- As part of a copyright infringement case brought by the state of Georgia, the U.S. Supreme Court has ruled that the state's official annotated code does not constitute "original works of authorship" and is not protected by the Copyright Act. Georgia originally sued the nonprofit Public.Resource.org (PRO) for posting downloadable versions of the state code on several of its websites without the state's permission.
- The case revolves around the annotations that accompany each statute in the "Official Code of Georgia Annotated." These notes include summaries of court and the attorney general's opinions, other legal references and editors' notes about the statute. In exchange for the work that LexisNexis performs in researching and writing the annotations, the state has given it the exclusive right to publish, distribute and sell the code — priced at $412.00 — but the company must also make an annotated version available online for free as well.
- As part of the majority opinion, Chief Justice John Roberts maintained that works authored in the course of legislative or judicial duties, as the annotated state code is, cannot claim copyright protection.
In the dissenting opinion, Justice Clarence Thomas wrote that while statutes and regulations cannot be protected by copyright, "accompanying notes lacking legal force can be." The state, he wrote, makes it clear that the annotations are not legally binding.
How this decision will affect the International Code Council's (ICC) lawsuit against online building code provider UpCodes and whether the company will be able to continue to post building codes on its website for the benefit of its subscribers remains to be seen. Representatives of the ICC and UpCodes differ in their opinions on how the Supreme Court decision might affect the outcome of their dispute.
The federal court hearing the case, said UpCodes attorney Joseph Gratz with Durie Tangri LLP in San Francisco, has not indicated whether the Supreme Court ruling will affect the timing of its decision.
Nevertheless, the ICC's legal representatives are encouraged by the Supreme Court outcome.
"The Supreme Court’s decision in Georgia v. Public.Resource.Org confirms that “works created by . . . private parties” are protected by copyright and distinct from content authored by judges or legislators as part of their official duties," said ICC attorney Kevin Fee of Morgan Lewis in Washington, D.C.
"This decision confirms that the International Codes (I-Codes) developed by the International Code Council are entitled to copyright protection," Fee said. "Accordingly, UpCodes’ wholesale copying of the I-Codes for its shareholder’s personal benefit constitutes willful copyright infringement."
UpCodes' attorney sees it differently. "It’s difficult to see how the ICC or NFPA (National Fire Protection Association) can claim to own copyright in, for example, the California Building Code, when that’s the law in California, and no one can own the law," Gratz said. "The court was clear that no one can own the law. That’s good news for everyone who cares about the rule of law and everyone’s ability not just to read the law but to speak the law.”
According to Scott Reynolds, co-founder of UpCodes, the Supreme Court ruling is a "monumental step forward for the industry and open access to our laws," as well as a potential boost for construction industry technology.
"Rulings like this open opportunities to innovate and create new workflows," Reynolds said.
For example, he said, UpCodes recently released a new product that calculates a project's code requirements based on user inputs.
"This should not only save time navigating code requirements but bring much-needed transparency to the process," Reynolds said. "That's just one example of a way the industry can benefit from open access. With this new ruling, we hope to see increased access to the regulations and innovative workflows that will benefit the industry as a whole."
Gratz pointed to the Supreme Court's vote in general and suggested it could reflect the justices' views about technology.
"It’s interesting that the decision wasn’t split along ideological lines but instead by age," he said. "The youngest five justices were in the majority, and the oldest four justices were in the minority. It’s possible that younger justices find arguments about the benefits of free and open information on the internet more persuasive than older justices."