SBCCI argued much the same in Veeck. The Solicitor General noted that 15 U.S.C. Section 272 was not probative because federal agency action was not at issue, and “the statute in any event does not address the legal consequences of governmental adoption of a particular code on the ability of members of the public to make copies.” Solicitor General’s Brief at 17. The Court sees no reason to conclude otherwise here.
Finally, ICC argues that 2014 guidance from the Office of the Federal Register indicates that Veeck was incorrectly decided. (See “2014 OFR Guidance,” Wise Decl. Ex. 64.) However, the 2014 OFR Guidance simply states “the Veeck decision … [has] not eliminated the availability of copyright protection for privately developed codes and standards referenced in or incorporated into federal regulations. Therefore, we agreed with commenters who said that when the Federal government references copyrighted works, those works should not lose their copyright.” Id. at 66268.
Veeck imports that an SDO has no right to restrict distribution of laws incorporating its copyrighted materials, but that does not mean the SDO has lost all copyright protection in the underlying model code. The
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