district court and a panel of the Fifth Circuit granted SBCCI’s motion for summary judgment.
The en banc Fifth Circuit reversed and held that Veeck had posted only the law. The court analyzed BOCA at length, agreeing that the Government Edicts doctrine derived from a notion of metaphorical citizen authorship of the law. See id. at 795–799. And like the First Circuit in BOCA, the Fifth Circuit did not rely on that conception alone, again highlighting the concerns implicated by a private party’s exercise of copyright with respect to enacted building codes. See id. at 799 (stating that the “‘metaphorical concept of citizen authorship’ together with the need for citizens to have free access to the laws are the ultimate holding of Banks”). SBCCI argued that the need for free access to the law was satisfied because Anna and Savoy both made their building codes available for public inspection, but the Fifth Circuit was not convinced.[1] Though the Fifth
- ↑ Specifically, the Veeck court rejected SBCCI’s arguments with the following observation: “We disagree that the question of public access can be limited to the minimum availability that SBCCI would permit. … public ownership of the law means precisely that ‘the law’ is in the ‘public domain’ for whatever use the citizens choose to make of it. … [T]o say, as Banks does, that the law is ‘free for publication to all’ is to expand, not factually limit, the extent of its availability. Moreover, as the BOCA decision observed, it is difficult to reconcile the public’s right to know the law with the statutory right of a copyright holder to exclude his work from any publication or dissemination. SBCCI responds that due process must be balanced against its proprietary rights and that the fair use doctrine as well as its honorable intentions will prevent abuse. Free availability of the law,
29
