Amicus Curiae Brief — Georgia, et al., Petitioners v. Public.Resource.Org, Inc.

No. 18-1150

In The

Supreme Court of the United States

GEORGIA, ET AL.,

Petitioners,

v.

PUBLIC.RESOURCE.ORG, INC.

Respondent.

On Writ of Certiorari To

The United States Court of Appeals

For the Eleventh Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME

BUILDERS OF THE UNITED STATES IN

SUPPORT OF NEITHER PARTY

AMY C. CHAI*

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

OF THE U.S.

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

achai@nahb.org

*Counsel of Record

i

QUESTIONS PRESENTED

This Court has held, as a matter of "public

policy," that judicial opinions are not copyrightable.

Banks v. Manchester, 128 U.S. 244, 253-254 (1888).

Lower courts have extended that holding to state

statutes. See, e.g., John G. Danielson, Inc. v.

Winchester-Conant Props., Inc., 322 F.3d 26, 38 (1st

Cir. 2003). But the rule that "government edicts”

cannot be copyrighted has "proven difficult to apply

when the material in question does not fall neatly

into the categories of statutes or judicial opinions."

Ibid.

The question presented is:

Whether the government edicts doctrine extends

to—and thus renders copyrightable—works that

lack the force of law, such as the annotations in the

Official Code of Georgia Annotated.

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Amicus

National Association of Home Builders of the United

States (“NAHB”) states that it is a non-profit

501(c)(6) corporation incorporated in the State of

Nevada, with its principal place of business in

Washington, D.C. NAHB has no corporate parents,

subsidiaries or affiliates, and no publicly traded

stock. No publicly traded company has a ten percent

or greater ownership interest in NAHB.

iii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED .................................. i

INTEREST OF AMICUS CURIAE ...................... 1

ARGUMENT ........................................................... 2

I.

AN OVERLY BROAD RULING FROM

THIS COURT COULD ADVERSELY

IMPACT THE CODE AND STANDARD

SETTING PROCESS ..................................... 3

A. Model Codes and Standards Are

Distinct From Annotated Statutes ........ 3

B. The Legal Issues Presented in This

Case and Model Codes and Standards

Cases Are Not the Same .......................... 8

II. THIS COURT SHOULD LIMIT ITS

RULING TO ANNOTATED STATUTES .. 11

CONCLUSION ..................................................... 14

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Broadcasting Co., Inc., et al. v. Aereo, Inc.,

et al., 573 U.S. 431 (2014) ................................... 11

Am. Soc’y for Testing and Materials, et al. v.

Public.Resource.Org, Inc., 896. F.3d 437

(D.C. Cir. July 17, 2018) ......................3, 10, 11, 13

Code Revision Comm’n v. Public.Resource.

Org, 244 F. Supp.3d 1350

(N.D. Ga. March 23, 2017) .................................. 10

Code Revision Comm’n for General Assembly of

Georgia v. Public.Resource.Org, 906 F.3d 1229

(11th Cir. 2018) ................................................... 11

Izumi Seimitsu Kogyo Kabushiki Kaisha v.

U.S. Philips Corp., 510 U.S. 27 (1993) ............... 12

S. Bldg. Code Cong. Int’l v. Veeck,

293 F.3d 791 (5th Cir. June 7, 2002), on reh’g en

banc, 539 U.S. 969 (2003), cert. denied ...........9, 10

Yee v. City of Escondido, Calif.,

503 U.S. 519 (1992) ............................................. 12

CONSTITUTIONAL AND

STATUTORY PROVISIONS

17 U.S.C. § 105 ......................................................... 9

17 U.S.C. § 107 ....................................................... 10

v

TABLE OF AUTHORITIES (cont.)

Page(s)

OTHER

Am. Nat’l Standards Inst. (ANSI),

https://www.ansi.org/ about_ansi/introduction/

introduction?menuid=1 ...................................... 3-4

Am. Nat’l Standards Inst., ANSI Essential

Requirements: Due Process Requirements for

American National Standards, Jan. 2019 ed .... 3-4

Am. Soc’y of Heating, Refrigeration, and AirConditioning Eng’rs (ASHRAE) Standard,

90.1-2016: Energy Standard for Buildings

Except Low-Rise Residential Buildings,

https://www.techstreet.com/ ashrae/standards/

ashrae-90-1-2016-ip?ashrae_ auth_token=&

product_id=1931793&utm_ campaign=

landingpage&utm_content=86274&

utm_medium=landingpage&utm_source=

promotion&utm_term=86274 ............................ 4-5

Brief in Opposition, Georgia, et al. v.

Public.Resource.Org, Inc., No. 18-1150,

2019 WL 2121378 (May 10, 2019) ...................9, 11

ICC Council Policies CP#28-05 – Code

Development (Rev. Jan. 22, 2019),

https://www.iccsafe.org/wp-content/uploads/

CP28-05.pdf ....................................................... 5, 6

vi

TABLE OF AUTHORITIES (cont.)

Page(s)

International Residential Code 2018,

https://shop.iccsafe.org/codes/2018-internationalcodes-and-references/2018-internationalresidential-code-and-references/2018international-residential-coder.html ................ 6, 7

Petition for Writ of Certiorari, State of Georgia,

et al. v. Public.Resource.Org, Inc., No. 18-1150,

2019 WL 1077396 (March 10, 2019) ............ passim

Supreme Court of the U.S., Rules of the Supreme

Court of the United States, July 1, 2019 ............ 12

U.S. Copyright Office, Compendium of U.S.

Copyright Office Practices §313.6(C)(2)

(3d ed. 2017) .......................................................... 9

1

INTEREST OF AMICUS CURIAE1

The National Association of Home Builders of the

United States (“NAHB”) is a Washington, D.C.based trade association whose mission is to enhance

the climate for housing and the building industry.

Chief among NAHB’s goals is providing and

expanding opportunities for all people to have safe,

decent, and affordable housing. Founded in 1942,

NAHB is a federation of more than 700 state and

local associations. About one-third of NAHB’s

approximately 140,000 members are home builders

or remodelers, and constitute 80% of all homes

constructed in the United States. NAHB is an active

and respected voice in the development of model

codes and standards pertaining to residential and

commercial construction.

NAHB is a vigilant advocate in the nation’s

courts. It frequently participates as a party litigant

and amicus curiae to safeguard the constitutional

and statutory rights and business interests of its

members and those similarly situated.

Counsel of record for all parties received notice at least

10 days prior to the due date of the amicus curiae’s intention to

file this brief. All parties have given consent. No counsel for a

party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

1

2

ARGUMENT

At issue before the Court is “whether the

government edicts doctrine extends to . . . works that

lack the force of law, such as the annotations in the

Official Code of Georgia Annotated.” (Pet’rs Cert. Br.

at I, State of Georgia, et al. v. Public.Resource.Org,

Inc., No. 18-1150, 2019 WL 1077396 (March 10,

2019)). Despite treatment to the contrary in the

Petitioner and Respondent’s briefs, the question of

the copyright status of other documents, such as

model codes and standards related to the

construction industry, is not before the Court.

The purpose of this brief is to assist the Court in

understanding the substantial differences that exist

between the annotations at issue in this case, and

model codes and standards which are not before the

Court. There are active cases currently under

consideration in the lower courts that concern model

codes and standards. NAHB respectfully urges the

Court to allow those cases to make their way

through the lower courts before rendering a ruling

that may upset the carefully orchestrated world of

model code and standard development.

3

I. AN OVERLY BROAD RULING FROM THIS

COURT COULD ADVERSELY IMPACT THE

CODE

AND

STANDARD

SETTING

PROCESS.

Stark differences exist between the purposes and

development processes employed in creating

annotated statutes and model codes and standards.

Moreover, current litigation concerning model codes

and standards centers on legal issues that are

distinct from the chief legal issue present in this

case.

As Judge Tatel in Am. Soc’y for Testing and

Materials, et al. v. Public.Resource.Org, Inc., 896

F.3d 437, 441 (D.C. Cir. July 17, 2018) (ASTM)

notes, model codes and “standards are as diverse as

they are many.” Amicus limits its focus in this brief

to those model codes and standards that impact the

construction industry.

A.

Model Codes and Standards Are

Distinct From Annotated Statutes.

Model codes and standards that concern

construction activity are developed using a

consensus-based process; that is, stakeholders

engage in a practice designed to present all views

and incorporate a wide range of expertise into the

final product. The model codes and standards that

impact NAHB members are developed using two

different methods.

Most consensus-based model standards are

approved by the American National Standards

4

Institute (ANSI).2 ANSI helps facilitate the

development of standards covering a limitless range

of topics. They do so as an oversight organization

which approves standards that have been developed

in a fair and equitable manner. To have a standard

approved by ANSI, it is necessary to adhere to an

ANSI-approved development procedure which

incorporates ANSI’s essential requirements and

insures due process for all materially interested

parties.3 Under this regime, ANSI standards are

created by a balanced committee of stakeholders

with interest and expertise in the topic area of the

standard. Committee members for standards

relevant to the construction industry include

building officials, builders, engineers, and

manufacturers. The stakeholder committee receives

public comments, creates a proposal, and then, using

the public comments and committee member

expertise, finalizes a standard. This standard is then

published and typically available for purchase and

use by the building community.

A number of organizations employ the ANSI

process to develop model standards. For example,

the American Society of Heating, Refrigerating and

Air-Conditioning Engineers (ASHRAE) (a non-profit

society) develops and publishes ANSI/ASHRAE/IES

See https://www.ansi.org/about_ansi/

introduction/introduction?menuid=1, last visited Aug. 26,

2019.

2

https://share.ansi.org/Shared%20Documents/

Standards%20Activities/American%20National%

20Standards/Procedures,%20Guides,%20and%20Forms/2019_

ANSI_Essential_Requirements.pdf, last visited Aug. 27, 2019.

3

5

Standard 90.1-2016: Energy Standard for Buildings

Except Low-Rise Residential Buildings. NAHB

members often use Standard 90.1 to comply with

their state or local energy efficiency requirements

for multifamily and commercial buildings. Model

standards are simply that – unbinding models with

no legal effect – unless and until they are adopted by

a state or local government entity. Currently, the

cost to purchase ASHRAE 90.1 is $166 for an

electronic or printed version, or $228 for both

versions.4

While similar in substance and form, model

building codes are developed through a somewhat

different process. NAHB members are most familiar

with the set of building codes produced by the

International Codes Council (ICC) (a non-profit

council), known as the “I-Codes.” The process by

which the I-Codes are developed is detailed in ICC

Council Policies CP#28-05 – Code Development

(Rev.

Jan.

22,

2019)

available

at

https://www.iccsafe.org/wp-content/uploads/CP2805.pdf.

As with an ANSI-type standard, any

materially affected person can petition for a code

change, which is first considered by a code

development

committee.

Code

development

committees are made up of members representing a

broad range of interests, including building officials,

engineers, builders, and plans examiners. Following

a multi-step process, the code development

https://www.techstreet.com/ashrae/standards/

ashrae-90-1-2016-ip?ashrae_auth_token=&product_id=

1931793&utm_campaign=landingpage&utm_content=86274&

utm_medium=landingpage&utm_source=promotion&utm_ter

m=86274, last visited Aug.19, 2019.

4

6

committees receive proposals, engage in public

hearings and extend comment opportunities, and

then the Public Comment Hearing is held. See

CP#28-05.7.0. A vote takes place at the conclusion

of the Hearing. Following this vote, an Online

Governmental Consensus Vote takes place. See

CP#28-05.8.0. Eligible voters in this process are ICC

governmental members, who are federal, state, or

local government officials, such as building

inspectors, state officials, and federal Department of

Energy employees. If the proposal is adopted, the

proposal becomes a final action and is published at

the conclusion of the cycle.

While only government officials can vote in this

final stage, the code does not have the force or effect

of law. Like a standard, it remains unbinding. Only

if the code is adopted by a federal, state, or local

government does the code become legally operative.

Of the I-Codes, the International Residential Code is

one of the most important to NAHB members.

Currently, the cost to purchase the 2018

International Residential Code ranges from $133$214 (non-member pricing).5

The process employed to develop annotations to

state statutes is decidedly different. As Petitioner

explains, in Georgia the Code Revision Commission,

created by the state’s General Assembly, contracts

with a private for-profit entity, the Lexis Nexis

https://shop.iccsafe.org/codes/2018-internationalcodes-and-references/2018-international-residential-code-andreferences/2018-international-residential-coder.html, last

visited Aug. 27, 2019.

5

7

Group (Lexis) to “maintain, publish, and distribute”

Georgia’s annotated statute. Pet’rs Cert. Br. at 8.

Georgia purports to hold copyright in the

annotations, and its agreement grants Lexis an

exclusive license to sell the annotated statute in

various formats. Pet’rs Cert. Br. at 9.

Lexis itself develops the annotations, which are

then approved by the Georgia General Assembly.

Pet’rs Cert. Br. at 7, 9. Thus, the annotations are

not developed by a non-profit organization using a

consensus-based process. Nor is there an effort to

strike the right balance of expertise and diverse

perspectives by applying a stringent set of rules

designed to achieve that purpose.

Furthermore, model codes and standards, and

annotations to statutes have two very different

purposes. Standard and code setting bodies engage

in their work to establish a uniform set of

requirements for various aspects of the construction

industry,

using

evolving

technology

and

incorporating a range of stakeholder perspectives.

The organizations and individuals that participate

in this process do so with the hope that the codes and

standards will be used by industry professionals

and, where appropriate, be adopted into law by

federal, state, and/or local jurisdictions.

For

example, various editions of the International

Residential Code have become law in jurisdictions in

49 states, Washington, D.C., and Puerto Rico. Many

of the code and standard setting organizations

require a revenue stream to conduct their work. Any

change to the copyright status of their products

would drastically alter the processes currently in

8

place to produce these highly technical codes that

are an integral part of construction today.

States that decide to include annotations with

their statutes do not develop or secure annotations

to establish uniform requirements. Instead, as

Petitioner states, the purpose of statutory

annotations is to provide the reader with

information about case law and other relevant

developments concerning the statutory provision at

issue. Pet’rs Cert. Br. at 6.

The vast differences between the purposes and

development processes employed to develop model

codes and standards and annotated statutes present

two very different fact patterns, each with its

attendant stakeholder impacts and real-world

consequences.

Only one of these fact patterns is currently before

the Court – Georgia’s annotated statutes. NAHB

respectfully calls on this Court to focus its attention

accordingly.

B.

The Legal Issues Presented in This

Case and Model Codes and Standards

Cases Are Not the Same.

The key legal issue in this case is whether the

annotations attached to Georgia’s state statutes fall

under an exception to copyright protection known as

the “government edicts” doctrine. As Petitioner

explains (Pet’rs Cert. Br. at 4-5), the doctrine was

born out of three opinions of this Court issued in the

1800s. These cases held that judicial opinions

cannot be copyrighted.

Federal copyright law

declines copyright protection to any work of the

9

federal government, including the law. 17 U.S.C. §

105.

The government edicts doctrine, explains the

Petitioner, is a “narrow, judicially created exception

to copyright protection for certain works having the

force of law.” Pet’rs Cert. Br. at 4. As the

Respondent notes, “the government edicts doctrine

is difficult to apply when a work does not fall neatly

into a category, like statutes or judicial opinions,

already held to be edicts.” Brief in Opposition,

Georgia, et al. v. Public.Resource.Org, Inc., No. 181150, 2019 WL 2121378 (May 10, 2019) at 9. While

not codified in the Copyright Act, the Copyright

Office in its compendium states that copyright

protection does not extend to “government edict[s]”

that have the “force of law.” Pet’rs Cert. Br. at 5.

(citing U.S. Copyright Office, Compendium of U.S.

Copyright Office Practices §313.6(C)(2) (3d ed.

2017)).

Hence, the question at issue here is whether a

private work without legal effect that is intertwined

with a government edict itself becomes subject to the

government edicts doctrine.

It is telling that, of the two cases cited by the

parties that concern model codes and standards,

neither mentions the government edicts doctrine by

name. The first case, S. Bldg. Code Cong. Int’l v.

Veeck, 293 F.3d 791 (5th Cir. June 7, 2002), on reh’g

en banc, 539 U.S. 969 (2003), cert. denied, discussed

the three Supreme Court cases that form the basis

of the government edicts doctrine for the proposition

that “the law” cannot be copyrighted. See id. at 796800; see also Pet’rs Cert. Br. at 21. However, the

10

Fifth Circuit in Veeck did not reach the more

nuanced question of works not having the force of

law present in this case.

The second case, ASTM, currently on remand at

the U.S. District Court for the District of Columbia focuses primarily on whether Public.Resource.Org’s

posting of hundreds of standards satisfies the fair

use doctrine. 896 F3d. at 447. Federal copyright law

provides that “the fair use of a copyrighted work . . .

for purposes such as criticism, comment[s], news

reporting, teaching . . ., scholarship, or research, is

not an infringement of copyright.” 17 U.S.C. § 107.

In ASTM, the U.S. Court of Appeals for the D.C.

Circuit explicitly declined to consider the

constitutional question. Id. at 447 (acknowledging a

“responsibility to avoid ‘pass[ing] on questions of

constitutionality . . . unless such adjudication is

unavoidable.’”)(internal citations omitted). Instead,

that court devoted its opinion to the district court’s

application of the fair use doctrine. Id. at 448-9

(remanding the case back to the district court to

“further develop the factual record” and apply the

fair use factors as elucidated by the court to each

standard at issue in the case). The case is now back

at the district court, and briefing is scheduled to be

completed by the end of this year.

The fair use doctrine, however, is not before the

Court in this case. The district court rejected the

applicability of the fair use doctrine. See Code

Revision Comm’n v. Public.Resource.Org, 244 F.

Supp.3d 1350, 1357-61 (N.D. Ga. March 23,

2017)(applying the four statutory factors of the fair

use doctrine and holding that PRO failed to satisfy

its burden to demonstrate its actions constitute fair

11

use). The Eleventh Circuit did not reach the issue

because it overruled the case on other grounds. See

Code Revision Comm’n for General Assembly of

Georgia v. Public.Resource.Org, 906 F.3d 1229, 1233

(11th Cir. 2018)(finding “no occasion to address the

parties’ other arguments regarding originality and

fair use.”).

While Petitioner did not raise the fair use

doctrine in its cert petition, Respondent references

the fair use doctrine and the D.C. Circuit’s

consideration of ASTM in its brief. Br. in Opp’n at

22. Respondent is correct in its assessment of the

D.C. Circuit’s concerns regarding whether the fair

use doctrine applies in that case. However, in the

case currently before this Court, the Eleventh

Circuit focused squarely on the government edicts

doctrine. Moreover, that is the question presented

by the Petitioners on which this Court accepted

certiorari.

II.

THIS COURT SHOULD LIMIT ITS

RULING TO ANNOTATED STATUTES.

This Court has long limited itself to the issues

that are squarely before it. In Am. Broadcasting

Companies, Inc., et al. v. Aereo, Inc., et al., 573 U.S.

431 (2014), the Court held that Aereo violated the

Copyright Act’s Transmit Clause when it offered

subscribers the opportunity to watch the petitioning

broadcast companies’ television programs over the

Internet. Id. at 436. While Aereo and other groups

argued that the Court’s action would impact a wide

range of other technologies, the Court disagreed.

Instead, this Court agreed with the Solicitor General

that contemplation of issues concerning other

12

technologies “’should await a case in which they are

squarely presented.’” Id. at 450-1 (internal citations

omitted).

A corollary to this rule is that the Court refrains

from considering issues not included in the petition

for certiorari. Supreme Court Rule 14.1(a) states:

“The statement of any question presented is deemed

to comprise every subsidiary question fairly

included therein. Only the questions set out in the

petition, or fairly included therein, will be

considered by the Court.” Supreme Court of the U.S.,

Rules of the Supreme Court of the United States, July

1, 2019, at 14.1(a). The Court elaborated on this rule

in Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27 (1993). In that case, this

Court acknowledged that it “consider[s] questions

not raised in the petition only in the most

exceptional cases.” Id. at 28. The Court goes on to

explain that “fairly included” does not include

questions that are “merely ‘complementary’ or

‘related’ to the question presented,” applying the

holding of Yee v. City of Escondido, Calif., 503 U.S.

519 (1992). Id. In that case, the Court concluded

that it could not consider whether an ordinance

effected a regulatory taking when the question

presented concerned whether the ordinance effected

a physical taking. Id at 537. Yee points to two

important functions of Supreme Court of the U.S.

Rule 14.1:

first, the requirement provides

respondent and other interested parties with

sufficient notice of the petitioner’s grounds for

seeking certiorari. Second, it provides the Court

with the information it needs to determine whether

a grant of certiorari is warranted. Id. at 535-6.

13

As described above, the facts and issues that

concern the copyright status of model codes and

standards are not currently before this Court.

Unlike consensus-based standards and codes

produced by private nonprofit entities, the

annotated statutes are produced for Georgia by a

for-profit private entity. Model codes and standards

are developed to create uniform standards on highly

technical subjects that can be adopted by

government jurisdictions if those entities deem them

appropriate. Annotations are created to provide

additional source material and study resources

designed to provide the reader with a greater

understanding of statutory provisions. Finally, the

legal issues at place in this case and ASTM

(government edicts and fair use, respectively) are

distinct and do not overlap. Lumping consideration

of copyright protection for model codes and

standards, or the fair use doctrine, with Georgia’s

annotated statutes would subvert the purposes of

Rule 14.1 and adversely impact the public’s ability

to know that these issues are under consideration by

the Court.

This Court therefore should not accept the

invitation to devise a broad ruling that seeks to

render one omnibus opinion for all copyright-related

questions concerning privately produced works

associated in some way with government actors and

instruments.

14

CONCLUSION

For the foregoing reasons, NAHB respectfully

asks this Court to maintain its traditionally narrow

focus on the facts and issues squarely before it.

Dated: August 29, 2019

AMY C. CHAI*

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

OF THE U.S.

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

achai@nahb.org

*Counsel of Record for

Amicus Curiae