Can the law be copyrighted?

UpCodes wants to fix one of the building industry’s biggest headaches by streamlining code compliance. But the Y Combinator-backed startup now faces a copyright lawsuit filed against it by the International Code Council, the nonprofit organization that develops the code used or adopted in building regulations by all 50 states.

The case may have ramifications beyond the building industry, including for compliance technology in other sectors and even individuals who want to reproduce the law. At its core are several important questions: Is it possible to copyright the law or text that carries the weight of law? Because laws and codes are often written by private individuals or groups instead of legislators, what rights do they continue to have over their work? Several relevant cases, including ones involving building codes, have been decided by different circuits in the United States Court of Appeals, which means the UpCodes lawsuit may potentially be heard by the Supreme Court. Brothers Scott and Garrett Reynolds founded UpCodes in 2016. While working as an architect, Scott says he realized how laborious code compliance is for builders, who are required by law to follow codes that determine things like the height of handrails from the ground, minimum width of openings for bedroom windows, placement of light switches or how many electrical outlets to have in a hallway. These details are important to ensure buildings are safe and accessible and an oversight may subject builders and property owners to legal penalties, fines and costly rebuilding. Firms that can afford to do so hire code consultants, but on an industry-wide level, the process of code compliance has been cited as a key reason for reduced productivity in the construction industry and rising home prices. Scott decided to leave architecture to develop tools that would simplify the process, and was joined by his brother Garrett, then a software engineer at construction management software company PlanGrid. The two completed Y Combinator’s accelerator program in 2017 and so far have announced $785,000 in funding from angel investors, Y Combinator and Foundation Capital. UpCodes’ first product, an online database, gives free access to codes, code updates and local amendments from 32 states, as well as New York City. For building professionals and others who want more advanced search tools and collaboration features, UpCodes sells individual and team subscriptions. In 2018, UpCodes released its second product, called UpCodes AI. Described as a “spellcheck for buildings,” the plug-in scans 3D models created with building information modeling (BIM) data and highlights potential errors in real time. Just as technology has dramatically streamlined the compliance process in other highly regulated sectors, including finance and healthcare, Scott and Garrett Reynolds say tools like UpCodes’ can increase productivity in the building industry. The startup currently has more than 200,000 monthly active users, and has served over 10 million page views and 2 million users since launch. It argues that its use of building codes is covered by fair use. The ICC, on the other hand, claims that products like UpCodes’ database harm its ability to make revenue and continue developing code. The ICC wants UpCodes to take down the building code on which it claims copyright, and has also sued for damages.

Making building codes more accessible

Served on UpCodes in September 2017 by the ICC and the American Society of Construction Engineers (ASCE), the lawsuit also names each of the brothers as a defendant. (UpCodes settled out of court with the ASCE).

<div class="article-block block--pullout block--right">
    <blockquote>
        ‘We have a very long tradition that in a society governed by the rule of law, people have the right to access the law by which they are governed.’                          <cite>Corynne McSherry, legal director of the Electronic Frontier Foundation</cite>
                </blockquote>
</div>

The brothers say they were shocked because they believed they were covered by the fair use doctrine. In the US, fair use is determined using four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken and the effect of the use on the potential market for or value of the copyrighted work. In one of the circuit court cases that involved building code, Veeck v Southern Building Code Congress International (2002), the judges ruled that when model codes are enacted into law, they enter the public domain. “The people who are impacted are obviously architects, engineers, industry professionals, but also any homeowners or people living in a house or apartment are affected, too,” says Scott Reynolds. “If you want to do a renovation or move a wall or add an extension to your house, it is the exact same law that governs those as well. It’s a pretty dangerous precedent to set, copyrighting law in a democracy.”
The brothers see their database as an easy-to-use resource for anyone who wants to research building code. For example, they say they heard from an older couple who used UpCodes’ free access to confirm they had the right to demand a broken elevator in their building be fixed within a certain timeframe. Formed in 1994 by the merger of three regional model code groups, the International Code Council is a nonprofit with 64,000 members headquartered in Washington DC. Its model codes and standards are developed by committees made up of volunteers from its membership and ICC staff. The ICC lobbies for the code to be enacted into law, and earns revenue by selling code books and running accreditation programs. Some places, including Michigan, direct people who want to research building codes to buy the books from the ICC’s site. The ICC’s website has code posted for free viewing, but copy and paste, highlighting, printing and other functions are disabled unless users pay a subscription fee. Scott and Garrett Reynolds say this makes it more difficult to research code compliance, especially for non-professionals. UpCodes uploads building codes from various sources, including government websites, the ICC’s site and ICC code books ordered online, scanned and put into its database. The ICC argues that this violates its copyright and hurts the organization’s ability to raise revenue through code book sales. “What is really at the crux of this lawsuit is that we develop the highest quality codes that are adopted and used by governments at essentially no cost to the taxpayers and UpCodes is misappropriating ICC codes to generate their for-profit business,” says Mel Oncu, ICC’s general counsel. When adopting code, many jurisdictions look at what others are doing, which has helped increase the use of ICC’s code. But codes still vary between cities and states, with the Economist reporting in 2017 that American counties and municipalities use a combined total of 93,000 different building codes, and are updated frequently, adding another layer of complexity to the compliance process. Corynne McSherry, legal director of digital liberties advocacy group the Electronic Frontier Foundation, says at stake in the case is the principle of access to the law. “Many of us don’t think about this area of law, but it’s one of the most influential to our daily lives. We think of law in terms of what we see onscreen, but not too many of us normally have to engage with a crucial constitutional problem like those portrayed in movies. Hopefully most of us don’t have to encounter criminal law that much. But building codes actually shape our daily lives in incredibly concrete ways,” McSherry says. Because the codes are legally binding, “that makes a pretty significant difference under copyright law and under fundamental constitutional law. We have a very long tradition that in a society governed by the rule of law, people have the right to access the law by which they are governed,” she adds.

An issue that’s come up before

Questions surrounding copyright and access to the law have been litigated several times in the United States courts of appeals. Two cases in particular may help UpCodes’ argument: Building Officials and Code Administration (BOCA) v Code Technology (1980) and Veeck v Southern Building Code Congress International (SBCCI) (2002). Two more recent cases involving Public.Resource.org, a nonprofit group that publishes public domain materials to its website, may also bolster UpCodes’ position: Code Revision Commission v Public.Resource.org (2017) and American Society for Testing and Materials et al. v Public.Resource.org (2018). BOCA (one of the three groups that merged into ICC in 1994) developed a model building code that was adopted by Massachusetts, with some minor modifications, which BOCA then published as the Commonwealth of Massachusetts State Building Code. When private publisher Code Technology began publishing and selling its own edition of the code, BOCA sued. The case made it to the First Circuit, which ruled in Code Technology’s favor, stating that it was “far from persuaded that BOCA’s virtual authorship of the Massachusetts building code entitles it to enforce a copyright monopoly over when, where and how the [code] is reproduced and made publicly available.” Then more than two decades later, another case resulted in a similar ruling. The Southern Building Code Congress International, another one of the three regional groups that formed the ICC, published a model building code adopted by local governments, including the towns of Anna and Savoy in Texas. Peter Veeck, who ran a website with free information about North Texas, bought copies of the code from the SBCCI, then scanned and uploaded them. When the SBCCI demanded he stop, Veeck responded in a court filing that posting the code did not violate the Copyright Act and was covered by fair use. The SBCCI counterclaimed for copyright infringement. While the district court ruled in the SBCCI’s favor, the appeal made it to the Fifth Circuit, where Judge Edith Jones wrote in her opinion for the nine-judge majority that “as law, the model codes enter the public domain and are not subject to the copyright holder’s exclusive prerogatives.” The SBCCI’s attempt to appeal to the Supreme Court was denied. Building codes and copyright were also at the center of the two cases involving Public.Resource.org. A lawsuit filed by the state of Georgia’s Code Revision Commission in 2015 sought to stop it from publishing the Official Code of Georgia Annotated (OCGA) after founder Carl Malamud purchased a hard copy of the OCGA, scanned it and sent copies on USB sticks to Georgia legislators. The Code Revision Commission argued that the annotations they wrote placed it under state copyright, but the Eleventh Circuit ruled in Public.Resource.org’s favor last year. In another recent case, six industry groups, including the American Society for Testing and Materials, sued Public.Resource.org for scanning and publishing building, fire and safety codes they considered their copyrighted property. After the District Court for the District of Columbia ruled against Public.Resource.org, the case went on appeal to the DC Circuit. In July 2018, a three-judge panel reversed the decision, and sent the case back to the district court for further consideration, stating that “in many cases, it may be fair use for PRO to reproduce part or all of a technical standard in order to inform the public about the law.” One difference between the Public.Resource.org cases and UpCodes’ is that Public.Resource.org is a non-commercial group, a fact that strengthens their fair use argument. UpCodes, on the other hand, is a commercial company, which will become part of the fair use analysis if their case makes it to trial. But that is not a decider, says McSherry, who represented Public.Resource.org in both cases, and the judges are likely to consider the Public.Resource.org cases, as well as the Veeck and other building code cases. Because the Veeck case never made it to the Supreme Court, that means it hasn’t heard a case on the copyright availability of legal codes, or codes with the force of law, in a very long time, says Joe Gratz, a lawyer who has litigated several high-profile internet copyright and trademark disputes and is representing UpCodes and the Reynolds brothers. This opens the possibility of the ICC lawsuit making it to the Supreme Court. “So now you have at least three of the circuits — DC, Fifth and Eleventh — all totally lined up, effectively saying that Veeck was right,” Gratz adds.

The ICC’s argument

But the ICC’s position is that the Veeck case is “bad law,” says Oncu, adding that the decision was made two decades ago, before developments in technology allowed the organization to host free access to codes on its own website. The ICC’s lawyers note that the organization also works with third-party distributors that license the code. “UpCodes could have come to ICC at any point and asked to lawfully reproduce the codes that we own. The idea that they can’t accomplish their mission without violating our copyright doesn’t make much sense to me,” says Oncu. (In response, Garrett Reynolds says “It’s absurd to license the law.  ICC thinks they’re the gatekeepers and anyone wanting to share the law needs to pay their toll.  ICC doesn’t get to decide who’s allowed to create new innovations to help people follow the law.” UpCodes did not ask ICC to license the code.) There are two copyright cases, decided in circuit court, that support ICC’s position, says lawyer Kevin Fee, a Morgan Lewis partner who is representing the organization: CCC Information Services v. Maclean Hunter Market Reports (1994) and Practice Management Information v. American Medical Association (1998).

<div class="article-block block--pullout block--left">
    <blockquote>
        ’The idea that they can’t accomplish their mission without violating our copyright doesn’t make much sense to me.’                          <cite>Mel Oncu, International Code Council’s general counsel</cite>
                </blockquote>
</div>

In 1994, the Second Circuit sided with Maclean, publisher of used car valuation reference Red Book, which alleged CCC, a data and service provider for the automotive industry, violated its copyright by uploading information from the guide to its online network. In its decision, the court said “We are not prepared to hold that a state’s reference to a copyrighted work as a legal standard for valuation results in loss of the copyright.”

In the second case, Practice Management Information, a medical coding products company, sued the American Medical Association over the use of Current Procedural Terminology (CPT), a medical code set that is required by Medicare and HIPAA and appears in the Federal Register. Practice Management claimed that this meant AMA’s copyright was invalid, but the Ninth Circuit disagreed, writing in its 1997 decision that “the AMA’s right under the Copyright Act to limit or forgo publication of the CPT poses no realistic threat to public access.”

The ICC claims that its training and education certification business isn’t enough to fund code development. “Copyright protection of our codes is essential to our ability to continue to update our codes,” says Oncu. She adds that the ICC believes if the lawsuit is ruled in UpCodes’ favor, it may potentially set a precedent that will make it difficult for it to have a revenue stream and continue creating high-quality codes. Scott and Garrett Reynolds, however, say that the ICC appears to have healthy revenue. In its 2016 annual report, the ICC said its consolidated revenue in 2015 was $66 million, an increase of $4.3 million compared to 2014, and that it “consistently records over $1 million in sales per month” through its online store. Then from 2015 to 2016, ICC’s revenue increased by $12 million, according to a report presented by chief executive officer Dominic Sims at an annual meeting. (The ICC did not disclose an amount for consolidated revenue in its 2017 annual report, and hasn’t released its 2018 annual report yet.) The UpCodes founders also note that Sims, the ICC’s CEO, was paid $709,000 in 2016, according to a tax filing, much more than the $104,000 median annual salary for nonprofit CEOs. (Oncu says that ICC’s salaries are comparable to other standards organizations.)

Potential implications for innovation

One of UpCodes’ angel investors, Cyrus Lohrasbpour, decided to back the company when he saw them present during Y Combinator’s Demo Day. Lohrasbpour says he was impressed by the accessibility of the website and its team collaboration tools.

“I immediately understood the value proposition of the company,” he says. “It was hard for me to understand why building codes didn’t have something like this already.” Lohrasbpour was one of two investors deposed by the ICC as part of the lawsuit, but despite being questioned for five hours by lawyers, he says the experience made him more determined to support UpCodes. “If you invest in a company that will disrupt an incumbent, there is always a chance that something like this occurs.”

Scott and Garrett Reynolds say that lawsuits like the one they are facing may potentially deter other developers from working on tools to automate building and safety processes, such as calculating fire resistance in walls. The UpCodes suit, and the other cases that came before it, aren’t just relevant to builders. Technology has been able to streamline the process of regulatory and legal compliance in several industries, but innovation may slow if would-be founders are unclear about how copyright law applies to them. The Electronic Frontier Foundation takes on clients like Public.Resource.org pro bono because “lawsuits can be a way of shutting down innovation in its infancy,” says McSherry. “It can be intimidating to people trying to experiment in this space.” ICC’s stance is that it is already making its code more accessible by putting it online. “Code compliance has never been easier. If you wanted to access the codes before the internet, you had to buy a hard copy of the codes or go to the library to figure it out. Now ICC has made its codes available online for free. All you need is a phone in your hand or internet access to know what the codes say,” says Fee. But UpCodes’ argument is that part of the value of their product is its ease of use, including the ability to cut, paste and highlight text, which ICC’s online codes lack unless you pay a subscription fee. At the same time, the government website of many municipalities direct residents to the ICC’s website to read or purchase code, including Michigan and California.