Should You Pay To See The Law You Must Obey?

Earlier this month, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet resumed hearings on copyright reform. One of the three topics discussed at the January 14, 2014 hearing was whether model codes and technical standards developed by private standards developing organizations ("SDOs") and subsequently enacted into federal, state or municipal laws should be protected by copyright or, instead, be freely available to the public.

Since the Supreme Court's decision in Wheaten v. Peters, 33 U.S. 591 (1834) dating back to the earliest days of U.S. copyright law, it has been settled that the law, whether in a form of judicial opinion, legislative acts, or ordinances, is in the public domain and thus not subject to copyright protection. The reason for this is fairly simple: the public must have access to the law in order to follow it. This principle was confirmed in Veeck v. Southern Building Code Congress Int'l, Inc., 293 F.3d 791 (5th Cir. 2002), cert. denied, 539 U.S. 969 (2003), where the Fifth Circuit held that a model code developed by an organization and adopted by a legislative body becomes "the law" and may be reproduced or distributed free of copyright restrictions.

Nevertheless, a significant number of model codes and technical standards that have been adopted into federal, state or local laws are often available only from the respective SDOs that developed them, and only in exchange for a fee. These include building codes, fire preventions standards, electrical, fuel and oil safety standards, and many others. SDOs are typically non-profit entities that have expertise in specific technical areas and whose goal is to develop, promote and have enacted into the law various safety codes and standards. Because model codes and standards oftentimes are incorporated by reference into federal, state and local regulations, they are not necessarily published in Federal or State registers. As a result, the purchase of a standard from an SDO is in many cases the only way to get access to an enacted standard.

SDOs claim that their technical standards and codes are works of authorship protected under the copyright law, regardless of whether they have been adopted into law by federal, state or municipal bodies. Several SDOs took actions against individuals and organizations who reproduced model codes and standards that were already adopted into the law, accusing them of copyright infringement and demanding to remove the...