July 3, 2002
It seems self-evident that no individual should be allowed to own
a law that all of us must obey. Laws and regulations are adopted, we
hope, through the process of self-government, and citizens must enjoy
the right to copy and restate the laws.
Over the past several decades, some private organizations have
quietly assumed ownership over certain legal requirements, ranging from
building safety codes to medical billing terminology. Their trick
(some might call it a scam) has been to give drafts of regulations and
codes to the government without charge, induce the government to
require their use, and then make a profitable business out of selling
copies of the regulations or codes to those who must comply.
The ownership of legal regulations is worth a lot of money.
Senate Minority Leader Trent Lott estimated that the American Medical
Association receives a reported $71 million a year in royalties and
book sales by controlling the codes that are required for all health
The town governments of Anna and Savoy in Texas require compliance
with building codes developed by the Southern Building Code Congress
International (SBCCI). A retired pilot and operator of a non-
commercial website, Peter Veeck, posted these safety requirements on
his site after finding them difficult to access.
SBCCI asserted that it owned a copyright in the codes and
litigated against Veeck to get him to remove them from his website.
Veeck responded by arguing that legal requirements should not be owned
The federal district court sided with SBCCI, which was supported
on appeal by at least ten other groups that claim to own other
regulations. The case ended up before the entire Fifth Circuit Court
of Appeals, which ruled on June 7 in favor of Veeck.
Judge Edith Jones, who wrote the majority opinion in Veeck v. SBCCI, held that model
codes enter the public domain to the extent that they become law, and
laws, like facts, cannot be copyrighted. She applied an 1888 U.S.
Supreme Court decision, Banks v. Manchester, which rejected a claim of
copyright in the opinions of state courts.
Judge Jones noted that citizens must be free to recite the law, as
Veeck did and as many others might do in quoting and criticizing
complex legal requirements. Those who develop the codes can still reap
financial gain by publishing their own commentary and annotations along
with the codes.
Judge Jones concluded that denial of copyrights in legal
requirements is entirely consistent with the Copyright Clause in the
Constitution. Article I, Section 8, clause 8 states that the purpose
is "To promote the Progress of Science and useful Arts."
Copyrights and patents are federally granted monopolies and thus
very different from real property. Thomas Jefferson adamantly opposed
state-conferred monopolies and even wanted to include a prohibition
against them in the Bill of Rights.
It was, after all, a despised state-conferred tea monopoly that
led to the Boston Tea Party, which helped spark the American
Revolution. But James Madison and others persuaded Jefferson of the
value of granting patent and copyright monopolies for limited times,
and Jefferson served as our first patent examiner.
Colorful disputes over copyrights have continued throughout our
history, and the U.S. Supreme Court this fall will hear a case which
many think is the most important copyright case in decades. In Eldred
v. Ashcroft, the Court will address the constitutionality of the Sonny
Bono Copyright Term Extension Act, which was rushed through both Houses
of Congress in a single day on October 7, 1998.
This law is informally known as the Disney Copyright Law because
some consider it a billion-dollar federal handout to the Disney
Company. It extended the copyrights on Mickey Mouse, Donald Duck,
Pluto, Goofy, Winnie the Pooh and other cartoons and works scheduled to
expire over the next several years.
The Copyright Clause in the Constitution is precise in stating
that copyright and patent monopolies can be conferred by Congress "for
limited times." The implementing law passed by the first Congress set
the limited time at 14 years.
However, Congress has repeatedly extended the time of existing
copyright monopolies. The Disney Law mocks the constitutional
requirement of "limited times" by extending copyright protection to 95
The Supreme Court agreed to consider whether this copyright
extension is unconstitutional under the Copyright Clause and also
whether it conflicts with the First Amendment rights of others to enjoy
and use the material in the public domain after the limited time
Judge Edith Jones' rolling back of copyright abuse in the Veeck
decision may foreshadow a decision in Eldred which could cause a long
overdue correction of congressional abuse of the Copyright Clause.
Since the rights of authors and inventors originate in the same
clause in the Constitution, the Eldred decision could have a mighty
impact on the issue of prescription drugs whose patents are about to
expire. Could Congress vote an extension of patents on prescription
drugs in order to give a windfall to certain pharmaceutical
corporations and prevent others from manufacturing generic drugs to
sell at a fraction of the price?