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Codes Lawsuits Continue After Spring Ruling

Wednesday, January 13, 2021

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The battle for intellectual property rights in the building codes sector rages on as the International Code Council and private company UpCodes are still in a legal dispute after an initial ruling last year.

Some Background

The ICC—joined by the American Society of Civil Engineers—originally filed the federal civil lawsuit in New York Southern District Court in August 2017, which named web startup UpCodes, along with its founders, brothers Garrett and Scott Reynolds, as defendants in the case.

UpCodes was created in 2016 after Scott, who had been working as an architect, teamed up with his brother to gather code compliance rules in one place.

UpCodes’ main product—an online database—gives free access to codes, updates and amendments from more than 30 states, including New York City. More advanced tools, such as search capabilities, are sold on a subscription level.

Zolnierek / Getty Images

The battle for intellectual property rights in the building codes sector rages on as the International Code Council and private company UpCodes are still in a legal dispute after an initial ruling last year.

While anyone can view ICC codes for free and many states and cities adopt the codes, the actual distribution is behind a paywall and the ICC has maintained that it considers the codes the intellectual property of the council.

In spring 2019 the ICC released this statement to PaintSquare Daily News:

“The International Code Council is a non-profit association with over 64,000 members, which through a rigorous, open and transparent process, develops the highest quality codes and standards that make structures safer and more sustainable, affordable and resilient. These codes are relied upon by governmental entities around the world, which on their own may not have the resources or expertise available to fund development of these codes and standards or to keep them up to date. Importantly, ICC offers free online access to its codes because we fully recognize the public has a right to know the law.

The Reynolds brothers argued that the codes fall under fair use doctrine.

Ruling and Georgia

On May 26, Judge Victor Marrero agreed with UpCodes, saying that because the ICC guidelines are adopted as city and state laws and regulations, the ICC cannot prohibit public access.

“The Court concludes, however, that the case law is ultimately consistent. It compels a holding that the I-Codes as Adopted are in the public domain, because they are in fact enacted state and local laws binding on the enacting jurisdictions’ constituents,” the decision document states.

Marrero also cited a Supreme Court decision in Georgia v. that occurred just a month before, in April. That decision revolved around the state of Georgia in a copyright lawsuit over annotations to its legal code and determined that annotations cannot be copyrighted.

The 5-4 ruling upheld a previous appeals court decision after a years-long battle.

The Official Code of Georgia Annotated is the state’s official code that includes the text of every state statute currently in force, as well as non-binding annotations such as summaries of judicial opinions, law review articles and reference materials.

The OCGA is assembled by the Code Revisions Commission and produced by a division of the LexisNexis Group under a work-for-hire agreement with the Commission.

Public.Resource.Org (PRO) is a nonprofit organization “dedicated to facilitating public access to government records and legal materials.” The organization posted the OCGA online and distributed copies to various organizations and officials.

After sending several case-and-desist letters, the Commission sued PRO for infringing on copyright citing the Copyright Act, which grants monopoly protection for “original works for authorship.” PRO counterclaimed, saying that the entire OCGA fell into public domain.

The District Court sided with the Commission, saying that the annotations were eligible for copyright protection, but the 11th Circuit reversed, which the Supreme Court held.

The Court said that because the OCGA is written by the Commission, which is a legislative branch, the annotations were created as part of the Commission’s legislative duty and therefore not considered private authorship and therefore not protected under the Copyright Act.

Marrero echoes this statement in the UpCodes case, saying that no private party can restrict the public’s access to the law. This case is technically still ongoing, since both parties’ motions for dismissal were denied.

Next Steps

Just days after Marrero’s decision, on June 5, the ICC filed another lawsuit—this time for false advertising and unfair competition, alleging that UpCodes’ copies of the building codes are incomplete and erroneous.

While UpCodes has reportedly corrected the two dozen errors that the ICC pointed out, UpCodes said in a pre-motion letter that it completed its own analysis and has identified sections of the codes on ICC’s site that are erroneous of out-of-date.

ICC’s general counsel Melike Oncu told TechCrunch that UpCodes’ letter “misleadingly identified as ‘errors’ instances where the Code Council correctly published the custom code with the approval of the jurisdiction and then the identified provision was later amended.”


Tagged categories: Building codes; Good Technical Practice; ICC; Laws and litigation; Lawsuits; NA; North America; Regulations

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