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.