Judging from the court docket, there’s been a four-month period of comparative legal silence in the copyright violation lawsuit by the International Code Council, which publishes the model building code widely used in North America, against UpCodes, a San Francisco-based company that provides searchable databases of published state and local building codes and related tools for designers. The issue has been framed as “Who Owns
the Building Code?”—the nonprofit code council that creates it, or the public whose governments adopt it into law—but the legal issue actually revolves around fair use of copyrighted material. The deeper issue for the industry is what will maximize public benefit of the code and new ways devised to access it. The question goes beyond this one case. Similar fair-use issues are still being litigated in a federal lawsuit by the American Society for Testing & Materials and co-plaintiffs against Public.Resource.org, a champion of free access to government laws and regulations.
The lawsuit between ICC and UpCodes is different partly because UpCodes is a private company. Technology pioneers have a tendency to wrap themselves in the flag of progress and proclaim the benefits of “market disruption.” In the case of ICC v. UpCodes, which has been in federal court in New York City since 2017, the matter is complicated because a nonprofit creates the code, and then it becomes law when adopted by states and cities. That, UpCodes argues, entitles it to reproduce code sections on its website.
In the U.S., private nonprofits like ICC, or trade associations formed by corporations, conduct the laborious process of creating building codes. And the ICC has paid for its activities and staff time by charging substantial fees in the marketplace of counties and states where ICC really has no competition. That may strike some in the free government records movement as offensive, but only if you have no appreciation of the technical complexity and role of the codes for setting minimum standards of public safety while facilitating commerce. The ICC isn’t Google or Amazon. It takes in about $65 million a year.
UpCodes, by the same token, has produced a fascinating platform with value-added tools that is proving useful to the firm’s growing clientele. Of course, UpCodes’ owners and managers shouldn’t be burdened with the worry of how code-writing should be financed. Their goal is to make the code easier to use through the company’s platform and tools.
The rest of the construction industry should be concerned, however. The fees that code-writing organizations charge can be a burden for small towns that need or want a full code library. UpCodes’ searchable code database and tools could lower those costs but also eventually shrink ICC’s ability to finance its operations. Because ICC is a nonprofit and UpCodes’ goal is private-for-profit, we hope the parties come to terms. And that the courts will respect a nonprofit’s copyright protection as a reliable way to pay for the benefit that such nonprofits bring to society.