Comes now Henry H. Perritt, Jr., of Chicago, Illinois, and moves for leave of Court to file an amicus curiae brief in the instant case. Dean Perritt is a recognized international expert on the relationship between law and information technology, and more particularly on the application of freedom-of-information concepts in the context of electronic publication of primary legal material through the Internet, including the impact of copyright law.

Based on his involvement with governments, policymakers and scholarship in this area, Dean Perritt is concerned with the central legal issue in this case, i.e., whether a private organization can control access to public law, thereby potentially denying citizens of Texas and the United States of America of ready and affordable knowledge of the legal standards to which they are required to conform their conduct.

In order to make the Court aware of the public interest issues in this case, Dean Perritt asks that he be allowed to file the attached amicus brief.

WHEREFORE, movant Henry H. Perritt, Jr. asks for leave to file an amicus brief.

Respectfully submitted,

/s/

Henry H. Perritt, Jr.

Dean

Chicago-Kent College of Law

Illinois Institute of Technology

565 West Adams Street

Chicago, IL 60661

Fax (312) 906-5010

Voice (312) 906-5010

Email Error! Reference source not found.

I hereby certify that on this the ___ day of December, 1998, a true and correct copy of the foregoing document and the attached brief was served via first class mall, postage prepaid upon the following counsel of record:

Robert J. Veal

Veal &; Associates

200 Cahaba Park Circle, Suite 125

Birmingham, Alabama 35242

Patrick F. McGowan
Akin, Gump, Strauss, Hayer & Feld, L.L.P.
1700 Pacific Ave., Suite 4100
Dallas, TX 75201

Eric Weisberg

200 W. Main Street

Denison. Texas 75020-3026

________________________________________________________

Henry H. Perritt, Jr.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

 

PETER VEECK d/b/a		§
REGIONALWEB,			§
	Plaintiff	§
		§
VS.		§		CASE NO. 4:98CV63
		§
SOUTHERN BUILDING CODE			§
CONGRESS INTERNATIONAL, INC.			§
	Defendant.	§

Summary of argument

Background and Interest of Amicus Curiae

I have worked as a consultant to the European Commission on application of freedom of information principles to European and national governments in Europe.

I organized and continue to implement "Project Bosnia," which has enabled a variety of public and private institutions of the former Yugoslavia to use the Internet to enhance a rule of law, by making basic legal information available to citizens, to the burgeoning independent bar in those countries and to the international community.

I have written a number of law review articles on the relationship between freedom of information principles and public access to public information through the Internet and otherwise, and also have written about the relationship between the Internet and the evolution of legal institutions in international context:

Electronic Acquisition and Release of Federal Agency Information: Analysis of Recommendations Adopted by the Administrative Conference of the United States, 41 ADMIN.L.REV. 253 (1989).

Chap. 36, Federal Administrative Procedure Act, 3 WEST'S FEDERAL PRACTICE MANUAL (REV.2D ED. 1989)

Federal Electronic Information Policy, 63 TEMPLE L.REV. 201 (1990).

Determining the Content and Identifying Suppliers of Public Information in Electronic Form, 17 GOV'T PUB. REV. 325 (1990).

The Electronic Agency and the Traditional Paradigms of Administrative Law 44 ADMIN.L.REV. 79 (1992)

Market Structures for Electronic Publishing and Electronic Contracting in BUILDING INFORMATION INFRASTRUCTURE: ISSUES IN THE DEVELOPMENT OF THE NATIONAL RESEARCH AND EDUCATION NETWORK (Harvard University and McGraw-Hill 1992)

Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 HARV.J.LAW & TECH. 65 (1992)

Electronic Records Management and Archives, 53 U.PITT.L.REV. 963 (1992).

Tort Liability, the First Amendment, Equal Access, and Commercialization of Electronic Networks, 2 ELECTRONIC NETWORKING (Meckler) 29 (Fall, 1992)

Format and Content Standards for the Electronic Exchange of Legal Information, 33 JURIMETRICS J. 265 (1993)

Introduction, The Congress, the Courts and Computer Based Communications Networks: Answering Questions about Access and Content Control, Symposium, 38 VILL.L.REV. 319 (1993)

Dispute Resolution in Electronic Network Communities, 38 VILL.L.REV. 349 (1993)

Commercialization of Government Information: Comparisons between the European Community and the United States, 4 INTERNET RESEARCH 7 (Meckler Summer 1994)

Unbundling Value in Electronic Information Products: Intellectual Property Protection for Machine Readable Interfaces, 20 RUTGERS COMP. & TECH. L.J. 415 (1994)

President Clinton's National Information Infrastructure Initiative: Community Regained?, 69 CHI.-KENT L.REV. 991 (1994) (Charles Green Lecture)

Video Depositions, Transcripts and Trials, 43 EMORY L.J. 1071 (1994)

Access to the National Information Infrastructure, 30 WAKE FOREST L.REV. 51 (1995)

Sources of Rights to Access Public Information, 4 WILLIAM & MARY BILL OF RIGHTS J. 179 (1995)

Should Local Governments Sell Local Spatial Databases Through State Monopolies?, 35 JURIMETRICS J. 449 (1995).

Payment Infrastructures for Open Systems, 3 DATA LAW REPORT 1 (No. 1, July, 1995)

The Information Highway: On Ramps, Checkpoints, and Tollbooths, 13 GOV'T INFO. Q. 143 (1996).

Mapping the Information Superhighway, 3 INT'L J. LAW & INFO. TECH. 201 (1996)

Legal and Technological Infrastructures for Electronic Payment Systems, 22 RUTGERS COMP. & TECH. L. J. 1 (1996)

Jurisdiction in Cyberspace, 41 VILL. L. REV.1 (1996)

Reassessing Professor Hibbitts's Requiem For Law Reviews, 30 Akron L. Rev. 255 (1996)

Property and Innovation in the Global Information Infrastructure, 1996 U. Chi. Legal F. 261 (1996)

Is the Environmental Movement a Critical Internet Technology?, 8 VILL. ENV. L. J. 321 (1997)

Information Access Rights Based on International Human Rights Law, 45 BUFF. L. REV. 899 (1997) (with Christopher J. Lhulier)

Cyberspace Self-Government: Town-Hall Democracy or Rediscovered Royalism?, 12 BERKELEY TECH. L. J. 413 (1997)

Electronic Freedom of Information, 50 ADMIN. L. REV. 391 (1998)

Cyberspace and State Sovereignty, 3 J. INT'L LEGAL STUD. 155 (1997)

The Internet as a Threat to Sovereignty? Thoughts on the Internet's Role in Strengthening National and Global Governance, 5 IND. J. GLOB. LEG. STUD. 423 (1998)

I am the author of "Law and the Information Superhighway," a seven hundred fifty page text on the major legal issues that arise from use of the Internet for electronic commerce and as an adjunct of public participation in government. Because I supplement this work annually, I keep up-to-date on developments in law and information technology.

I was responsible for launching and operating one of the first World Wide Web sites facilitating access to public : www.cilp.org.

I am a member of the bar of Virginia, Pennsylvania, the District of Columbia, Maryland, Illinois, and the United States Supreme Court.

I submit this in my individual capacity as a citizen, lawyer, and law professor, rather than on behalf of my employer or any other organization or entity.

Factual Background of Case

SBCCI developed and maintains a set of model codes collectively known as the Standard Codes. These codes now include The Standard Building Code. The Standard Plumbing Code, The Standard Mechanical Code, and the Standard Fire Prevention Code. The Standard Codes are a source for providing minimum construction standards to safeguard life, health and public welfare for all types of buildings and structures.

SBCCI threatened to sue Mr. Veeck for publishing the ordinances in question on the Internet and demanded that he cease doing so, immediately, or suffer consequences of suit.

Mr. Veeck filed a complaint for declaratory judgment in this court, to which SBCCI answered and filed a counterclaim, in which it sought injunctive relief and damages on copyright law theories, in counts I - V.

On September 24, 1998, the district court adopted the Magistrate Judge's recommendation and denied SBCCI's motion for a preliminary injunction.

Copyright Law Represents a Balance

This case is more difficult than the situation in which primary legal

material is authored by a legislature, court, or administrative agency and then republished by a private entity which claims copyright in the information. Then, it is relatively straightforward to say, as the United States Court of Appeals for the Second Circuit recently assumed in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998), that the underlying content, having been authored by public entity, is not eligible for copyright. In the case of the federal entity, section 105 of the copyright Act itself, 17 U.S.C. § 105 (1994), precludes copyright in such information. 158 F.3d at 679.

In the non-federal context, no incentive from the copyright laws is necessary to induce authorship, because the public treasury already pays the public servants who write legislation, agency rules and court decisions, and part of their duty is authoring such information. Even though no copyright is available for publicly authored material, it is possible to preserve economic incentives for value-adding republishers by allowing copyright for any original authorship contributed by the publisher, in the form of indexes, key numbers of other features qualifying as "original" under the copyright law.

This case presents greater difficulties than a case like Matthew Bender, because the original author was not a public entity, but a private entity, SBCCI. SBCCI argues that it would not engage in its useful

activity of authoring the work but for the incentives provided by copyright law.

Why a private monopoly on public law cannot be allowed

A copyright owner may withhold permission, or grant permission on whatever terms it chooses, for the acts of reproduction, distribution of copies, preparation of derivative works, public performance, or public display of the copyrighted work. 17 U.S.C. § 106 (1994). In the context of a copyright on public law, this means that a private copyright owner could completely refuse permission for any reproduction of the law. Or, it could refuse permission for any reproduction of public law except upon the payment of one million dollars per copy. Unless some limitation is imposed on a copyright in public law, there is no legal basis for regulating the price charged by a private copyright owner or forcing a private copyright owner to allow access to the law.

In other words, it is not enough for SBCCI to say as a factual representation, " we granted permission to the municipalities to allow copying and inspection of the work." The important point is their interpretation of the law does not obligate them to do that, and there is no assurance in a future case that SBCCI, or someone else similarly situated, would be willing to grant such permission. Indeed, the purpose of copyright is to enhance economic return to the copyright owner, and the copyright owner of public law could greatly enhance its income by declining permission to allow inspection or copying without the payment of a substantial fee to the copyright owner.

The position of SBCCI in this case contains the seeds of a truly disastrous phenomenon. A private association, motivated either by its members' interests in particular legal approaches, or simply by the desire to make money, would prepare codes on legal issues of great public interest. Then, it would organize an aggressive marketing force to go around the country and sell these codes to municipal and state governments. Then, having sold these codes and having induced these governmental entities to adopt them as law, it would, under SBCCI's interpretation of the copyright act, have a state granted monopoly over access to the law. The private entity could charge whatever price it chooses to citizens obligated to comply with a law. The citizens, if they

wish to comply, must have access to law, but they could not obtain access without paying tribute to a private entity.

It is important to understand that public entities themselves are not immune from liability for copyright infringement. One can envision a situation in which a privately drafted code obtains the status of uniform law, because of "marketing" by its author, and then the private copyright owner jerks the rug out from under other governmental entities, threatening to sue them for copyright infringement if they adopt the codes without paying a significant license fee to the copyright owner.

This is a situation which simply cannot be tolerated in a free society, under any reasonable interpretation of copyright law. Notice of the law is a central concept of due process. Indeed, when procedural due process is extended beyond core governmental functions, as in scrutiny of public school actions, public sector personnel actions, and private sector collective bargaining, usually the first requirement imposed on the decision maker is that it give notice of the content of the rules to which someone will be held. Allowing a private monopolist uninhibited discretion, as to who gets access to the law and at what price violates due process.

Copyright doctrines limiting a private monopoly on public law

Each of these doctrinal approaches has advantages and disadvantages.

Implied license

access to the public law, and accordingly this doctrinal approach is unattractive.

Copyright unavailable for factual content

Public domain

the work in the public domain. The public domain approach has considerable appeal to it. It is relatively straightforward. It enjoys some analogous support from instances involving other types of property, in which private ownership exists, but is extinguished when the private owner gives up his private property interest and dedicates his property to public use. Under the public domain approach, a private author of law would enjoy a private copyright of the law until the time that it takes the initiative in persuading a public entity to adopt the work as actual public law. At that point, or at the time of actual adoption, the work enters into the public domain. It would be available for the public entity or for anyone else to re-publish freely, so is to make it widely available to those bound by it.

Under this doctrine copyright would be extinguished when a private person or entity authors a proposed public law and then engages in conduct aimed at inducing public entities to adopt it. A private copyright owner could argue that the public entity reached out and appropriated private work of authorship; that the copyright owner had engaged in no inducing conduct. If that state of facts is found to have existed, it may be appropriate to allow the private copyright owner compensation, but the most appropriate way to do that would be to treat the public act

appropriating the private work as a condemnation of the private work for public use, under the eminent domain power. Then, well-established mechanisms for fixing the value and requiring the public entity to compensate the private copyright owner could be used.

The principal difficulty with the public domain approach is in defining the boundary between consensual and nonconsensual enactment.

Compulsory license

approach imposes significant transaction costs on copyright owners, re-publishers, and public entities themselves. Given the magnitude of litigation costs, this is not trivial concern.

Fair use

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

"(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of the

copyrighted work." 17 U.S.C. § 107.

The Supreme Court in the Sony v. Universal City Studios, Inc., 464 U.S. 417 (1984), and Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994), cases noted that the last factor - the market effect of the purported fair use - is the most important.

The market impact criterion is the most troubling in the public law copyright context. Under the various scenarios set out earlier in this amicus brief, the dynamics of copyright ownership depend upon public adoption of the work and of the preservation of rights of the original author. Any "leakage" of publication rights through this monopolistic wall, would have a significantly injurious effect on the market for the original work.

The second problem is that the history of legal publishing suggests that, while some non-profit entities, such as University based law schools may undertake it -- and this phenomenon is likely to increase in the Internet World Wide Web context, commercial legal publishers also play an important role in opening up public access to basic legal information. Existing fair use case law could make it difficult to afford fair use privilege to a commercial re-publisher.

On the other hand, fair use would require the least dramatic

extension of copyright doctrine, and is flexible enough to allow adaptation of boundaries between the rights of original author, the privileges of the public entity adopting the privately drafted public law, and the privileges of re-publisher through case-by-case development.

Conclusion

I know how important the evolution of copyright law is in making available to the public the benefits of new information technologies. I know from my work with the United States government, as a designer and operator of one of the first comprehensive websites enhancing access to public information, from my work with developing political systems and economies in Western Europe, as a consultant of European Commission, and my work and scholarship relating to developing democracies in Eastern Europe and China, how important it is to ensure free public access to the law, and to resist temptations to establish or
 

perpetuate any monopoly over the raw material of democracy and Rule of Law.

________________________________________________________

Henry H. Perritt, Jr.