The copyright law.

• Author: Kry, Robert
• Position: Web sites and building codes; prohibition on copyright of federal government works

Veeck v. Southern Building Code Congress International, Inc., 241 F.3d 398 (5th Cir. 2001).

"Congress shall make no law respecting an establishment of religion." These foundational words now appear on more than 15,000 different websites; (1) a testament to the profound impact of the Internet on the public dissemination of--and access to--the law. No one holds a copyright in the First Amendment; anyone wishing to reprint its text may do so at will.

But what if those who drafted laws could prevent others from distributing their works to the public? Imagine how different things would be if James Madison could collect royalties from all those who would reprint his august constitutional words.

One might think the idea far-fetched. The 1976 Copyright Act prohibits copyright of federal government works, (2) and the courts have long assigned statutes and judicial opinions to the public domain. (3) But the Fifth Circuit's recent decision in Veeck v. Southern Building Code Congress International, Inc. (SBCCI) (4) unsettles many of these long-held assumptions.

I

Lawmaking in the modern regulatory state is a painstaking task. Instead of writing their own codes, many government entities rely on model codes that private companies like SBCCI develop and publish. (5) SBCCI claims a copyright in its model codes. (6) It allows municipalities to enact them free of charge. (7) The public can peruse the codes at a government office, but those seeking more convenient access must purchase a copy from SBCCI for seventy-two dollars. (8)

Peter Veeck operates a nonprofit website providing information about towns in Northern Texas. Some of these towns had enacted SBCCI building codes, and without the company's permission, Veeck posted copies at his site. (9) SBCCI sent Veeck a cease and desist letter claiming that he was violating its copyright, and litigation ensued. (10)

Veeck asserted two primary defenses. First, he argued that the public's due process interest in free access to the law extinguished SBCCI's copyright once its codes were enacted. (11) For this proposition, he relied on the First Circuit's decision in Building Officials & Code Administrators International, Inc. (BOCA) v. Code Technology, Inc. (12)

Second, Veeck relied on the merger doctrine. Copyright does not extend to any "idea, procedure, process, system, method of operation, concept, principle, or discovery." (13) When an idea or method can be expressed in only one or a few ways, the expression itself is also excluded from copyright: It "merges" with the underlying idea or method. (14) Veeck argued that when towns enacted SBCCI's building codes, they became facts that could be expressed in only one way, and thus fell outside the scope of copyright. (15)

The district court granted summary judgment to SBCCI, and the Court of Appeals for the Fifth Circuit affirmed over one dissent. It held that the codes' physical availability for inspection at public offices satisfied due process. (16) It refused to extend Supreme Court precedent to privately prepared codes, declining to follow the First Circuit's decision in BOCA. (17)

The court also rejected the merger argument. Under Fifth Circuit precedent, merger is evaluated only as of the time of a work's creation. (18) The court found that when SBCCI's building code was created, it did not merge because there are "many ways to write model building codes, not just one." (19) To bolster the point, the court observed that SBCCI's model codes compete with those of at least two other private organizations. (20)

Judge Little dissented. He agreed with the majority that SBCCI's codes were copyrightable prior to adoption. But he believed that once a code was enacted, there was no other way to express it. "An individual wishing to publish the text of a law cannot develop his own, unique version and still publish an authoritative copy." (21)

II

The Veeck decision was not a faithful application of copyright principles. Whatever the merits of the due process holding, the majority's decision of the merger issue was flawed. The dissent, however, also failed to treat the merger issue properly. By conceding that model codes are copyrightable prior to adoption, the dissent fatally crippled its argument, because under Fifth Circuit law a work not merged at its creation cannot subsequently become so. (22)

In fact, model codes are not copyrightable, whether or not they have been enacted. (23) A model code describes a "method of operation" under 17 U.S.C. [section] 102(b) because it is a set of instructions for public governance. (24) The text of a model code merges with the underlying method because the substance of a law, whether enacted or merely proposed, depends inextricably on its particular textual formulation. (25) In other words, "[t]here is only one accurate way to express a law." (26)

This reasoning reflects the structure and purposes of copyright law. Model codes are functional works. (27) This fact does not make them uncopyrightable, (28) but it does place restrictions on the level of generality at which the "idea" can be defined for merger purposes. Authors cannot claim monopolies over methods--that is the realm of patent. (29) The idea therefore must not be defined at a level that allows an author to appropriate the sole means of describing a functionally distinct method. (30)

A key concept is the distinction between descriptive substitutes and functional substitutes. Descriptive substitutes are different means of describing the same method; functional substitutes are different methods entirely. When a functional work has descriptive substitutes, it does not merge, because a copyright in the work does not preclude others from teaching that particular method. (31) When a functional work has only functional substitutes, however, the merger doctrine applies. (32)

A helpful example is a recipe. When a recipe consists of nothing more than a list of ingredients, it is uncopyrightable, because that list of ingredients is essential to expressing the method of preparing the dish. (33) A list of ingredients has functional substitutes (there are many different recipes for chocolate cake). But since it has no descriptive substitutes, the merger doctrine bars copyright.

The Veeck majority reasoned that model building codes do not merge because there are many different ways to write them. This argument confuses descriptive substitutes with functional substitutes. (34) Competing codes differ in their functional attributes--even small changes in diction or ordering have potential legal consequences. (35) Like a recipe, a model code is...