Monday, January 10, 2011

Can I repost the California Building Codes?

Dear Rich: Is it legal for us to add Title 24 of the California Code of Regulations (otherwise known as the California Building Code) to our website. I got the HTML version of the regulations from Public.Resource.Org. The notice on the top of the title page says: "Public Domain: U.S. Court of Appeals, Fifth Circuit, 99-40632." Please tell if you see any issues with the legality of this. The Public.Resource.Org folks believe the California Codes are in the public domain. The private organizations that create these building standards believe that they are protected under copyright law. Like the ladies in the Certs ads, they both may be right, at least according to a 2002 decision, Veeck vs. SBCCI. In that case, a website owner posted a state model code on his website. The Fifth Circuit ruled that once a model code was adopted as a state's law, it fell into the public domain. The ruling is based on two theories: (1) The Supreme Court has held that the law is not copyrightable; and alternatively, (2) the law consists of facts and facts can't be copyrighted. Because model codes are not always adopted as written, the Fifth Circuit separated the original model code (copyrightable) from the code as adopted (public domain).

Bottom line dept. The Veeck opinion is binding only on federal courts in Texas, Louisiana and Mississippi.  Other federal circuits could disagree with this decision particularly the Second (New York) and Ninth Circuit (California) both known for favoring copyright owners. The Supreme Court refused to hear this case and let it stand (a decision supported by the U.S. Government's Solicitor General). The fact that PublicResource.Org has not been shut down and that 8 years have passed since Veeck was decided without any other major cases on the subject may indicate that copyright owners of model codes are not eager to proceed against those who post the codes.

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