notice of the law” because those codes had themselves become the law. See Suffolk, 261 F.3d at 194.[1] While the need for economic incentives might outweigh due process concerns as to works that do not carry the force of law, the Court is persuaded that this outcome will almost certainly not be the case as to works that do constitute the law. Accordingly, the Court will consider ICC’s need for economic incentives only insofar as the I-Codes as Adopted do not, in fact, embody the law.
- 5. Constitutional Considerations
- a. The Takings Clause
ICC next states that if governmental adoption of model codes prevents private authors from enforcing their rights against copiers of the enacted codes, that would effect an
- ↑ ICC argues due process is satisfied because it makes its codes available for free in libraries and its controlled publicACCESS site. However, BOCA and Veeck explicitly rejected the same argument, noting that ICC’s predecessors would effectively control the terms of access to the law. See supra Section II.C.2. That ICC does not allow members of the public to freely print or download copies of the enacted laws for their own use also cuts against the notion that ICC already provides “free access” to the law. Indeed, over one hundred years ago, the first Justice Harlan suggested there were no limits on the extent to which the laws could be shared. See Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (“[N]o one can obtain the exclusive right to publish the laws of a state in a book prepared by him. … [A]ny person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual.”); cf. Sparaco v. Lawler, Matusky, Skelly, Eng’rs LLP, 303 F.3d 460, 466 (2d Cir. 2002) (noting that “historical, scientific, or factual information belongs in the public domain, and … allowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge”).
39
