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.
 
HENRY H. PERRITT, JR.'S MOTION FOR LEAVE TO FILE AMICUS BRIEF

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.

CERTIFICATE OF SERVICE

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.
 

AMICUS BRIEF OF HENRY H. PERRITT, JR.

Summary of argument

Acceptance of the position of SBCCI in this case would allow private entities to maintain monopolies over public law, denying access to that law to citizens bound by it, to republishers, to public entities originally adopting the law. Such a state of affairs would violate due process and would be incompatible with democratic principles and a Rule of Law. This could avoid that result by adopting any one of several interpretations of federal copyright law, and its Constitutional authorization. It can and should conclude that draft public laws are ineligible for copyright protection in the first instance; that inducing a public entity to adopt a privately drafted law puts that private draft into the public domain; that republication of public law is fair use, regardless of the will of the any copyright owner of the draft law; or that injunctive relief against republication is unavailable although reasonable damages, as a kind of compulsory license are available.

Background and Interest of Amicus Curiae

I am the Dean and a Professor of Law at Chicago-Kent College of Law at the Illinois Institute of Technology ("IIT"), and also serve as Vice President for the downtown campus of IIT. I have conducted research and scholarship on the relationship between information technology and law since the mid-1980s. I authored one of the first studies on that relationship for the Administrative Conference of United States, which resulted in adoption of a formal ACUS Recommendations. Subsequently, I authored recommendations on freedom of information concepts applied to electronic formats, which was subsequently adopted by the board of governors of the American Bar Association. I advised the Office of Management and Budget in the Executive Office of the President of the United States in the Bush and Clinton administrations on information policy for the federal government as new technologies, particularly the Internet and World Wide Web, opened the possibility for low-cost easy-to-use methods for citizens to access legal materials from their homes and offices. This work culminated in a major report at the beginning of the Clinton Administration, entitled "PUBLIC INFORMATION IN THE NATIONAL INFORMATION INFRASTRUCTURE, Report to the Regulatory Information Service Center, General Services Administration, and to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, May 20, 1994."

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

Peter Veeck owns and operates a service physically located and operated in Denison, Grayson County, Texas, which provides free access via the Internet to information by or about the area of Texas north of Dallas, including the area's codes and ordinances. As part of the service known as "Regionalweb" <http://regionalweb.texoma.net>, Mr. Veeck has posted the ordinances which the cities of Savoy and Anna, Texas have adopted, including the model codes authored by Southern Building Code Congress International, Inc. (hereinafter SBCCI).

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

Copyright law seeks to balance economic interests of the copyright owner and the public interest in the free flow of information. This case illustrates one of the most difficult aspects of the conflict: a situation in which the economic interests of an author of regulatory material must be balanced against the fundamental right of the citizenry have access to the laws that regulate them.

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

However plausible this argument, it cannot prevail. To accept it would allow a private entity to control access to the public law. To understand why the argument cannot prevail, it is important to understand the full range of rights and powers afforded a copyright owner under the Copyright Act.

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

The question then is what particular doctrine under copyright law should be used to avoid this result. Several possibilities exist: any draft law could be denied copyright in the first instance on the grounds that its content is factual and thus outside the copyright power of Congress, under Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1990). The private developer of the codes could be deemed to place them in the public domain whenever it persuades a public entity to adopt them as law. The republication of publicly adopted codes could be treated as fair use. The copyright owner could be deemed to have granted an implied license to the public entity to authorize the publication of its work. Equitable discretion in the federal courts could be used to deny injunctive relief against the re-publisher while fashioning appropriate compensation to the copyright owner -- a kind of compulsory license arrangement.

Each of these doctrinal approaches has advantages and disadvantages.

Implied license

The implied license approach is easiest to reject. The possibility of an implied license can be eliminated by explicitly denying an intent to license. This gives too much power to a private copyright owner to deny

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

Copyright unavailable for factual content

The Feist case recognizes that copyright protection is unavailable for factual information. Under an extension of Feist, copyright protection would be unavailable for public law. Such lack of protection for public law would be based on the proposition that the content of such a work is factual, and therefore ineligible for copyright protection. This would enjoy doctrinal support from the Feist and Matthew Bender cases, although it would necessitate considerable extension from context of those cases. Still, this approach would have the virtue of simplicity. It would say to drafters of regulatory or statutory test, "If you want to write a law, know from the outset that your draft law will not be clothed with copyright." Then, there would not be any occasion for dispute over whose initiative it was that led to the adoption of such a draft law -- problems associated with public domain approach.

Public domain

The author of a would-be public law would be entitled to copyright protection once the authorship is fixed -- assuming the other requisites of copyright protection have been met. If the copyright owner induces a public entity to adopt its work as public law, such adoption would place

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

Under this approach, competing publishers would be allowed to re-publish the work, but would potentially be obligated to compensate the copyright owner, subject to judicial supervision. The compulsory license approach is attractive because it intrudes least on the prerogatives of the private copyright owner. The possibility of an award of damages, of course, would be an inducement for private negotiation of licenses. The difficulty with this approach is that it still puts a private entity in the position of controlling access to public law, albeit with some degree of judicial supervision. If market-based criteria are used to set the price of the compulsory license, there is no assurance that the resulting license fee and its impact on price for public access would be such as to permit appropriate levels of public access to the public law. Moreover, this

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

That leaves fair use. This court could afford some breathing space for Mr. Veeck by defining means of publication that would constitute fair use and thus could not give rise to liability for copyright infringement. The fair use concept, as written into section 107 of the copyright Act of 1976, 17 U.S.C. 107 (1994), was meant to be a flexible safe harbor for areas where public interest conflicts sharply with the naked attributes of copyright ownership. The fair use concept involves application of four criteria:

(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

Whichever doctrinal path ends up being most attractive to this court, this is an important case, and this court's decision will be an important precedent.

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.