A federal judge in New York City has ordered a trial in a case that will decide, in essence, who owns the model building code that sets legal safety minimums adopted by many states and cities.

That’s the issue that could be decided in a lawsuit brought in 2017 by The International Code Council (ICC) against UpCodes, a for-profit company that provides searchable databases of published state and local building codes. ICC is a nonprofit that is the developer of the International Building Code, which is widely used in North America as a model code.

The two sides have not yet set a firm date for trial since the late May order by U.S. District Court Judge Victor Marrero, who at that time denied motions by each side to grant their claims without a full trial. 

The federal judge noted that codes posted by UpCodes may have intermingled state code text with unenacted model code text to various degrees, and that Upcodes may have posted International Code Council I-Codes as model codes rather than expressed substantially identical codes. And that may require a different legal ruling than one made in the past.

The lawsuit, depending on how it is decided, could change the way designers use code and could also drain funds away from a codewriting nonprofit that helps make buildings safe.

Model codes are usually available on a limited basis for free. Annual membership in ICC starts at $50 for individuals and $450 for companies, entitling members to discounts on sections of the code that cost $136 to $216 in PDF and paper versions, according to prices posted on the ICC website.

Like many software companies, UpCodes provides all read, copy and print access to codes for free, and then sells use of premium tools for monthly fees starting at $29 and $49, respectively, for individual and team use.

But keeping up with a code revision cycle, especially for the "full library" of codes used by building or fire departments, can cost tens of thousands of dollars.

ICC, which had revenue of $65 million in 2017, portrays the copyright issue as an existential threat to its consensus process and public safety via the code.

But its grip on the copyright is gradually slipping. Three regional model codes merged to create ICC in 1994, and two of them—the Building Officials and Code Administrators International (BOCA), used in the east and Midwest, and the Southern Building Code Congress International (SBCCI), used mainly in the south—previously litigated related copyright issues.

In the BOCA v. Code Technology case (1980), a publisher had sold copies of the Massachusetts state building code. The First Circuit federal court decided that citizens are authors of the law, they also are code owners, regardless of who actually writes the provisions of the law.

In SBCCI v. Veeck (2002), where a website operator posted parts or all of that code, the Fifth Circuit U.S. appeals court determined that model codes that enter the public domain are not subject to the copyright holder's “exclusive prerogatives.” One key issue is whether publication of parts of ICC’s code in state and local codes, which are law, invalidates ICC’s copyright. The court basically said yes.

In his May decision to try the Upcodes case, Marrero wrote that Upcodes may have intermingled state code text with unenacted model code text to various degrees, and that Upcodes may have posted the ICC's I-Codes as model codes rather than as expressly identical codes. That means that it is not exactly the same as the decision in Veeck and may "compel a different result," said Marrero.

The intermingling of state and model codes concerns ICC, a spokeswoman said.  "Consumers are likely to be deceived by UpCodes’ claim that the copies of the codes on its website are complete and always up-to-date when they are not," she said. She added that "UpCodes’ false claims of accuracy are particularly troubling" and have safety implications.

It’s long been accepted that certain organizations provide updated building codes devised with input from industry professionals and stakeholders. States, cities and other municipalities then adopt codes in whole or in part. The versatility of cloud computing has opened up new ways to search building codes.

UpCodes, started in 2016 by Scott and Garrett Reynolds, provides a searchable database that allows users to locate parts of building codes already incorporated into federal, state and local codes. It also offers a feature through which designers can upload building information models to assess them for building code errors, which the company describes as a sort of “spellcheck” for codes. A Revit plug-in is available.

ICC says it licenses its code to “a number of innovative third parties” and that UpCodes never sought a license. 

UpCodes replied that it didn’t seek licensing from ICC because others tried and were unsuccessful.

The company interpreted the recent court decisions on summary judgement as indicators of its potential success in a trial. “The court’’s rallying behind free and open access to the laws is incredibly encouraging,” said Scott Reynolds.

The spokeswoman for ICC said that "the Code Council has tried to resolve this matter with UpCodes on several occasions and remains willing to license the International Codes (I-Codes) to UpCodes on terms that are similar to what the Code Council provides to other parties who publish the I-Codes."