Building Codes and Copyright

As I’ve mentioned before, building codes are highly technical documents, reflecting the latest research in structural behavior. As such, building codes are generally authored by private organizations of engineers, architects, and other experts, rather than by the government. If a jurisdiction wishes to adopt one of these codes, they do so by reference[1] (passing a law which states which code will apply) or by obtaining a license. This method goes back to 1905, when the National Board of Fire Underwriters created the first National Building Code.

These organizations, such as the International Code Council (ICC) or the American Society of Civil Engineers (ASCE), fund their operations by selling copies of the codes they develop. However, common sense (and legal precedent[2]) says that you can’t copyright a law – that if someone wants to pass out photocopies of the code, or host it for free on their website, there’s no legal means of stopping them. Someone suing someone else over the issue thus seems almost inevitable. Surprisingly, it took almost 80 years for that to happen, until the case of BOCA v. Code Tech.

In 1980, the Massachusetts state legislature adopted the national building code produced by BOCA as the state building code. Shortly after this, a company named Code Tech began selling copies of the Massachusetts state code, combined with the state-specific amendments. BOCA took offense to what amounted to Code Tech selling their code without their permission, and they filed for an injunction against Code Tech to stop them.

The court found in favor of BOCA, placing an injunction on Code Tech from selling the code. However, Code Tech appealed the ruling, and the appeals court ruled that the law could not be copyrighted, and that restricting access to it was a violation of due process. The injunction was reversed.

However, the appeals court opted specifically not to make a final ruling on the overall issue of the copyright and privately authored laws:

Normally-even in an appeal from a preliminary injunction-we would expect to rule finally on such a “legal” issue… We think it inadvisable to do so here, however. – 1st Circuit Code of Appeals, BOCA v. Code Tech.

Thus the issue would continue to linger for another 20 years, until the case of Veeck v. SBCCI.

Sometime in 1997, a man named Peter Veeck uploaded a copy of the SBCCI’s “Standard Building Code” (which had been adopted by several towns in his area) to his personal website, a repository of information about North Texas. SBCCI was, unsurprisingly, less than pleased , and issued Veeck a cease and desist. Instead of complying, Veeck opted to file a declaratory judgment against SBCCI, seeking a preliminary judgment that he did not violate copyright. SBCCI counterfiled against him for copyright infringement, unfair competition and breach of contract.

The court found in favor of SBCCI, awarding them monetary damages and an injunction against Veeck from distributing the code. Veeck (unsurprisingly) appealed, but the ruling was upheld. However, the court then opted for an en banc hearing, where a case is heard by the full panel of court judges[3]. This time, the court found in favor of Veeck. They ruled, once again, that the law was not subject to copyright[4].

As a result of this, several places have popped up online offering free versions of otherwise pricey building codes – Archive.org and public.resource.org to name a few. However, the vast majority of current codes aren’t available, and must still be purchased at rather hefty fees[5]. And even for the ones that are (such the International Building Code), engineers and architects seldom seem to know that the free versions exist.

It will be interesting to see, going forward, if any push is made towards making more codes freely available, and how the authoring organizations respond.

Notes:

[1] – Codes often make adjustments to the model code, rather than just adopting it completely. For instance, the Florida Building Code is more or less an exact copy of the International Building Code with the provisions on earthquake design removed, and additional requirements for hurricane design.

[2] – See Wheaton v. Peters (1834), Banks v. Manchester (1888), Nash v. Lathrop (1886)

[3] -Typically, cases on appeal are heard by a panel of 3 judges.

[4] – SBCCI appealed the ruling to the supreme court, which declined to hear the case.

[5] – One possible reason is that many codes are many levels of reference down. For instance, the international building code may incorporate by reference the ACI 318 concrete code, the AISC steel code, and the ASCE design loads code. It’s unclear as to whether these codes could legally made freely available as well.

Sources:

http://www.law.cornell.edu/copyright/cases/293_F3d_791.htm

http://www.studentweb.law.ttu.edu/cochran/Cases%20&%20Readings/Copyright-UNT/veeck.htm

http://lawmeme.research.yale.edu/modules.php?name=News&file=friend&op=FriendSend&sid=630

http://www.constructionweblinks.com/resources/industry_reports__newsletters/May_17_2004/supreme.html

https://bulk.resource.org/courts.gov/c/F2/628/628.F2d.730.80-1124.html

One thought on “Building Codes and Copyright

  1. Nicely done article and blog! I am considering using part of the AISC specification in a book I am working on, and found this to be a useful reference regarding copyright.

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