A court decision in favor of startup UpCodes may help shape open access to the law

For the past three years, UpCodes and its founders have been entangled in a copyright lawsuit filed by the International Code Council (ICC). Though both focus on the building industry (specifically, the codes architects and builders need to follow), the lawsuit deals with an issue that has wider ramifications: is it possible to copyright the law, or text that carries the weight of the law?

Founded in 2016 and backed by investors including Y Combinator, UpCodes offers two main products, a database of state building codes that is available on a freemium basis, and UpCodes AI, which scans 3D building models for potential code violations. UpCodes’ building code database is at the center of the lawsuit, because it contains material the ICC claims copyright on. UpCodes says its software simplifies the complex and often expensive process of code compliance, one of the most important parts of the building process. But the ICC, the nonprofit organization that develops the model code used or adopted for building regulations by all 50 states, claims UpCodes impacts its ability to make revenue and continue authoring new code.

In May, UpCodes won a major decision in the case when United States District Judge Victor Marrero ruled that its posting of building codes was covered by public domain and fair use (a copy of Marrero’s ruling is embedded below).

The lawsuit will proceed because both parties’ motions for dismissal were not granted, but Scott Reynolds, who founded UpCodes with his brother Garrett, called the ruling “a huge advance for us in terms of what we’re doing and making sure UpCodes continues in the future.”

Nine days after Judge Marrero’s ruling on May 27, however, the ICC filed another lawsuit against UpCodes and the Reynolds brothers. This time, the ICC is suing UpCodes for false advertising and unfair competition, claiming that the startup’s copies of building codes are “incomplete and riddled with errors.” UpCodes maintains that the second lawsuit is an attempt to find another way to shut down its business.

Marrero’s decision in the first lawsuit is noteworthy because it is one of the first to cite the Supreme Court’s ruling earlier this year in Georgia v. Public.Resource.org, which stemmed from another case involving copyright and the law.

In 2015, the State of Georgia’s Code Revision Committee sued Public.Resource.org, a non-profit that shares public domain materials, to stop it from publishing the Official Code of Georgia Annotated (OCGA), a compilation of all laws in the state. The Code Revision Committee argued that annotations made to the OCGA placed it under state copyright, but the Supreme Court ultimately ruled in April that Georgia does not have copyright over the annotated legal code.

The Supreme Court ruling was watched closely by building professionals and open access advocates. As Architect’s Newspaper wrote in an article published last month, “the Georgia precedent helps clarify the border between private property and the public domain, with implications for architects using or considering such products as well as advocates of nonmonetized availability of code information.”

In an email to TechCrunch, lawyer Joseph Gratz, who represents UpCodes and the Reynolds brothers, said the UpCodes lawsuit’s relevancy extends beyond the building industry because “obviously, it deals with a key question about how we govern ourselves as a society. The ruling confirms that the law belongs to the people, and nobody owns it. You can’t make a business model out of owning the legal rules that citizens have to follow; you have to find some other way to support your business which ICC has done, by getting revenue from program services.”

He added, “It’s a model of how open government data can drive new innovations and successful startups. Law isn’t the only kind of information created by the government that can be leveraged in new ways. Property data, statistics and other kinds of government data can also support new businesses. And in all those cases, big old incumbents like ICC will try to find ways to slow down their new competitors.”

UpCodes was founded by Scott, an architect, and Garrett, a software engineer who previously worked at PlanGrid. The brothers wanted to create a more efficient way to reference building codes, which are so complex that many architecture and building firms hire code consultants to help them navigate regulations. Headquartered in San Francisco, the company currently has about 400,000 monthly active users, mostly industry professionals like architects and engineers, but also home owners and rental tenants.

ICC’s first lawsuit against UpCodes claims the startup violated its copyright on forty International Codes (I-Codes), the set of model building codes that have been adopted by all 50 states. The ICC argues that this impedes their ability to generate revenue from selling copies of its model codes, therefore making it harder for the organization to develop new building codes.

But UpCodes’ stance, supported by Marrero’s ruling, is that the I-Codes are either in the public domain or protected by fair use because they have been adopted into law by federal, state and local governments. (After the ICC filed its copyright infringement lawsuit in August 2017, UpCodes’ site was redesigned to include only enacted state and local building codes, instead of the ICC’s model codes).

Despite being opponents in two ongoing lawsuits now, both UpCodes and the ICC view the Supreme Court’s ruling in Georgia v. Public.Resource.org positively.

“What was really interesting for our case is that no matter if they were in the majority or dissenting, Supreme Court justices on both sides had really incredible quotes that said if it is in the law, of course it’s in the public domain,” said Scott Reynolds.

ICC’s general counsel Melike Oncu, however, said that the ruling “confirmed that [the ICC] is the owner of the model codes it publishes” because of what it said about the governments edicts doctrine. As defined by the U.S. Copyright Office, the doctrine states “edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.”

Oncu told TechCrunch in an email that the Supreme Court “confirmed that the government edicts doctrine is ‘a straightforward rule based on the identity of the author… assessed by asking ‘whether the author of the work is a judge or legislator’ acting in ‘the course of his judicial or legislative duties and not ‘whether given material carries ‘the force of law.'”

In other words, Oncu said “this means that the government edicts doctrine does not apply to the Code Council’s I-Codes and that they retain copyright protection regardless of whether or not they are later adopted into law.”

In his decision, Marrero wrote that “because ICC is a private party that lacks the authority to make or interpret the law, the Government Edicts doctrine is clearly not dispositive of this case.” But he also noted that ICC encourages adoption of its model codes into law, so that “even if adoption into law is not the sole reason ICC produces the I-Codes, it is clearly one of the most significant reasons, if not the most significant reason, that the ICC does so,” and that “a private party cannot exercise its copyrights to restrict the public’s access to the law.”

The ICC disagrees with Marrero’s ruling, Oncu told TechCrunch. The organization “believes that his decision was wrong because it held that codes that have the force of law are not copyrightable even if they are authored by a private party. As such, the decision is directly contradicted by the Supreme Court decision’s in Georgia.”

But Gratz said that “building codes are the law, and the Supreme Court ruled that ‘no one can own the law.’ That’s exactly what Judge Marrero ruled.”

Gratz added that “even if the government edicts doctrine doesn’t apply, UpCodes wins for two other separate reasons: because there’s only one way to express the law accurately, so UpCodes had to express it the same way ICC wrote it; and because UpCodes was using the material solely for the purpose of informing the public about what the law is, which the court has found to be fair use.”

In his decision, Marrero cited two other previous rulings involving two of the three groups that merged to form the ICC in 1994: the Building Officials and Code Administration (BOCA) and the Southern Building Code Congress International (SBCCI).

In 1980, BOCA sued private publisher Code Technology for publishing and selling its own edition of building code that was adopted by Massachusetts. The First Circuit court ruled in Code Technology’s favor. Then in 2002, the SBCCI sued Peter Veeck for posting a model building code adopted by local governments on his website, which gave free information about North Texas. SBCCI initially won the case in district court, but lost the appeal when the Fifth Circuit ruled in Veeck’s favor.

“Though the Government Edicts doctrine does not address government adoption of model building codes, two circuit courts have considered the issue,” Marrero wrote. “Their holdings are broadly consistent with each other and reaffirm the principle that no one can own the law. Moreever, both cases concern the model codes of ICC’s predecessors, SBCCI and BOCA, on which at least some of the I-Codes are based. These cases strongly suggest that Defendants do not infringe ICC’s copyrights insofar as they accurately post the I-Codes as adopted.”

After Marerro’s ruling, the Reynolds brother said they thought ICC might want to reach a settlement to avoid the chance of setting another precedent in Circuit Court. Instead, the ICC filed its second lawsuit on June 5, claiming that UpCodes and the Reynolds brothers “falsely have claimed and still claim that the copies of the codes they offer are, e.g. accurate, completed and up-to-date.”

In the suit, ICC cites a section in Marrero’s ruling where the judge explained why he was denying UpCodes’ motion for dismissal. “ICC has still raised genuine factual disputes that at least some of the codes posted on Current UpCodes [referring to the version of the site after the initial lawsuit was filed] have ‘indiscriminately mingled’ enacted text with unadopted model text.”

UpCodes corrected the errors when notified by the ICC. The Reynolds brothers said that the second lawsuit pointed out less than two dozen errors on UpCodes’ site, but they have now documented more than 400 sections on ICC’s site that either have an error or out-of-date code that they will use in their response.

Gratz said, “ICC appears to have filed the second lawsuit as a back-up plan to misuse unfair competition law to shut down a superior competitor, since ICC’s first attempt to shut down UpCodes failed. Instead of competing in the marketplace, ICC is wasting time with litigation over marketing copy.”

Both ICC and UpCodes told TechCrunch that they collaborate closely with jurisdictions to make sure codes are up-to-date.

Oncu said that ICC “works hand-in-hand with jurisdictions to publish custom codes. The Code Council receives approval from government officials from each jurisdiction that the code it posts is accurate before publishing a new or revised code.”

She added that a pre-motion letter by Gratz “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.”

The Reynolds brothers said UpCodes uses a combination of tech and collaborating with building departments to find mistakes in the codes posted to their database. The startup’s algorithms identify potential errors in the code and the company has worked with building departments in California, Utah, North Dakota and New York City to modify and update codes in their database. For example, UpCodes worked with the California Building Standards Commission to identify missing or duplicated sections and printing errors.

“We have over a million sections of code. When someone points out an error, we can fix it immediately,” said Garrett. “It sounds obvious, but having a system and a team that can fix an error within hours and deploy that to the site, across one system, is a lot better than it was historically, when you got an update and had to print it out and staple it into a book.”

“Putting these codes together is an incredibly complicated process and we’re happy to help by leveraging our tech,” he added. “On the other hand, ICC would rather be a gatekeeper to the law rather than explore innovations in the industry. Codes only get more complex over time. We need new technology and innovations to keep up with the growing demands of these regulations.”

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