arts.’”
Article I, Sec. 8, clause 8 [U.S.
Constitution]. To this end, copyright law
assures authors the right to their original
expression, but encourages others to build
freely upon the ideas and information conveyed
by a work. This principle, known as the
idea/expression or fact/expression dichotomy,
applies to all works of authorships.

Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

349, 111 S.Ct. 1282, 1289-90 (1991). The statute excludes from

copyright protection ideas, procedures, processes, systems methods

of operation, or information in the public domain. See 17 U.S.C.

§ 102(b); Feist Publications, 499 U.S. at 350, 111 S.Ct. at 1290

(citation omitted); Harper & Row Publishers, Inc. v. Nation

Enters., 471 U.S. 539, 547-48, 105 S.Ct. 2218, 2223 (1985). If an

18
idea is susceptible to only one form of expression, the merger

doctrine applies and § 102(b) excludes the expression from the

Copyright Act. As the Supreme Court has explained it, this

“idea/expression dichotomy strike[s] a definitional balance between

the First Amendment and the Copyright Act by permitting free

communication of facts while still protecting an author’s

expression.” Harper & Row, 471 U.S. at 556, 105 S.Ct. at 2228.

Veeck copied the building code of the towns of Anna and

Savoy, Texas, based on their adoption of a version of the SBCCI

model code. The codes are “facts” under copyright law. They are

the unique, unalterable expression of the “idea” that constitutes

local law. Courts routinely emphasize the significance of the

precise wording of laws presented for interpretation. See, e.g.,

Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,

108, 100 S.Ct. 2051, 2056 (1980) (“[T]he starting point for

interpreting a statute is the language of the statute itself.”).

Judge Little, dissenting from the panel opinion in this case,

observed that

. . . the merger doctrine is especially
appropriate because other methods of
expressing the idea are foreclosed. [citation
omitted] An individual wishing to publish the
text of a law cannot develop his own, unique
version and still publish an authoritative
copy.

Veeck v. Southern Bldg. Code Cong. Int’l, 241 F.3d 398, 416 (5th

Cir. 2001) (Little, J., dissenting). It should be obvious that for

copyright purposes, laws are “facts”: the U.S. Constitution is a

19
fact; the Federal Tax Code and its regulations are facts; the Texas

Uniform Commercial Code is a fact. Surely, in principle, the

building codes of rural Texas hamlets are no less “facts” than the

products of more August legislative or regulatory bodies. While

the Supreme Court has not stated directly that laws are “facts,” it

has broadly observed that, as with census data, “the same is true

of all facts -- scientific, historical, biographical and news of

the day. ‘They may not be copyrighted and are part of the public

domain available to every person.’” Feist, 499 U.S. at 348, 111

S.Ct. at 1289.

Emphasizing not the language of § 102(b), but the

“policy” of the merger doctrine, SBCCI contends that merger poses

no bar to copyright protection here. The idea/expression dichotomy

was enacted into law by Congress to “balance [] the competing

concerns of providing incentive to authors to create and foster[]

competition in such creativity.” Kern River Gas Transmission Co.

v. The Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).15

Veeck’s merger argument ignores the goal of fostering competition

in creativity. SBCCI thus asserts that “merger would only apply in

this case if a subsequent author seeking to create a building code

for Anna or Savoy would have to use the same expression to convey

the idea.” SBCCI supplemental en banc brief at 7. This argument

effectively converts the merger doctrine from a limit on

15
See id. at 1460 (proposed route for a pipeline approved by the
Federal Energy Regulatory Commission was an uncopyrightable “idea.”)

20
copyrightability into a mere defense against infringement based on

the identity of the author. In our view § 102(b) does foster the

creativity that SBCCI applauds, but it does so by permitting the

free flow of information in facts and ideas from their emergence,

rather than as a defense to infringement claims. See Kern River at

1460; Mason v. Montgomery Data, Inc., 967 F.2d 135, 138 n.5 (5th

Cir. 1992) (“Mason argues that application of the merger doctrine

does not render a work uncopyrightable, but rather prevents a

finding of infringement of an otherwise copyrightable work. But

this court has applied the merger doctrine to the question of

copyrightability.”).

SBCCI and the dissent next urge the inapplicability of

the merger doctrine because there are many possible ways to express

model codes: both the multiplicity of building standards and the

variety of ways to express those standards compel the conclusion

that the ideas have not merged with their expression. Cf. Mason,

967 F.2d at 139 (rejecting merger because the idea embodied in the

author’s maps can be expressed in a variety of ways). What SBCCI

and the dissent ignore, however, is the graphic merger of its model

building codes with “the law” as enacted by Anna and Savoy, Texas.

Veeck copied from SBCCI’s model codes, 1994 edition, because those

codes were transformed into the “fact” and “idea” of the towns’

building codes. Veeck could not express the enacted law in any

other way.

21
 The final argument deployed by SBCCI and the dissent

casts the merger doctrine as an inherent balancing test in which

courts must reconcile the policies underlying the Copyright Act

with the public interest in the free flow of information and ideas.

Compare CCC Info Serv. Inc. v. McLean Hunter Market Reports, Inc.,

44 F.3d 61, 68 (2nd Cir. 1994) (interpreting Second Circuit’s

balancing test). It is true that where the line is unclear between

expression and facts, procedures, processes, methods of operation,

or information in the public domain, a court considering the

applicability of § 102(b) must recur to the statute’s underlying

policy. See, e.g., Feist, 499 U.S. at 361-64, 111 S.Ct. at 1295-97

(determining copyrightability of compilations of facts); Mason, 967

F.2d at 139 (copyrightability of expression in maps). This case,

however, is not close. The building codes of Anna and Savoy, Texas

can be expressed in only one way; they are facts. Veeck placed

those facts on his website in precisely the form in which they were

adopted by the municipalities.16 When the § 102(b) dichotomy is

clear, judges are not permitted to substitute policy choices for

the legislature’s determination.

We emphasize that in continuing to write and publish

model building codes, SBCCI is creating copyrightable works of

authorship. When those codes are enacted into law, however, they

16
For the first time, in this court, SBCCI alleges that Veeck did not
exactly copy the ordinances, because in the course of their adoption, the towns
rejected certain parts of the SBCCI model codes. There is no evidence in the
district court record to sustain this contention.

22
become to that extent “the law” of the governmental entities and

may be reproduced or distributed as “the law” of those

jurisdictions.

B. Other Provisions17

SBCCI’s amici make much of provisions of the Copyright

Act that, they contend, should protect SBCCI’s copyrights from

“appropriation” by local government entities. Section 105 of the

Act, taken together with the definition of “works of the

government,” denies copyright protection to official works of the

United States Government, while reserving the possibility that

government employees and contractors may obtain, or transfer to the

government, copyrights for non-official works. 17 U.S.C. §§ 105,

101. On its face, these provisions say nothing about the

relationship between non-federal government entities and copyright

holders. Moreover, they have never been held inconsistent with

Banks or with the merger doctrine.

Section 201(e) of the Act reflects Congress’s intention

to protect copyrights from involuntary appropriation by government

entities. 17 U.S.C. § 201(e). This is not, however, a “takings”

case, not least because SBCCI urged localities to adopt its model

codes. The issue in the case is not the voluntariness of the

17
Veeck also raised infringement defenses based on his fair use of the
model codes or SBCCI’s waiver of its copyrights. It is unnecessary to reach
these issues.

23
appropriation but the legal consequences flowing from the

permission that SBCCI gave.

III. The Caselaw; Model Codes Versus Standards

Until recently in our history, it was understood that

Wheaton, Banks and nearly every other pertinent case held that

copyright protection may not be asserted for the text of “the

law”.18 The basic proposition was stated by Justice Harlan, writing

for the Sixth Circuit: “any person desiring to publish the statutes

of a state may use any copy of such statutes to be found in any

printed book . . .” Howell v. Miller, 91 F. 129, 137 (6th Cir.

1898).

As of 1980, the noncopyrightability of “the law” appeared

settled to the First Circuit in BOCA. The court focused on the

real holding of Banks and accordingly vacated preliminary

injunctive relief to the author of a building code adopted into law

by the Commonwealth of Massachusetts.19 The court held that BOCA

had failed to carry its burden of distinguishing, for preliminary

relief purposes, the Massachusetts building code from non-

copyrightable statutes and judicial opinions. But the court then

remanded the case for further development in light of the novelty

18
See also Texas v. West Publishing Co., 882 F.2d 171, 174, 177 (5th
Cir. 1989), in which the State of Texas sought a declaratory judgment that West’s
copyright in their original arrangement of annotated Texas statutes was invalid.
This court rejected the state’s argument and observed in passing that West did
not claim a copyright in the text of the statutes themselves or in any of the
readily-available public compilations of statutes.
19
BOCA is an amicus curiae in this case supporting SBCCI’s position.

24
of the issue, the insufficiency of the trial court record, and the

apparent trend toward adoption of model codes by governmental

entities. The court nevertheless was skeptical that BOCA would

prevail, commenting

it is hard to see how the public’s essential due process
right of free access to the law (including a necessary
right freely to copy and circulate all or part of a given
law for various purposes), can be reconciled with the
exclusivity afforded a private copyright holder . . .

BOCA, 628 F.2d at 730. Though not a definitive holding, BOCA

clearly favors Veeck’s position over that of SBCCI, and it is most

closely on point.

The record has been developed in this case and, with the

perspective gained from other recent caselaw and from the multiple

submissions to the court, we have no hesitation in confirming

BOCA’s predisposition against the copyrightability of model codes

to the extent they have been adopted as law. But the limits of

this holding must be explained. Several national standards-writing

organizations joined SBCCI as amici out of fear that their

copyrights may be vitiated simply by the common practice of

governmental entities’ incorporating their standards in laws and

regulations.20 This case does not involve references to extrinsic

standards. Instead, it concerns the wholesale adoption of a model

20
See 63 Fed.Reg. 8545, 8554-55 (Feb. 19, 1998) (Office of Management
and Budget Notice of Final Revision of Circular A-119) (directing federal
agencies to adopt privately developed standards “whenever practicable and
appropriate” to “eliminate[ ] the cost to the Government of developing its own
standards”).

25
code promoted by its author, SBCCI, precisely for use as

legislation. Caselaw that derives from official incorporation of

extrinsic standards is distinguishable in reasoning and result.

See CCC Info. Services v. Maclean Hunter Market Reports, Inc., 44

F.3d 61 (2nd Cir. 1994); and Practice Management Info. Corp. v.

American Medical Ass’n, 121 F.3d 516 (9th Cir. 1997), opinion

amended by 133 F.3d 1140 (9th Cir. 1998).

In CCC Information Services, a New York statute required

insurance companies to use the “Red Book,” a privately prepared and

copyrighted list of projected automobile values, as one of several

standards in calculating the payments upon the total loss of a

vehicle. CCC Information Services systematically loaded portions

of the Red Book onto its computer network and distributed the

information to its customers. One of CCC’s theories was that the

Red Book had entered the public domain. The Second Circuit

addressed the public domain issue briefly, stating that “we are not

prepared to hold that a state’s reference to a copyrighted work as

a legal standard for valuation results in loss of the copyright.”

CCC Info. Services, 44 F.3d at 74. CCC notes the infringer’s

reliance on the BOCA decision, but it does not opine on that case,

confining itself to the precise facts before the court.

Practice Management involved the American Medical

Association’s copyrighted coding system for reporting physicians’

services and medical procedures. The Federal Health Care Financing

Administration (HCFA) contacted and then agreed with AMA to use the

26
AMA’s coding system for identifying physicians’ services on

Medicare and Medicaid reimbursement forms. AMA granted a “non-

exclusive, royalty-free and irrevocable” license to HCFA, without

restrictions on the government’s ability to reproduce or distribute

AMA’s codes. There was no evidence that AMA had restricted the

code’s availability to anyone. The Ninth Circuit held that the

HCFA’s decision to adopt regulations requiring physicians to use a

version of the AMA code on Medicaid claim forms did not place the

code in the public domain under Banks. Practice Management, 121

F.3d at 519 (“[T]he AMA’s right under the Copyright Act to limit or

forgo publication of the [coding system] poses no realistic threat

to public access.”).

Both the Second and Ninth Circuits feared that reaching

the opposite conclusion in those cases would have “expose[d]

copyrights on a wide range of privately authored model codes,

standards, and reference works to invalidation.” Practice

Management, 121 F.3d at 519. The Ninth Circuit suggested that

federal court rules regarding citations could invalidate the

copyrightability of the Blue Book. Id. at n.5. The Second Circuit

feared that a ruling in favor of CCC Information Systems would call

into question the copyrightability of school books once they were

assigned as part of a mandatory school curriculum. CCC Info

Services, 44 F.3d at 74.

These decisions, and the hypothetical situations they

discuss, are all distinguishable from Veeck. If a statute refers

27
to the Red Book or to specific school books, the law requires

citizens to consult or use a copyrighted work in the process of

fulfilling their obligations. The copyrighted works do not “become

law” merely because a statute refers to them. See 1 GOLDSTEIN

COPYRIGHT, § 2.49 at n. 45.2 ( noting that CCC and Practice

Management “involved compilations of data that had received

governmental approval, not content that had been enacted into

positive law”). Equally important, the referenced works or

standards in CCC and Practice Management were created by private

groups for reasons other than incorporation into law. To the

extent incentives are relevant to the existence of copyright

protection, the authors in these cases deserve incentives. And

neither CCC nor AMA solicited incorporation of their standards by

legislators or regulators. In the case of a model code, on the

other hand, the text of the model serves no other purpose than to

become law. SBCCI operates with the sole motive and purpose of

creating codes that will become obligatory in law.

At first glance, Practice Management appears to pose a

closer issue because the HCFA did not simply refer physicians to

the AMA’s coding system. The court’s opinion directs the reader to

HHS’s notice in the Federal Register announcing that HCFA would

require physicians to

use exclusively a common procedure coding
system. The system is the HCFA common
procedure coding system (HCPCS). This coding
system is to be used for coding procedures
that have been performed . . . and is

28
 basically used for determining reimbursement
amounts. HCFA developed the HCPCS in 1979 and
1980 by using the AMA’s CPT-4 [the copyrighted
coding system] for physician services and
adding HCFA-developed codes for some non-
physician services. In addition, we developed
conversion techniques to prevent unwarranted
payment escalation.

50 Fed. Reg. 40895, 40897. To be precise, then, HCFA had its own

coding system (the HCPCS) that incorporated AMA’s code but also

included additional information.

But unlike Veeck, Practice Management Information

Corporation, a commercial publisher of medical textbooks, was not

trying to publish its own version of the HCPCS. Practice

Management desired to sell a cheaper edition of the AMA’s code,

which was also used by insurance companies and had other non-

governmental uses. It is not clear how the Ninth Circuit would

have decided the case if Practice Management had published a copy

of the HCPCS. By analogy, the result in this case would have been

different if Veeck had published not the building codes of Anna and

Savoy, Texas, but the SBCCI model codes, as model codes.

IV. Policy Arguments

Many of SBCCI’s and the dissent’s arguments center on the

plea that without full copyright protection for model codes,

despite their enactment as the law in hundreds or thousands of

jurisdictions, SBCCI will lack the revenue to continue its public

29
service of code drafting. Thus SBCCI needs copyright’s economic

incentives.21

Several responses exist to this contention. First,

SBCCI, like other code-writing organizations, has survived and

grown over 60 years, yet no court has previously awarded copyright

protection for the copying of an enacted building code under

circumstances like these. Second, the success of voluntary code-

writing groups is attributable to the technological complexity of

modern life, which impels government entities to standardize their

regulations. The entities would have to promulgate standards even

if SBCCI did not exist, but the most fruitful approach for the

public entities and the potentially regulated industries lies in

mutual cooperation. The self-interest of the builders, engineers,

designers and other relevant tradesmen should also not be

overlooked in the calculus promoting uniform codes. As one

commentator explained,

. . . it is difficult to imagine an area of
creative endeavor in which the copyright
incentive is needed less. Trade organizations
have powerful reasons stemming from industry
standardization, quality control, and self-
regulation to produce these model codes; it is
unlikely that, without copyright, they will
cease producing them.

21
SBCCI’s factual “evidence” on this point consisted of self-serving
affidavits from its officers and employees, and proof that it earns perhaps 40%
of its revenue from sales of the domestic model codes and amendments. No effort
was made to show by what amount copying by people like Veeck would or could
reduce the organization’s revenue.

30
1 Goldstein § 2.5.2, at 2:51.22

Third, to enhance the market value of its model codes,

SBCCI could easily publish them as do the compilers of statutes and

judicial opinions, with “value-added” in the form of commentary,

questions and answers, lists of adopting jurisdictions and other

information valuable to a reader. The organization could also

charge fees for the massive amount of interpretive information

about the codes that it doles out. In short, we are unpersuaded

that the removal of copyright protection from model codes only when

and to the extent they are enacted into law disserves “the Progress

of Science and useful Arts.” U.S. Const. art. I. § 8, cl. 8.

Conclusion

For the reasons discussed above, we REVERSE the district

court’s judgment against Peter Veeck, and REMAND with instructions

to dismiss SBCCI’s claims.

22
This court’s opinion does not, of course, withdraw all copyright
protection from the model codes qua model codes.

31
PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by KING, Chief

Judge, DAVIS and STEWART, Circuit Judges, dissenting:

In this difficult case I am persuaded to join the view that

would affirm the judgment of the district court. It is undisputed

that Veeck copied the copyrighted product of SBCCI. That parts of

the copied material contain the same expressions as the adopted

codes of two Texas cities is no defense unless the use by the

cities of the protected expression somehow invalidated SBCCI’s

copyright.

The cities could have hired counsel and engineers to draft a

code, recouping its expense either from all taxpayers or by

charging a fee to users for a copy of its ordinance. A city could

also decide, on behalf of the citizens, to license a finished and

copyrighted work. Either is a decision by elected representatives.

Against a refrain that “the law” belongs to the people, Veeck

asked us to conclude, as a matter of federal common law, that the

choice made by the voters of this municipality was not available to

it. Its utility as a decisional norm aside, the refrain passes by

the fact that it was legislators who chose what they thought was

the most practical path, to adopt a technical code developed at the

expense of others under a licensing agreement.
 Nothing suggests that private entities will control access to

“the law.” A contrary vision persists while ignoring the assured

access of persons interested in the language of the ordinance. We

are not told what impediment a person interested in the ordinance

will face that will not be avoided by the doctrines of fair use and

implied license or the constitutionally footed right of persons to

access the law. Nor does developed case law tell us.

Banks holds that judges, as public employees, cannot have a

financial interest in the fruits of their judicial labors. It is a

case about authorship, about the acquiring of copyrights by public

officials, not a case invalidating the copyrights held by private

actors when their work is licensed by lawmakers.

As for the merger doctrine, I am not persuaded that it brings

anything more to the table. That doctrine reflects the narrow

circumstance where an idea can be expressed only one way and hence

protection of its expression gives way. A complex code, even a

simple one, can be expressed in a variety of ways. That reality is

not ended by choosing one manner of expression to enact and then

pronouncing that this normative rule—“the law”—can only be

expressed in one way. Of course, you have adopted the protected

expression; the reasoning is wholly tautological. It is a

restatement of the conclusion that adopting the codes invalidated

the copyright, not an independent reason why that is so.

33
 There is a strong argument for that conclusion and it can be

simply stated without calling on the illusion of the merger

doctrine: the thinness of the protection enjoyed by this specie of

copyright is overcome by the stronger public policy of unfettered

access to enacted law, a victory expressed in the conclusion that

enacting the code into law put the expression in the public domain.

Whether that is so is our question and the merger doctrine does not

answer it. Rather we are pushed to decide this case by reconciling

two competing policies, expressed at a high level of generality,

not unlike the large-scale balancing characteristic of judicial

findings of violations of substantive due process. Doing so lacks

the accretive marks of case-by-case adjudication, vital to the

discipline of judges wearing their “common law” hats. Perhaps we

will reach that point in the seriatim course of deciding the cases.

If and when we do, the choices will come with more sharply defined

features than the abstraction we now have.

Significantly the absence of easily-found answers to the

large, broadly-stated policy choices calls for caution. As I

earlier observed, these small cities were empowered by the work of

SBCCI; they gained the benefit of uniformity in regulation with

other cities in their codes as well as proven quality—with the

ability to charge a small fee for copies. Any person wishing a copy

of the code can obtain it. They can reproduce it for critical

commentary or to express their displeasure with its content, even

make copies to circulate in a campaign urging that it be rescinded.

34
 It bears emphasis that the Congress is best suited to

accommodate its Congressionally-created copyright protection with

the extraordinary changes in communication trailing the development

of the internet. Unless of course it is contended that some

Constitutional principle denies Congress the power to authorize

copyright protection for governmental entities wishing to adopt

codes such as those before us today. And of course the state

legislatures and the municipalities are differently situated in

another relevant and vital way—the state enjoys an immunity that

the municipalities do not. It is ironical that the federal courts

are asked to accept a broadly stated principle that would regulate

the states by decreeing that some federal principle denies them the

choice of accepting or rejecting a license when absent its waiver

of immunity the federal copyright regime is not enforceable against

them. This unexplored territory offers a confusing backdrop and

also counsels caution.

Another confusion must be put aside. When Veeck did his work,

the code was already available on the internet, albeit subject to

the terms of its license. Veeck’s effort was to put the code on the

internet free of license. To accept Veeck’s contention would

invalidate the copyright on every model code except those in

inventory that had never been adopted by any governmental body.

Publishing adopted model codes as a set with the list of

governmental bodies adopting them could be accomplished without

honoring the copyright because there would be no copyright.

35
 In sum, the suggestion that SBCCI’s position asks this Court

to extend the reach of the copyright law is exactly backwards. The

copyrights at issue here were concededly valid before the cities

adopted them as codes. The proper question is whether we should

invalidate an otherwise valid copyright as well as the solemn

contract between the governmental body and SBCCI. That aggressive

contention must find stronger legs than the rhetoric it comes

clothed in here. The contention comes with no constitutional or

statutory text, except its reliance upon the merger doctrine, and

that is wordplay. This is federal common law adjudication. Its

hallmark must be case-by-case accretion and measured decision

making, even if the case-by-case explanation of the permissible

restraint upon the copying of an enacted code leads to the

conclusion that Veeck urges today—and I am not yet willing to

embrace—that invalidity of the copyright is the inevitable

consequence of code adoption. Rather, I conclude that Veeck

violated the explicit terms of the license he agreed to when he

copied model codes for the internet and posted them. I decide no

more.

36
WIENER, Circuit Judge, joined by KING, Chief Judge, and

HIGGINBOTHAM, DAVIS, STEWART, and DENNIS, Circuit Judges,

dissenting:

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. Despite efforts to

clothe its ruling in classic copyright lingo —— “public domain,”

“fact/expression,” “merger” —— in holding for Veeck under the

discrete facts of this case, the majority had to (and did) adopt a

per se rule that a single municipality’s enactment of a copyrighted

model code into law by reference strips the work of all copyright

protection, ipso facto. Firmly believing that for this court to be

the first federal appellate court to go that far is imprudent, I

respectfully dissent.

I. FACTS AND PROCEEDINGS

As the underlying facts are undisputed, I adopt the majority

opinion’s detailed recitation of the facts, supplementing it with

the following observations contained in the record. The technical

codes here at issue are not mere compilations; rather they are

original, “from scratch” creations by SBCCI which rightfully enjoy

copyright protection from their inceptions. In each of its codes,
SBCCI asserts a copyright under which it claims the exclusive right

to publish these codes or license their reproduction and

publication. Despite its copyright, SBCCI ensures free access by

specifying that once a governmental unit enacts such a model code

into law, copies must be made available for inspection by the

public in the enacting government’s offices. As a general

proposition, members of the public may make or obtain copies of

portions of the adopted versions of SBCCI codes from city offices

or local libraries, or may purchase copies of the codes directly

from SBCCI and from some third-party sources, such as bookstores.23

Several municipalities in North Texas have adopted SBCCI’s

codes, including the towns of Anna and Savoy. Veeck avers that he

attempted to obtain a copy of the building code of his hometown of

Denison, Texas, after learning that it had adopted SBCCI’s Model

Building Code as its own. Failing to locate Denison’s building

code at local bookstores or libraries, Veeck ordered copies of the

codes that SBCCI had produced. He ordered these copies in

electronic format directly from SBCCI.24 According to Veeck, he

23
As noted by the majority members and nonmembers are charged
different prices for copies of the codes. For example, members
were charged $48 for a copy of SBCCI’s 1994 Standard Building Code,
for which nonmembers were charged $72.
24
The record is not completely clear, but it appears that
Veeck made no attempt to view or copy the codes in the Denison city
clerk’s office. When Veeck received the 1994 codes from SBCCI, he
realized that Denison had adopted the 1988 version of the building
codes. He posted the 1994 codes on his Internet site despite the
fact that they were not the same as the version adopted by Denison.

38
later visited approximately twenty towns in North Texas, including

Anna and Savoy, in an effort to obtain copies of their local

building codes, not all of which had been produced by SBCCI. Veeck

was not able to buy complete copies at any of the towns that he

visited.25 He apparently never attempted to view or copy the SBCCI

codes in any city clerk’s or other municipal offices of the towns

that had enacted the codes by reference.

In contravention of the software license agreement and

copyright notice included with the electronic version of the model

codes he purchased from SBCCI, Veeck failed to identify the codes

as the products of SBCCI when he posted them on his website.

Instead, he simply (and inaccurately)26 identified them as the

building codes of Anna and Savoy, Texas. As detailed in the

majority opinion, the litigation ensuing from this conduct

culminated with the grant of summary judgment in favor of SBCCI on

its claims for copyright infringement. As Veeck cannot

legitimately find a safe haven in any of his affirmative defenses,

the district court’s order should have been affirmed.

25
It appears that in some of the cities, the correct version
of the building code was not available at alternative locations.
For instance, Sherman, Texas, had adopted the 1997 version of the
building code, but the local library had only the 1994 version on
hand.
26
Veeck did not include the enacting ordinances of either
municipality. Anna’s enacting statute, for example, includes
ordinances resolving conflicts between the adopted SBCCI code and
previous city laws and also includes a clarification regarding
which city officials would be responsible for enforcing different
sections of the code.

39
 II. ANALYSIS

A. Standard of Review

This case is on appeal from a grant of a summary judgment that

dismissed Veeck’s declaratory judgment action and granted SBCCI’s

requested copyright infringement and damages relief. We review the

record de novo, applying the same standard as the district court.27

B. Merits

1. Overview

Despite the efforts of Veeck (and of those amici who support

him and of the en banc majority opinion) to paint this case as a

broad one with dire constitutional implications, the question

before us is truly quite narrow. In fact, it is the majority

opinion that creates drastic constitutional alterations by ruling

in Veeck’s favor, thereby improvidently decreeing an absolute and

inflexible rule, ill-suited for modern realities. Conversely, had

we held for SBCCI, we would have remained well within the

precedential and persuasive boundaries of established copyright

law. My analysis is necessarily delimited by the particular,

undisputed facts of the case: Veeck is a non-commercial, non-

educational, non-contractor, non-official, non-resident of either

Anna or Savoy, who purchased a copyrighted work, replete with

warnings about infringement, and published that work virtually in

its entirety on the internet. Veeck published on his website the

27
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).

40
entire substantive portion of the model building code that he

purchased from SBCCI, redacting only the identity of the code’s

author (SBCCI) and the statement that the code was copyright

protected, and inserting that they were the codes of Anna and

Savoy. Veeck’s only professed justification for infringing SBCCI’s

copyrights was that two or more small municipalities in northern

Texas —— of which Veeck was neither a resident nor otherwise

related to in any capacity, official or unofficial —— had, at the

invitation of the code’s author, enacted the codes into law by

reference. Because he cannot, Veeck does not contend that Anna or

Savoy denied him access to their codes or that he (or anyone else)

was unable to view the law to which the citizens of Anna and Savoy

are subject. Had Anna, Savoy, or SBCCI blocked the code’s

availability, I would be among the first to recognize Veeck’s (and

anyone else’s) right of access to “THE law.” That, however, is

simply not the case before us; this is not a free access case and

cannot be so classified.

Under this narrow set of facts, Veeck prevails only because

the en banc majority ruled favorably on at least one of his

affirmative defenses,28 without which, his publication of the codes

is indisputably an infringement of SBCCI’s copyright. Given

Veeck’s global re-publication of SBCCI’s copyrighted model codes,

28
Veeck advanced defenses grounded in due process, public
domain, fair use, waiver, copyright misuse, merger, and free
speech.

41
his at-best remotely tangential relationship to the codes and other

laws of Anna and Savoy, his inability to present evidence that he

was denied access to the towns’ codes by the towns or SBCCI, the

countervailing public policy concerns supporting copyright

protection, and the direction and intent of recent congressional

enactments and appellate case law, we should not have condoned

Veeck’s violation of SBCCI’s copyright.

Reduced to its bare essentials, the majority’s holding in

favor of Veeck indisputably enacts the blanket, per se rule that

once a copyrighted work is enacted into law by reference, it loses

its entire copyright protection, ipso facto, regardless of the

nature of the author, the character of the work, or the

relationship of the copier to the work or to the governmental

subdivision that enacted the work into law through incorporation by

reference. Such an extremely broad and inflexible rule propels the

majority’s holding far beyond the ambit of Congress’s enactments,

the Supreme Court’s pronouncements, and the opinions of other

appellate courts that have addressed similar issues. Yet the

possibility of obtaining such an all-encompassing ruling

constituted Veeck’s only hope of overcoming SBCCI’s copyright

protection vis-à-vis an otherwise admitted infringer who is too

attenuated from anything that might otherwise excuse the

unauthorized copying of these codes cum ordinances, such as a “need

to know” for purposes of complying with one or more provisions of

the codes. Veeck meets none of these criteria.

42
 2. Due Process/Public Domain

a. Absence of Controlling Legal Authority

In the absence of an expressed pronouncement from either the

Supreme Court or Congress,29 our creation of an automatic rule

rendering the copyright of a model code nugatory per se when and if

it is enacted into law is unwise, imprudent, and far in excess of

our authority. Before such a work is enacted into law, the

Copyright Act unquestionably affords copyright protection to its

author; and Congress has given no indication that, on enactment,

this protected status evanesces ipso facto as to the whole universe

of potential copiers.30 As I discuss in greater detail below,

recent congressional enactments and accompanying federal agency

29
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; if
a copyrighted work is incorporated into the laws, the
public need for access to the content of the laws
requires the elimination of the copyright protection.
...
No authority cited by CCC directly supports the district
court’s view [the view that the Red Book had passed into
the public domain].
...
We are not prepared to hold that a state’s reference to
a copyrighted work as a legal standard for valuation
results in loss of the copyright. (emphasis added).
30
Cf. County of Suffolk v. First American Real Estate
Solutions, 261 F.3d 179, 193 (2d Cir. 2001) (“The determination
that no one may own a copyright in statutes and opinions arises not
from a specific provision of the Copyright Act, but from a
‘judicial gloss’ on the Act.”) (citation omitted).

43
policies strongly predict that, were Congress to address the issue

here presented, it would preserve the protection of SBCCI’s

copyright, at least under circumstances like those we consider

today.31

As for the Supreme Court, its most analogous opinion, Banks

v. Manchester, falls markedly short of answering the question.32

The Court grounded its century-and-one-quarter old Banks holding ——

that judicial opinions cannot be copyrighted —— 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. 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.

31
See, e.g., National Technology and Transfer Act of 1995,
P.L. 104-113, § 12(d), 110 Stat. 783 (1996); OMB Circular A-119, 63
Fed. Reg. 8545, 8555 (Feb. 19, 1998).
32
Banks v. 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).
33
This rationale is also applicable to statutes created by
legislators paid by public funds.

44
 In the absence of expressed congressional guidance or directly

controlling Supreme Court precedent, we were left to address ——

prudentially —— a wide-open and unresolved question of copyright

law: Should the entirety of a privately confected and promulgated

model code, access to which has been denied to none, lose its

copyright protection in toto, against all the world, solely by

virtue of its enactment into law by reference? If Congress or the

Supreme Court wishes to strip totally the copyright protection

otherwise enjoyed by model codes as an automatic result of being

enacted into law, and to justify such emasculation by invoking the

doctrines of free speech, due process, merger, or the like, that

would be their prerogative. Prudence demands, however, that so

large a step beyond all established legal boundaries should not

have been taken first by an intermediate appellate court. 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.

b. Policy Analysis for Copyright Protection

45
 What Banks and other opinions undeniably teach about assessing

the copyright protection of works like the codes here at issue is

that “[t]he question is one of public policy....”34 Accordingly,

these decisions do not stand for the abstract and generic

proposition that all law qua law, regardless of its form,

authorship, or content, is automatically unprotected fair game as

to all copiers, without distinction. Hence, courts are given the

weighty task of balancing, on the one hand, the policy concerns

that favor the constitutionally mandated retention of copyright

protection for privately authored works and, on the other hand, the

policy concerns that would permit stripping the author of a

privately created work of copyright protection once that work is

enacted into law. I do not dismiss lightly the policy

considerations supporting this latter concern. Yet, when properly

limited to the narrow set of facts before us, the scale of

countervailing policy considerations is tipped —— slightly yet

undeniably —— in favor of enforcing SBCCI’s copyright, vis-à-vis

Veeck and any others (but only they) who are identically situated.

34
Banks, 128 U.S. at 253; see also CCC, 44 F.3d at 68:
We reach this conclusion [reversing summary judgment in
favor of a publisher who copied portions of appellant’s
used car valuations which were referenced by state
statutes] based on the need to balance the conflicts and
contradictions that pervade the law of copyright, and the
need, where elements of copyright law conflict, to
determine, as a policy judgment, which of its commands
prevails over the other. (emphasis added).

46
 I begin with an assessment of the policy consideration

supporting Veeck’s position —— namely, the due process and public

domain concerns. As an initial matter, the type of due process

asserted by Veeck is murky at best. He was not denied access to

the codes by either the towns or SBCCI (indeed, he has never

alleged that he even tried to attain access directly from either

town, or his home forum for that matter), and he was never charged

with or prosecuted for a code violation;35 therefore, his claim

cannot be based on procedural due process. And, inasmuch as

copyright is a federal law, no state action could deprive him of a

fundamental right that would trigger a substantive due process

claim. Neither has Veeck pointed to any state actor who has

purportedly denied him due process. Yet despite his unimpeded

access to the law and the absence of state action, Veeck argues

amorphously that his due process rights somehow allow him freely to

copy and publish otherwise copyright-protected codes once they are

enacted into law by reference.

I reiterate for emphasis that this would be an entirely

different case if Veeck’s (or anyone’s) access to the law had been

denied or obstructed; instead, we deal here only with Veeck’s bald

pronouncement —— now legitimated by the majority opinion —— that,

once a code is enacted into law, due process does not merely afford

35
Should some municipality, or SBCCI, ever truly restrict the
public’s free access to the enacted codes, any defendant prosecuted
for violating sections of the building codes would surely prevail
on a due process defense.

47
him access, but also gives him unfettered copying and dissemination

rights.36 The majority’s acceptance of Veeck’s position is truly

a novel extension of any prior judicial recognition of a due

process right. True enough, Veeck can copy and publish judicial

opinions and statutes on his website with impunity. He can do so,

however, not because of his due process rights, but rather because

—— as judicial opinions and legislatively drafted statutes have

never enjoyed copyright protection, could never enjoy such

protection, and are in the public domain from the moment of their

inception —— such works are entitled to no copyright protection or

restrictions.37

Logically then, the only possible support for Veeck’s due

process position is his wholly unsupported assertion that, by

virtue of their adoption into law by reference, the codes have

entered the public domain and are therefore denuded of all

copyright protection whatsoever, regardless of their content or the

identity of the author or other interested parties. According to

36
Cf. Practice Management Information Corp. v. American
Medical Association (Practice Management), 121 F.3d 516, 519 (9th
Cir. 1997) (in denying the Practice Management’s due process/public
domain argument, the court noted “Practice Management is not a
potential user denied access to the CPT, but a putative copier
wishing to share in AMA’s statutory monopoly. Practice Management
does not assert the AMA has restricted access to users or intends
to do so in the future.”).
37
Moreover, as further discussed infra, wide, unrestricted
dissemination of opinions and statutes has no possible harmful
effects on the “creativity” of those who author judicial opinions
and statutes; their jobs and their compensation have no nexus to
their creativity, and vice versa.

48
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.

Admittedly, the majority’s argument finds rhetorical support

from the First Circuit’s dicta in Building Officials & Code Admin.

V. Code Technology, Inc. (BOCA), in which that court stated “[t]he

citizens are the authors of the law, and therefore its owners,

regardless of who actually drafts the provisions because the law

derives its authority from the consent of the public, expressed

through the democratic process.”38 Undoubtedly, this metaphorical

concept of citizen authorship cum ownership has great symbolic,

“feel-good” appeal. The majority’s uncritical application of that

proposition to the instant case, however, naively treats all

manifestations of “THE law” in our increasingly complex society

monolithically and without differentiation. The Supreme Court took

no such position in Banks; in fact, Banks addresses only judicial

opinions and other pronouncements of the law created ab initio by

38
BOCA, 628 F.2d 730, 734 (1st Cir. 1980).

49
publically paid officials.39 Furthermore, although the symbolic

position advanced in BOCA’s grandiloquent dicta ostensibly

contemplates a broad application for the proposition of citizen

authorship and control, BOCA’s actual holding is very narrow and

unrelated to any such abstract musings about the democratic

process.

In fact, the BOCA court expressly avoided deciding whether

BOCA’s model code retained its copyright after enactment, noting

that “the rule denying copyright protection to judicial opinions

and statutes grew out of a much different set of circumstances than

do these technical regulatory codes....”40 Therefore, the

majority’s rote application of the lofty platitude of citizen

ownership of “THE law,” without exploring the distinctions between

different types of enactments and the policy considerations

attendant on each, is far too simplistic. Such an analysis is

inconsistent with the thorough policy evaluations evidenced by

those courts that heretofore have deliberated on similar copyright

issues.41

39
County of Suffolk v. First American Real Estate Solutions,
261 F.3d 179, 194 (2d Cir. 2001) (“Banks is properly read as
requiring a determination whether the particular governmental
entity or employee has adequate incentive to create the work absent
copyright protections.”).
40
BOCA, 628 F.2d at 736 (emphasis added).
41
See Banks, 128 U.S. 244; County of Suffolk, 261 F.3d 179
(2d Cir. 2001); Practice Management, 121 F.3d 516 (9th Cir. 1997);
CCC, 44 F.3d 61 (2d Cir. 1994); BOCA, 628 F.2d 730 (1st Cir. 1980).

50
 The privately created model codes enacted into law in this

case are easily distinguishable from judicial opinions or statutes

in several important respects. First and most obviously, model

codes are not created by elected or appointed officials paid from

public fisc, rendering inapt the mythical concept of citizen

authorship. Indeed, to the exact opposite, rather than producing

regulatory codes themselves, the officials elected as the citizens’

voice chose, on behalf of their constituents, not to head down the

long, expensive, and highly technical road of special code

drafting, opting instead to adopt, cost-free, codes authored by

private entities, because doing so is convenient, efficient, and

cost-effective.

Second, these narrowly focused codes are detailed and complex,

requiring technical expertise on the part of the author. Third,

they are of limited, highly specialized effect as to who has a real

interest and is actually affected, unlike judicial opinions and

statutes, which generally have broad if not universal application.

Finally, Congress itself has provided the strongest support

for the proposition that these privately created codes should be

treated differently than other laws. Recognizing that the

production of a comprehensive technical code requires a great deal

of research, labor, time, and expertise, Congress in the National

Technology and Transfer Act of 1995 (the “NTTA”) expressly directs

that “Federal agencies and departments shall use technical

standards that are developed or adopted by voluntary consensus

51
standards bodies....”42 The OMB, in its Circular A-119, which was

designed to provide guidance to federal agencies in the wake of the

NTTA, requires that “[i]f a voluntary standard is used and

published in an agency document, your agency must observe and

protect the rights of the copyright holder and any other similar

obligations.”43 These pronouncements by Congress and the OMB

strongly evince a recognition that the privately created regulatory

42
National Technology and Transfer Act of 1995, P.L. 104-113,
§ 12(d), 110 Stat. 783 (1996). I note that although the NTTA and
the OMB Circular address the policy of using privately created
standards and retaining copyright protection for those standards,
they are still wholly applicable to the analysis of privately
created codes. Rather than a substantive, meaningful legal
distinction, Congress’s and the OMB’s references to “standards”
rather than “codes,” in all likelihood reflects the difference
between federal and local lawmaking. 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;” for purposes of
today’s decision, those terms are synonymous. 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. This understanding is
supported both by appellate case law and evidenced by the
standards-creating bodies filing amicus briefs in support of
SBCCI’s position. See Practice Management, 121 F.3d at 518-19 (“As
the AMA points out, invalidating its copyright on the ground that
the CPT entered the public domain when HCFA required its use would
expose copyrights on a wide range of privately authored model
codes, standards, and reference works to invalidation.”) (emphasis
added); see also amicus filed by, inter alia, American National
Standards Institute in support of SBCCI.
43
OMB Circular A-119, 63 Fed. Reg. 8545, 8555 (Feb. 19,
1998)(emphasis added).

52
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.”

The First Circuit’s overbroad dicta in BOCA was announced in

1980, well before the advent of the internet and well before the

announcement of the federal government’s legislated policy

directing the adoption of privately created codes to serve the

principles of efficiency and economic competition.44 Moreover,

recent appellate case law supports the recognition of the clear

differences between, on the one hand, privately developed standards

that are adopted into law by reference and, on the other hand, law

created by legislators and judges.45 Thus, the majority’s

44
Id. at 8554:
The use of such standards, whenever practicable and
appropriate is intended to achieve the following goals:
a. Eliminate the cost to the Government of
developing its own standards and decrease the
cost of goods procured and the burden of
complying with agency regulation.
b. Provide incentives and opportunities to
establish standards that serve national needs.
c. Encourage long-term growth for U.S.
enterprises and promote efficiency and
economic competition through harmonization
[uniformity] of standards.
d. Further the policy of reliance upon the
private sector to supply Government needs for
goods and services. (emphasis added)
45
See County of Suffolk v. First American Real Estate
Solutions, 261 F.3d 179 (2d Cir. 2001) (developing a two-pronged
economic incentive/public need test to determine whether tax maps
developed by the County of Suffolk were in the public domain from
inception and therefore stripped of copyright protection; citing

53
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. Modern realities and case law directly contradict

this simplistic abstraction: The policy considerations that dictate

unlimited and unrestricted publishing of judicial opinions and

statutes simply do not appertain here.

The policy concerns supporting the retention of at least some

copyright protection for SBCCI are more persuasive and probative.

First and most importantly, unlike judges and legislators who are

paid from public funds to issue opinions and draft laws, SBCCI is

a private sector, not-for-profit organization which relies for its

existence and continuing services, in significant part, on revenues

from the sale of its model codes.46 The necessity of maintaining

Practice Management and the panel opinion in Veeck, deciding that,
as a matter of law, the county’s tax maps were not in the public
domain); Practice Management, 121 F.3d 516, cert. denied, 522 U.S.
933, opinion amended by 133 F.3d 1140 (finding that the American
Medical Association did not lose the right to enforce its copyright
when use of its promulgated coding system was required by
government regulations); CCC, 44 F.3d 61, cert. denied, 516 U.S.
817 (upholding copyright of privately prepared listing of
automobile values that states required insurance companies to use);
see also 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 5.06[C], at 5-91 (2000) (“It is questionable whether [the due
process clause] justifies the denial of copyright to a private
person or group who produces such a model code.”).
46
Approximately one-third, or $3 million, of SBCCI’s annual
$9 million dollar revenue is generated by sales of model codes to

54
the economic incentive of copyright protection for these private

entities prompted the Ninth Circuit to rule in favor of the AMA’s

retention of its copyright in the Physician’s Current Procedures

Terminology (“CPT”) despite a federal agency’s adoption of the CPT:

The copyright system’s goal of promoting the arts and
sciences by granting temporary monopolies to
copyrightholders was not at stake in Banks because
judges’ salaries provided adequate incentive to write
opinions. 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.”47

This approach is also consistent with the Second Circuit’s two

pronged test in County of Suffolk for determining whether a work

may be deemed to be in the public domain: “(1) whether the entity

or individual who created the work needs an economic incentive to

create or has a proprietary interest in creating the work and (2)

whether the public needs notice of this particular work to have

notice of the law.”48 Here, without the ability to control

unrestricted gratuitous dissemination of its model codes, SBCCI

contractors and other interested parties. The remaining revenue is
mainly derived from the annual fees of voluntary members and member
organizations. Voluntary members include scholars, builders,
contractors, and governmental entities that have adopted the code.
47
Practice Management, 121 F.3d at 518 (quoting 1 Nimmer on
Copyright § 5.06[C], at 5-92 (1996))(emphasis added).
48
County of Suffolk, 261 F.3d at 194.

55
would lose significant revenue, in turn substantially impinging on

the financial incentive and ability to continue creating and

revising its model codes, absent some alternative source of funds.49

The importance of affording organizations like SBCCI

protection from attenuated third parties like Veeck —— even when

motives are pure and unfair financial competition is not the goal

—— is best underscored by verbalizing the natural consequence of

reducing the revenues, and thus the creative incentives, for

organizations like SBCCI. Without private code-creating entities,

our smaller towns —— and even some of our larger cities, states,

and agencies of the federal government —— would be forced to author

their own regulatory codes. 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

49
We note here that the second prong of the County of Suffolk
test is no barrier. As stated above, although the codes are
necessary for a citizen to have proper notice of the building code
regulations of Anna and Savoy, no allegations have been made here
to suggest that Veeck was denied notice or access to the codes. We
stress that the right of unlimited republication is a far cry from
the rights of access to and notice of the law.

56
and efficiency. For small towns like Anna and Savoy, such a result

could 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.

I hasten to add that, for my analysis to have force, SBCCI

need not be put completely out of business. Continued maintenance

of a revenue source from sales of codes to individual owners,

architects, engineers, materials suppliers, builders and

contractors as well as libraries and other more attenuated

purchasers, all of whom buy copies of the codes directly from

SBCCI, serves another public interest. I refer to the continuation

of SBCCI’s independence from the self interest of its dues-paying

members, who otherwise might be in a position to command more

influence were SBCCI forced to obtain too great a share of its

revenue from such supporters. Clearly, SBCCI’s receipts from sales

of the codes substantially reduces the potential for greater

dependence on its membership, presumably allowing SBCCI to operate

without becoming entirely beholden for its existence to self-

interested entities.

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

57
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. The fair

use doctrine would also protect the use of the code, or portions of

the code, as a teaching tool and would allow experts, lawyers, and

judges freely to cite the code in their briefs or opinions without

infringing SBCCI’s copyright. These existing internal safeguards

in copyright law show up the majority’s dire predictions for the

unrealstic hyperbole that they are.

It is important to keep in mind the record reality that

neither Anna and Savoy themselves, nor builders, contractors,

design professionals, or residents of Anna or Savoy, have

complained of denied access to the codes or being hampered in their

efforts to use, copy, or comply with the codes in a manner

consistent with copyright law. Thus, the well-established

doctrines of implied license and fair use preserve the public

interest by allowing copyright protection to co-exist peacefully

with all convenient and necessary use of the model codes.

In sum, Veeck has no real support for his infringement, being

relegated to his abstract solipsism that due process immunizes any

republication of the SBCCI’s model codes once they are enacted into

law by reference. This court’s en banc majority holding today

ignores case law from the Supreme Court and other appellate courts,

which have instructed us that our conclusion here cannot be based

on absolute or generic pronouncements regarding the nature of THE

58
law. Instead we should reach our conclusion only after a careful

weighing of the policy considerations of due process and copyright

law in the unique framework of the particular facts of each case.

Moreover, to the extent that recent congressional enactments and

federal agency policies give guidance, they indicate that SBCCI’s

copyright protections should be respected despite adoption of its

codes into law.

Summarizing all pertinent factors —— (1) the lack of

controlling precedent from the Supreme Court or specific guidance

from Congress on the issue, (2) federal law and federal agency

policy encouraging the adoption of model codes and increasing the

trend toward federal and state adoption of model codes, (3) the

palpable distinction between the model codes at issue here and

judicial opinions or legislative enactments, (4) case law from our

fellow circuits that supports the retention of copyright protection

even after adoption by reference into law, (5) the complete absence

of any denial of access, (6) the truism that neither due process

nor the metaphorical concept of citizen ownership of the law

mandates totally unrestricted publication of adopted model codes,

(7) SBCCI’s identity as a private not-for-profit company which,

unlike courts and legislatures, needs self-generated financial

resources to continue independently creating and modifying its

codes, (8) the knowledge that governmental obtain, free of cost,

accurate, efficient and uniform regulatory codes which otherwise

would be time-consuming and expensive (if not impossible in many

59
instances) to develop in SBCCI’s absence, and (9) the comfort that

all reasonable and necessary use, copying, and republication by

building owners, builders, contractors, design professionals,

teachers, lawyers, as well as citizens and officials of the towns

themselves, is assured protection by the fair use and implied

license doctrines —— convinces me that the public policy scale is

tipped in favor of enforcing SBCCI’s copyright protection against

Veeck, who has never been denied access to the codes of Anna and

Savoy and almost certainly never will be (but, if he ever is, he

has alternative remediation available).

Finding that, on balance, these policy considerations favor

SBCCI, I would conclude as a matter of law that, despite being

adopted into law, SBCCI’s codes are not in the public domain, and

that Veeck’s due process rights cannot be stretched far enough to

permit his completely unrestricted copying and dissemination of

SBCCI’s codes. Veeck’s other statutory and constitutional defenses

similarly fail.

3. 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.50 Veeck’s basic contention is that when a model code

50
17 U.S.C. § 102(b):
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

60
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.51 Relatedly, he contends that

the doctrine of “merger” applies to nullify protection for

expressions of an idea any time that there are only one or a very

limited number of ways to express a given idea.52 The cornerstone

of both arguments is the definition of “idea” in the context of a

model code that has been enacted by reference.

a. Defining “Idea”

Veeck’s argument fails because it misapprehends and misapplies

the “idea” concept in copyright law. “Idea” in copyright law is a

discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such
work.
see also Feist Publications, Inc. v. Rural Tel. Serv. Co., 499
U.S. 340, 349 (1991) (“[C]opyright law assures authors the right to
their original expression, but encourages others to build freely
upon the ideas and information conveyed by a work. This principle,
known as the idea/expression or fact/expression dichotomy, applies
to all works of authorship.”)
51
Mason v. Montgomery Data, Inc. 967 F.2d 135, 138 (5th Cir.
1992) (“Thus, while a copyright bars others from copying an
author’s original expression of an idea, it does not bar them from
using the idea itself.”) (emphasis in original)
52
Id. at 138:
In some cases, however, it is so difficult to distinguish
between an idea and its expression that the two are said
to merge. Thus, when there is essentially only one way
to express an idea, “copying the ‘expression’ will not be
barred, since protecting the ‘expression’ in such
circumstances would confer a monopoly of the ‘idea’ upon
the copyright owner free of the conditions and
limitations imposed by the patent law.” (citations
omitted).

61
term of art which does not track its everyday, dictionary meaning.

What constitutes an “idea” in the lexicon of copyright law cannot

be determined by empirically analyzing a given fact situation until

the nascent dividing line between the “idea” and its “expression”

finally crystallizes; indeed, just the reverse is true. Case law

reveals that identification of the “idea” in a work is not the

starting point but the result of a judicial exercise that in turn

is highly dependent on the precise factual situation being tested.53

Therefore, designation of the enacted code as an idea vel non is a

legal conclusion to be reached by a court, not an initial factual

finding to be gleaned intuitively. That determination of idea is

not antecedent to a policy determination regarding the

“copyrightability” of the code; to the contrary, it is the logical

53
Id. (“A court’s decision whether to apply the merger
doctrine often depends on how it defines the author’s idea. For
this reason, in defining the idea the courts should be guided by
‘the balance between competition and protection reflected in the
patent and copyright laws.’”)(citations omitted); Peter Pan
Fabrics, Inc. v. Martin Wiener Corp., 274 F.2d 487, 489 (2d Cir.
1960) (L. Hand, J.)(discussing what the court termed as “verbal
works,” the court stated “[T]here can be no copyright in the
‘ideas’ disclosed but only in their ‘expression.’ Obviously, no
principle can be stated as to when an imitator has gone beyond
copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions
must therefore inevitably be ad hoc.”); see also Nimmer on
Copyright § 13.03[B][2][a] at 13-60 (“Merely stating the rule [17
U.S.C. § 102(b)], however, does not make any easier the task of
drawing the line between where the idea ends and expression
begins.”).

62
end-product reached after competing concerns are weighed

judicially.54

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. The last
may perhaps be no more than the most general
statement of what the play is about, and at
times might consist only of its title; but
there is a point in this series of
abstractions where they are no longer
protected, since otherwise the playwright
could prevent the use of his ‘ideas,’ to
which, apart from their expression, his
property never extended. Nobody has ever been
able to fix that boundary, and nobody ever
can.55

Our task in this case should have been to decide whether the “idea”

embodied in the code is defined, at one extreme of the continuum,

as the entire code itself in its tangible form, or if instead the

54
Cf. Nimmer on Copyright § 1.10[B][2] at 1-78 (“On the
whole, therefore, it appears that the idea-expression line
represents an acceptable balance as between copyright and free
speech interests”) (citing United Video, Inc. v. F.C.C., 890 F.2d
1173, 1191 (D.C. Cir. 1989)).
55
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d
Cir. 1930). Commentators and courts have labeled this as Judge
Hand’s “abstractions test.”

63
“idea” is defined at a more removed and abstract level further

along that continuum.

My foregoing analysis has already demonstrated that the policy

considerations weigh in favor of granting SBCCI protection against

Veeck and other copiers and republishers identically situated.

Having laboriously arrived at this conclusion, and accepting that

a building code can be expressed in myriad ways, I am convinced

that the code in its tangible entirety is not the unprotected

“idea” in this situation.56 None question that this is true for

codes that have not been enacted globally into law by reference,

and nothing of which I am aware can magically change the expression

that is the copyrighted code into a copyright idea by the simple

act of adoption as a body of law. Today I need not, and therefore

do not, attempt to answer the question of exactly where to draw the

line and define the idea presented here. It suffices that the idea

at issue in the code is substantially more abstract than the

physical entirety of the code itself; so as a matter of law, the

code as a unitary whole is not an “idea” to be denied copyright

protection absolutely, but rather is one among a significant number

of possible “expressions.”

b. Merger

56
In doing so, I acknowledge that specific portions and
discrete facts within the code could be considered facts or ideas,
and therefore unprotectable.

64
 Libertarian advocates of freedom from essentially all

copyright protection attempt to find a safe harbor in the merger

doctrine as a last resort when they do not prevail on the

idea/expression dichotomy. The merger doctrine, however, is a

limited exception in copyright law, intended to shelter only those

rare cases in which the “idea” is susceptible of more than one

expression, but the number of possible expressions is so finite and

small as to have effectively “merged” with the idea.57 Similar to

the general misconception of the idea/expression dichotomy, the

widely misunderstood merger doctrine also depends on the level of

abstraction at which the court defines the “idea” that is alleged

to have merged with its expression.58

Again, Veeck can find no immunity in the merger doctrine

because there exists a plethora of ways to express a building code,

thereby making the merger doctrine inapplicable. 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

57
See generally CCC, 44 F.3d at 68; Nimmer on Copyright §
13.03[B][3] at 13-68 - 13-73.
58
See supra note 37.

65
codes; yet each is expressed differently —— and each is

copyrighted. As there exist considerably more than a tiny, finite

number of ways to express a building code, the merger doctrine is

inapplicable and thus unavailable to insulate Veeck’s infringement

from copyright protection.

4. Other Affirmative Defenses to Copyright Infringement

Veeck also contends that even if the codes are not in the

public domain and cannot be classified as “ideas,” his code copying

and dissemination activities are protected by the doctrines of free

speech, misuse, waiver, and fair use under copyright law.59 I

address each of these contentions in turn.

a. Free Speech

None contends that SBCCI made any attempt to use its copyright

to block or interfere with the public’s access to the municipal

codes of Anna and Savoy, Texas. In Schnapper v. Foley, the

District of Columbia Circuit held that the First Amendment does not

require the voiding of a copyright, even in a government-

commissioned work, absent evidence that access to the work had been

denied.60

59
Another defense, implied license, was raised by amicus
curiae Association of American Physicians & Surgeons, Inc., but was
not addressed by either party in the district court or on appeal.
Hence, I do not address it. See Christopher M. v. Corpus Christi
Indep. Sch. Dist., 933 F.2d 1285, 1292 (5th Cir. 1991).
60
667 F.2d 102, 115-16 (D.C. Cir. 1981).

66
 Dealing only with the record facts, I find that Veeck’s Free

Speech defense is further weakened by what he did not do: He did

not first obtain copies of the codes of these two cities and then

publish them on the Internet. Instead, he purchased directly from

SBCCI a copy of all its 1994 Standard Codes, which arrived bearing

a copyright notice and a license agreement. Ignoring these, Veeck

copied that set onto his computer and posted it on his own website,

identifying it as containing the municipal codes of the two towns

but without advising the identity of the author or the fact of

copyright. That which Veeck did and that which he did not do are

inherently different: What he did not do comes closer to an

interested party’s fair use of his local building code;61 what he

did exemplifies a purchaser who assumes the risk of actively

disregarding the intellectual property rights held and announced by

the author/supplier of a commercial product.

Factually, in enforcing its copyright in its model codes,

SBCCI simply is not stifling access to, or speech about, THE law.

SBCCI has not violated the First Amendment vis-á-vis Veeck.

b. Misuse

The equity-based defense of copyright misuse, which prevents

a culpable author from prevailing in an action for the infringement

of a misused copyright, “‘forbids the [copyright holder’s] use of

the copyright to secure an exclusive right or limited monopoly not

61
Veeck’s fair use defense is discussed further infra.

67
granted by the Copyright Office and which is contrary to public

policy to grant.’”62 In Practice Management, the Ninth Circuit

concluded that the American Medical Association misused its

copyright when it licensed its coding system to the Health Care

Financing Administration. The copyright misuse was the AMA’s

imposition of a condition on its grant of a license that the

licensee-agency agree not to use any competing system.63 Veeck, in

contrast, has raised no genuine issue of material fact regarding

any purported misuse by SBCCI of its copyright. The summary

judgment record is devoid of evidence that the organization

mandates the exclusive use of its codes or any other of its

services as a condition of a governmental subdivision’s adopting

one of the codes. There is thus no record evidence of facts

constituting misuse that in turn would prevent enforcement of

SBCCI’s copyright.

c. Waiver

Neither can Veeck prevail on his assertion that SBCCI

expressly or impliedly waives its entitlement to copyright

protection vis-á-vis the whole world when it successfully

encourages municipalities to adopt its codes by reference. I

readily concede that a copyright can be waived by the author’s

62
DSC Communications Corp. v. DGI Techs., Inc., 81 F.3d 597,
601 (5th Cir. 1996) (quoting Lasercomb Am., Inc. v. Reynolds, 911
F.2d 970, 977 (4th Cir. 1990)).
63
Practice Management, 121 F.3d at 520.

68
inaction.64 Here, however, SBCCI expressly reserved its copyright

in the codes. The district court found undisputed the fact that

the materials Veeck received from SBCCI “contained the copyright

expressions of the Defendant.” Having concluded that SBCCI’s codes

are not in the public domain and that due process does not require

suppression of SBCCI’s copyright, I am convinced that the

organization has done nothing to waive copyright protection

expressly.

Copyright also may be waived implicitly by virtue of a

particular act, even if waiver was neither explicit nor the

intended result.65 Veeck’s argument in this regard is that by

encouraging the towns to adopt the codes, SBCCI impliedly waived

its copyright protection. This presupposes that waiver must be an

“all or nothing” proposition, and thus cannot be implicit as to

some parties, such as the adopting municipalities, without loosing

its effectiveness altogether, even unto strangers like Veeck.

Except for his bald assertion, however, Veeck presents no viable

support for his waiver proposition. Moreover, when properly

analyzed, his argument is nothing more than a thinly disguised

64
See, e.g., Sherrod v. American Airlines, 132 F.3d 1112,
1119 n.5 (5th Cir. 1998).
65
See, e.g., Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d
45, 48 (5th Cir. 1995) (“Therefore, even if it be assumed that the
ribbon flowers were copyrightable, the Littles through inadequate
notice have made them part of the public domain, and Norma Ribbon
was free to copy them.”).

69
reformulation of his due process/public domain argument —— namely,

that the mere fact of adoption automatically and totally vitiated

SBCCI’s copyright and superceded SBCCI’s contractual protection as

against all comers.

As fully explicated above, my analysis reaches the conclusion

that, as a matter of law, SBCCI’s codes are not in the public

domain and that they retain their copyright protection against

Veeck and others thus situated. I observe that the district court

also concluded that the fact that SBCCI had given the North

Carolina Building Inspectors Association permission to publish on

the Internet that state’s building codes, which are modeled on the

SBCCI codes, does not constitute universal waiver. 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.66 Courts are

instructed to consider four factors when deciding whether a

particular use of copyrighted material is a “fair use”:

(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;

66
See 17 U.S.C. § 107 (2000).

70
 (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for
or value of the copyrighted work.67

When, as with Veeck’s infringing activity here, the use of a

copyrighted work is noncommercial, the ability to defeat an

infringer’s affirmative defense of fair use requires “proof either

that the particular use is harmful, or that if it should become

widespread, it would adversely affect the potential market for the

copyrighted work.”68

The key question under the “purpose and character” prong is

whether the alleged infringer’s product “merely supersedes the

objects of the original creation or instead adds something new with

a further purpose or different character, altering the first with

new expression, meaning, or message. In other words, it asks

whether and to what extent the new work is ‘transformative.’”69

Veeck’s posting of the codes on his website was not of a commercial

nature or for nonprofit educational purposes. Neither did his

actions in this case have any transformative effect on the original

work.70 In fact, there is neither an apparent nor announced purpose

67
Id.; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S.
569, 577 (1994).
68
Sony Corp. v. Universal City Studios, 464 U.S. 417, 451
(1984).
69
Campbell v. Acuff-Rose Music Inc., 510 U.S. at 579
(citations omitted) (internal quotations omitted).
70
In Campbell v. Acuff-Rose Music, while evaluating a fair
use defense, the Supreme Court discussed the degree to which a

71
behind Veeck’s wholesale copying except that he chose to do so and

believes, empirically, that he has the unfettered right to do so.

He presents no affidavits or other summary judgment evidence to

suggest that the townsfolk of Anna and Savoy or contractors,

builders, or other interested parties, would not have access to the

codes without Veeck’s intervention.

The nature of the copyrighted work constitutes the second

prong of the fair use analysis. The work at issue is an original

technical code produced by a non-profit organization to encourage

uniformity, safety, and economy in a technical area for the benefit

of an increasingly complex society. Within the four-pronged

jurisprudential test for fair use, Veeck’s position finds its only

viable support in this one factor. 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.71 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

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.
71
4 Nimmer on Copyright § 13.05[A][2][a] (citing Diamond v.
Am-Law Corp., 745 F.2d 142 (2d Cir. 1984)).

72
factors, and (2) is not as significant as the others in the fair

use determination.72

The third fair use factor —— amount and substantiality of

portion used vis-à-vis copyrighted work as a whole —— weighs

heavily against Veeck. He published verbatim the entire set of

codes obtained from SBCCI. Even though total copying does not

automatically defeat a fair use defense, and partial copying does

not automatically validate it, the general rule is that

reproduction of an entire work constitutes an unfair use.73

Moreover, the codes copied here were not, literally speaking, “the”

codes of Anna and Savoy: Even though the towns’ ordinances adopted

the model codes that Veeck copied, the enacting ordinances also

contained modifications and clarifications not found in the

verbatim versions of the SBCCI codes posted by Veeck.

Fourth, Veeck’s use could have a substantially detrimental

effect on the market for the copyrighted work. In considering this

factor, we must assess the consequences of wide-spread conduct

similar to Veeck’s, not just his alone.74 There is no genuine

72
Id. (citing Campbell v. Acuff-Rose Music Inc., 510 U.S.
at 586; Robinson v. Random House, Inc., 877 F.Supp. 830, 841
(S.D.N.Y. 1995)).
73
Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 109 (2d
Cir. 1998).
74
Campbell v. Acuff-Rose Music Inc., 510 U.S. at 590
(consideration of the fourth factor “requires the court to consider
not only the extent of the market harm caused by the particular
actions of the alleged infringer, but also ‘whether unrestricted
and wide-spread conduct of the sort engaged in by the defendant ...

73
dispute, based on the summary judgment record, “that some

meaningful likelihood of future harm exists.”75 Veeck’s posting of

the codes on the Internet could prove harmful by depressing the

price and reducing SBCCI’s market, thus depriving it of income used

in its socially valuable efforts of confecting, promulgating, and

revising model codes. Veeck’s non-commercial, free publication of

the codes exacerbates the detrimental effect on the potential

market: By furnishing the codes entirely free of charge, he could

effectively destroy the market rather than simply creating

competition and price suppression. When viewed in this light, the

free promulgation of a work is seen to be potentially more

financially deleterious than is commercial piracy or cut-rate

competitive availability. Currently, the sale of the copyrighted

codes to builders, contractors, design professionals, and other

interested parties (1) accounts for one-third of SBCCI’s income,

(2) provides incentive for SBCCI to stay in business so that small

governmental subdivisions, like the ones at issue in this case, can

obtain the benefits of a pre-crafted technical code, (3) fosters

uniformity, and (4) provides some measure of independence to SBCCI

from its members by holding down the extent of SBCCI’s reliance on

membership dues and assessments.

would result in a substantially adverse impact on the potential
market’ for the original.”) (quoting 4 Nimmer on Copyright §
13.05[A][4]).
75
Sony Corp., 464 U.S. at 451 (emphasis added).

74
 The situation presented in this case is not one of mere

copying of the codes for personal use, or of Veeck’s asking SBCCI

for permission to post the codes on the web and having permission

denied. As Veeck copied SBCCI’s model code verbatim, the fair-use

calculus weighs heavily against him. Veeck’s total copying and

promulgation of SBCCI’s model code, and the potentially harmful

effect of such copying on the market, render his use unfair.

C. SBCCI’s Infringement Counterclaim

SBCCI holds valid copyrights in its codes, and Veeck has

expressly admitted copying them. In the absence of a viable

defense, the district court was correct in holding that SBCCI

established copyright infringement. Under these circumstances, I

am satisfied that the district court’s conclusions and its award of

an injunction and the minimum statutory damages on each of the five

counts of copyright infringement are free of error.76 Likewise, I

find no abuse of discretion in the district court’s award of

attorneys’ fees.77

76
At the pertinent time, 17 U.S.C.A. § 504(c)(1) set the
range of statutory damages for each act of copyright infringement
at no less than $500 or more than $20,000. A 1999 amendment has
raised those amounts to $750 and $30,000, respectively. Id.;
Digital Theft Deterrence and Copyright Damages Improvement Act of
1999, Pub. L. No. 106-160, § 2(1), 113 Stat. 1774 (1999).
77
Hogan Systems, Inc. v. Cybresource Int’l, Inc., 158 F.3d
319, 325 (5th Cir. 1998) (applying abuse of discretion standard of
review to award of attorneys’ fees in copyright case). Veeck did
not brief the questions of the district court’s grant of a
permanent injunction or award of damages and attorneys’ fees, and
therefore waived them.

75
 III. CONCLUSION

Two decades ago, in BOCA,78 the First Circuit wrestled with the

serious issues raised by what was then only a “possible trend”

toward local, state, and federal adoption of model codes.79 That

court wisely left open for future evaluation the modern realities

surrounding technical regulatory codes and standards. As the BOCA

court wrote, groups that develop such works “serve an important

public function; arguably they do a better job than could the state

alone in seeing that complex yet essential regulations are drafted,

kept up to date and made available.”80 In like manner, the two

federal circuits that subsequently addressed challenges similar to

that considered by the First Circuit in BOCA have declined to

invalidate copyrights in works incorporated by reference into the

law.81 In the legislative arena, Congress has decreed the policy

that federal agencies adopt privately authored technical standards

without voiding the protection afforded to the authors by

copyright; and the OMB has directed all federal agencies adopting

such standards to respect the copyright protections of the

copyright holders —— the diametric opposite of causing copyright

protection to vanish when the work is adopted as law.

78
628 F.3d 730.
79
Id. at 736.
80
Id.
81
See Practice Management, 628 F.3d 730; CCC, 44 F.3d 61.

76
 I emphasize that my analysis is restricted to the narrow set

of facts and circumstances before us. At bottom, I think it

improvident for this court to legislate judicially an absolute, per

se rule that referential enactment of a copyrighted work like a

technical code into law mystically metamorphoses it into an “idea,”

puts it into the public domain, waives its copyright protection

universally, and otherwise strips it of copyright protection vel

non. Under the instant circumstances, no one is being denied

reasonable access to the SBCCI codes that have been adopted in

globo by local governments; neither does Veeck’s specific actions,

however altruistic they might have been, make a viable case for

fair use. Nevertheless, I readily concede, that even slightly

different facts under but slightly different circumstances could

convince me to support a different result, albeit not a per se

rule.

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;

rather, they remain enforceable, even as to non-commercial copying,

as long as the citizenry has reasonable access to such publications

cum law —— and subject, of course, to exceptions for implied or

77
express waiver or consent, fair use, or other recognized

exceptions, when applicable. For these reasons, I cannot join in

the majority’s inflexible reasoning and unnecessarily overbroad

holding. I therefore respectfully dissent.

78