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Can the Law Be Copyrighted?

  • 1.  Can the Law Be Copyrighted?

    Posted 04-09-2019 20:27

    Hi all,

    I worked as an architect for a few years and was frustrated with the lack of tools to help navigate all the code. I helped start UpCodes to build products to help in the compliance workflow.


    We host building codes as part of the services we offer to architects, other industry professionals, and homeowners.

    The ICC brought a lawsuit against us which we have been defending for over a year. This lawsuit threatens our ability to innovate and create products that make industry more efficient. It threatens our ability to freely discuss and operate on the codes that control the design and construction of every project throughout the country.

    TechCrunch has done a great job to cover the lawsuit:  https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/

    As a background: we are working on two products: UpCodes Web aggregates codes, integrates local amendments, and provides a search engine. UpCodes AI looks at Revit model to automatically flag code issues.


    You can help by by spreading the word - either sharing the article above or our advocacy page.



    ------------------------------
    Scott Reynolds
    ------------------------------


  • 2.  RE: Can the Law Be Copyrighted?

    Posted 04-17-2019 17:54
    I've often wondered that myself, and find this very interesting.  I think the collateral fallout of a decision would be whether all standards and sub-codes referenced in IBC, including ASTM and ANSI standards should be in the public domain, since they're applied as law, but the only way to view them is to pay the fees to view them and purchase the updates each code cycle.  I find UpCodes to be a valuable resource personally.

    ------------------------------
    John Thompson
    Production Coordinator
    Dore & Whittier Architects, Inc.
    Burlington VT
    ------------------------------



  • 3.  RE: Can the Law Be Copyrighted?

    Posted 04-30-2019 08:51
    Edited by John Workley 04-30-2019 08:52
    I checked with my "Plan Examiner Friends" and they state that if the federal government adopts a code and provides it electronically, then it is no longer copyrighted.  do you recall seeing the begining pages of some online documents that have a first page surround stating it is free.

    Also if you check out the second page of the Department of Justice's ADA document
    https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf

    it clearly states:    "Reproduction of this document is encouraged."

    ------------------------------
    Thank you from:
    John Workley AIA
    President Director of architecture
    Vocon Partners LLC and WORKLEY Architects, Inc.
    Cleveland OH
    [Phone]
    ------------------------------



  • 4.  RE: Can the Law Be Copyrighted?

    Posted 04-20-2019 15:20
    This is interesting... very interesting.  I certainly get both sides of the issue.  This same thing is happening with music and software to some extent.

    I read the article that you have linked on techcrunch.  If all the building code "data" is free, then you are just taking that data and making it easier to access and perhaps charging a fee for that?  If the fee is just for the use of the software and it's ability to access the data then I see no problem in that at all.  If ICC wants to keep making just books to sell digitally or in print, then that's their prerogative.  If they want to get more innovative like you guys, then they need to create something similar to make it easier to access the data which is what you guys have done.  Sounds to me, that if the building code data is truly free for public use, then the ICC is crying for "Special Privileges" which is no no for a free market society.  That will hinder innovation and competition.  ICC needs to really look at their revenue stream and be more innovative in the products they sell.  Sounds like they've been stagnant in that area and just doing more of the same.

    If the ICC content is actually not free, then yeah, I guess UpCodes will have to work something out with the ICC.  Just my two cents.


    ------------------------------
    Adam Hockley
    CM-BIM,Assoc. AIA
    Bartlett Cocke General Contractors
    San Antonio TX
    *Part 107 certified drone pilot
    ------------------------------



  • 5.  RE: Can the Law Be Copyrighted?

    Posted 04-22-2019 18:03
    As I understand it, if the code is incorporated into law, it has to be made available for free.  ICC and NFPA have gotten around this by providing free "public access" viewing to the codes online, but you can't copy, paste, search, etc. - only view.  If you want more functionality, you have to buy a subscription, a hard copy, or a pdf copy.  Now what happens when you take their work product and add your own functionality to it; I haven't a clue.

    ------------------------------
    Karen Campbell
    Assistant Director & Architect
    LSU Agricultural Center Facilities Planning
    Baton Rouge LA
    ------------------------------



  • 6.  RE: Can the Law Be Copyrighted?

    Posted 04-23-2019 10:49
    It makes sense that it has to be made available for free, but nothing more...but to extend that thought, shouldn't every ASTM standard that is cited as a requirement of the code also be viewable for free, since the code requires compliance with them? The annual set of construction related ASTM standards is a mere $3375.

    Transparency is a great ideal when it comes to codes, but I can see a tremendous amount of legal push back from organizations with very deep pockets, for fear of extension of this legal decision to their publications.

    ------------------------------
    John Thompson
    Production Coordinator
    Dore & Whittier Architects, Inc.
    Burlington VT
    ------------------------------



  • 7.  RE: Can the Law Be Copyrighted?

    Posted 04-23-2019 12:24
    I would think it would apply to ASTM also, just no one has made a big enough issue out of it to force them to provide access.  ICC and NFPA have only made it available in the last few years.

    ------------------------------
    Karen Campbell
    Assistant Director & Architect
    LSU Agricultural Center Facilities Planning
    Baton Rouge LA
    ------------------------------



  • 8.  RE: Can the Law Be Copyrighted?

    Posted 04-24-2019 21:43
    Who pays for all the research and testing that goes in to IBC and ASTM? Is this taxpayer money?





  • 9.  RE: Can the Law Be Copyrighted?

    Posted 04-25-2019 05:11

    Something certainly should be done.  We had a presentation locally when the 2017 ICC/Florida Building Code  was adopted.  The facilitator asked if anyone knew how much it would cost for an architect to fully equip his office with all codes and standards.  Most answered around $10K.  The actual cost is closer to $65K, the cost of a mid-level employee here in Florida.  Replacing some of the codes and standards every three years does cost a fortune.

     

    Greg Burke, FAIA, NCARB

    President

     

    2019-2020 AIA Florida State Director

    2018 American Institute of Architects College of Fellows

    2017 AIA Florida Pullara Award Winner

     

    GREGORY JOHN BURKE | ARCHITECT, PA

     

    333  17th Street, Suite J

    Vero Beach, Florida 32960

    PH: 772.299.6999

    FX:  772.299.6444

    CP: 772.473.6423

    gjburke@burkearchitects.com

     

    Florida C of A No. AA26001974

     

    This e-mail and any attachments contain Gregory John Burke | ARCHITECT, PA confidential information that may be proprietary or privileged.  If you receive this e-mail in error or are not the interested recipient, you should not retain, distribute, disclose or use any of the information and you should destroy this e-mail and any attachments and/or copies.  All information is protected by Copyright laws of the United States of America

     






  • 10.  RE: Can the Law Be Copyrighted?

    Posted 04-25-2019 10:41
    " Most answered around $10K.  The actual cost is closer to $65K,"

    HOLY SMOKES!!!!!!

    ------------------------------
    Adam Hockley
    Assoc. AIA
    Bartlett Cocke General Contractors
    San Antonio TX
    ------------------------------



  • 11.  RE: Can the Law Be Copyrighted?

    Posted 04-26-2019 12:48
    That's the thing, this legal decision SHOULD be extended to their publications as well as long as it's a legal requirement to comply with them.

    I wish you the best in this fight Scott.

    ------------------------------
    Abraham Rodriguez AIA
    Architect
    DOWA - IBI Group
    Portland OR
    ------------------------------



  • 12.  RE: Can the Law Be Copyrighted?

    Posted 04-30-2019 09:29

    All –

     

    Forgive my vagueness of memory, but I recollect that, in a majority opinion by Justice Breyer a few years ago that may have related to the constitutionality of FISA, he said "if it's not public, it's not a law". I'm no lawyer, but it seems to me that this decision has much bearing on the case in point. You can't privatize the law. It is a good that is and must remain firmly in the public domain.

     

    The business model of the ICC, NFPA, ASTM, etc. of obtaining compensation for the services they provide by restricting access to their model codes beyond the point at which such are adopted into the public law seems, in this light, fundamentally erroneous. No doubt the services they provide are important – one might say essential – to the efficient functioning of government regulation, and should be compensated by the commonwealth that enjoys them. That there is currently no practical mechanism for directly compensating this cost of government is a flaw in the law arising from the political philosophy currently prevailing. It cannot be papered over by placing the burden of compensation on citizens severally instead of society jointly. The current debate emerges from the attempt to do so.

     

    There remains the question of whether any such direct compensation actually exists and, if it does, whether it is adequate to or commensurate with the service these organizations provide. I have not seen any statement of such compensation in the current thread. If anyone has this information it would be beneficial to the discussion.

     

    Tim Fells

    Architect






  • 13.  RE: Can the Law Be Copyrighted?

    Posted 04-23-2019 14:17
    Edited by Adam Hockley 04-23-2019 14:27

    Thinking about this some more.... what about city, state, and federal laws?  Are they copyrighted?  Can we not cut/paste the entire document like the Declaration of Independence or the Constitution?  If a company wants to bundle that up in a book or digital format for the consumer, then the consumer should be able to "purchase" that for a fee if they wish if it's more convenient.  That's great then right?  So, ICC sticks with paper text, CD"s, yada yada, because they have no competition or incentive to make a better product to sell.  But, then someone new comes along and has a more innovative way to search that material then they cry foul for copyright issues when they don't even own the material?  I'm seeing someone whining about "special privileges" because now they're concerned about the monopoly they've had on this material.    

    Again, my two cents... 


    ------------------------------
    Adam Hockley
    Assoc. AIA
    Bartlett Cocke General Contractors
    San Antonio TX
    ------------------------------



  • 14.  RE: Can the Law Be Copyrighted?

    Posted 04-23-2019 14:55
    Another point to consider....UpCodes is publishing a different document than the IBC - they're publishing the State codes that incorporate but amend the IBC language - or at least in my case they are for MA...so by publishing a state code, are they actually infringing on IBC copyrighted material?  If a state digitally published their own code that was full text of the IBC plus amendments, would ICC go after them? Maybe the agreements with states or governing bodies has language about that? Do States have to pay licensing fees to ICC in order to adopt the IBC?

    ------------------------------
    John Thompson
    Production Coordinator
    Dore & Whittier Architects, Inc.
    Burlington VT
    ------------------------------



  • 15.  RE: Can the Law Be Copyrighted?

    Posted 04-25-2019 09:15
    The IBC, and I believe all other ICC products, are free to access on the ICC website:  https://codes.iccsafe.org/category/I-Codes?page=1

    IBC happens to be on page 2 of the above link, and it is not the easiest to navigate, nor is it very search friendly in the free to access version.  And yes, ICC tries to sell you printed, hard copy and digital, as well as premium online access, every chance they get.  Takes a while to find this page buried in the misdirection, but I believe because it is referenced as "law" that they had to provide free access.

    It would be great if ASTM and all the other code related bodies would do the same.  Just not sure how they would stay "in business."

    ------------------------------
    R. Ashley Coco AIA
    Coco & Coco
    Midland TX
    ------------------------------



  • 16.  RE: Can the Law Be Copyrighted?

    Posted 04-25-2019 10:42
    Good points for sure

    ------------------------------
    Adam Hockley
    Assoc. AIA
    Bartlett Cocke General Contractors
    San Antonio TX
    ------------------------------



  • 17.  RE: Can the Law Be Copyrighted?

    Posted 04-25-2019 17:34
    I just got a survey from ICC: in part
    "The International Code Council wants to hear from you! As a user of the ICC free online codes database or ICC premiumACCESS service, we would love the opportunity to learn from your experiences and interactions with our software. As we continue to innovate for our 64,000 ICC members, your feedback will help us be more responsive to your needs and make working with codes simpler and easier."
    I answered with as much passion as I could that these codes were in the public domain and we should have free access. As someone with a very small practice who uses the code rarely I cannot afford any of their options, and the free code can't be worked with easily.

    ------------------------------
    Allan Baer AIA
    Principal
    Baer Architecture NM
    Santa Fe NM
    ------------------------------



  • 18.  RE: Can the Law Be Copyrighted?

    Posted 04-26-2019 18:49
    Great discussion and so relevant!

    I'm not a lawyer and do not want to play one.  That being said, I have a hard time believing that the building codes are copyrighted.  https://www.copyright.gov/help/faq/faq-general.html

    I do not see a "Copyright" stamp on building codes I've used and I do not believe each release of the code is considered an original work of art, which is what copyrights are intended to protect.

    That being said, the ICC and other agencies perform an invaluable duty crafting and creating the codes.  They should be applauded and compensated for any interpretation or amendment to them, not access.  I'm all for free access.

    I share all this to question what should be the business model for us, as practitioners, to do our job with ever diminishing fees, and the ICC, or others, to be compensated for the work that they perform?  Any thoughts?

    ------------------------------
    Zigmund Rubel FAIA
    CEO
    A Design+Consulting
    Greenbrae CA
    ------------------------------



  • 19.  RE: Can the Law Be Copyrighted?

    Posted 04-29-2019 18:49
    Here are my thoughts on the question, "Can the Law Be Copyrighted:"

    1) In Georgia we currently use the 2012 International Building Code (IBC), which is a copyrighted document.  The copyright notice is on page ii.

    2) The 2012 IBC is not a "law".

    2) The Uniform Codes Act is codified at chapter 2 of title 8 of The Official Code of Georgia Annotated. O.C.G.A. Section 8-2-20(9)(B). This Act is what makes it a law to comply with certain codes that are adopted in Georgia.

    3) The Act directs the Georgia Department of Community Affairs (DCA) to adopt model codes, and and to publish Georgia Amendments.

    4) To the best of my knowledge, the State of Georgia does not pay the International Code Congress a fee in connection with the State's adoption of model codes.

    4) To me it makes sense for an IBC code to be a copyrighted document rather than an open source document. This gives states the confidence that a code is a fixed document, tested over time, that is not subject to alteration, unless the alteration is through a proscribed process.

    5) I know there is free access online, but I purchase hard copies and PDFs from the International Code Congress.  The prices  seem nominal, considering the effort that the ICC has expended over many years to create these codes.

    6) My impression is that in the US we have some of the best building codes and life safety codes in the world.  I do not consider it a hardship to be one of many, many people who give financial support to the code creation and maintenance process by purchasing copies of the codes.

    ------------------------------
    Joel Laseter AIA
    President
    Joel Laseter Architect PC
    Atlanta GA
    ------------------------------



  • 20.  RE: Can the Law Be Copyrighted?

    Posted 04-30-2019 21:02
    Thank you all for the comments and feedback, it's much appreciated! I just wanted to add to a few of the themes discussed.

    Looking at ICC's financial reports, it's interesting to see that the majority of ICC's revenue comes from program services, including consulting, certification, and training, which do not rely on profiting by limiting access to the law. ICC has healthy revenue streams - enough to generously compensate their executives (ex: the ICC CEO's salary is $740k, while the median non-profit CEO salary is $104k).

    There has been quite a supportive array of case law that supports the notion that law cannot be copyrighted. This includes cases from SBCCI, BOCA, ASTM, and Code Revision Comm. We document some of the relevant excerpts here:
    https://up.codes/free-law#case_law
    Interesting note: SBCCI and BOCA were 2 of the 3 organizations that formed ICC.

    The ICC does host some limited access to the codes online in certain states, however in some states they don't. For example, they do not provide access to all the Michigan building codes. I would speculate that the access comes down to the deal that ICC strikes with the state or local agency.

    Scott
    CEO, UpCodes

    ------------------------------
    Scott Reynolds
    Up.Codes
    Brooklyn NY
    ------------------------------



  • 21.  RE: Can the Law Be Copyrighted?

    Posted 05-02-2019 15:01
    I think the case can be made that codes and laws are not the same, regardless of enforcement.

    First, local, state, and federal laws are made by people who are on the taxpayer dole. All those working people who are affected by such laws pay for them through taxation. The codes, however, are written by private industry, and must seek funding outside the tax structure. Currently, copyright law is the only assurance of compensation.

    Second, laws are written by people who have been elected to represent the populace. The public have no representation in the writing of codes.

    I do know that publicly available court documents can be viewed in situ for free, but must be purchased in order to take them home. How is that different?

    ------------------------------
    C
    ------------------------------



  • 22.  RE: Can the Law Be Copyrighted?

    Posted 05-02-2019 14:46

    The funding mechanism for code updates should be that the entities creating the law should be the ones who pay the fee to the ICC. ie: cities, counties or states who stipulate the ICC codes. Base the fee on the population of the last census. They recoup the expense by tacking a code fee onto the building permit when issued. ( if they are smart, they will price it to make money off the arrangement).

    Those entities could than post the codes on their web sites with any local changes noted in italics or other distinguishable means?? The actual code would than be available without charge to anyone who wants to look at, make copies of sections, or use any current or past version of the code.

    --  THE ARCHITECT  Bruce R Glass AIA 305 N. Main, Garden City, KS 67846 Phone: 620.271.0852 thearchitect@gcnet.com


  • 23.  RE: Can the Law Be Copyrighted?

    Posted 05-10-2019 08:36
    I apologize if this has already been brought up, but how is this legally any different than MADCAD? They're also selling access to ICC's model codes.  Is there some sort of licensing structure that I'm missing? I could not find anything on MADCAD's website.

    ------------------------------
    Daniel Audette, AIA | Associate | Technology in Practice Specialist
    GWWO Architects
    Baltimore MD
    ------------------------------



  • 24.  RE: Can the Law Be Copyrighted?

    Posted 05-10-2019 12:23
    This is just speculation on my part, but I think that MADCAD has some sort of revenue sharing agreement with ICC, so that's why they aren't getting sued.

    ------------------------------
    Abraham Rodriguez AIA
    Architect
    DOWA - IBI Group
    Portland OR
    ------------------------------



  • 25.  RE: Can the Law Be Copyrighted?

    Posted 25 days ago
    I completely get that a usable tool that allows things like search and copy to clipboard, whether free, at a nominal cost, or at 65K (no thank you), is desirable. I'd like something more functional than the hard to find, but free access provided by ICC (with almost no functionality). I liked UpCodes during the free tease period and was sorry to see it gradually close the viewing lens, though I fully expected that to happen because I understand that they're trying to sell a service and that there are costs associated with their service. That having been said, this is a question for a legal forum. I have an opinion, he has an opinion, we all have opinions, but unless we're versed in copyright law our opinions are worth squat.

    Have a nice day,

    ------------------------------
    Tom Miller, AIA
    Prairie VillageKS
    ------------------------------