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SCTE MESSAGE
By Steve Oksala
A recent court decision is threatening standards developers whose standards are used in regulation?and there are possible ramifications for the cable telecommunications industry.
In 1997 the towns of Anna and Savoy, Texas, adopted by reference the Standard Building Code of the Southern Building Code Congress International (SBCCI). Peter Veeck, who maintains a nonprofit web site covering North Texas, then purchased a copy of the code from SBCCI and posted it on the web for free download.
SBCCI is a nonprofit developer of standards whose primary revenue source is the sale of standards. It sued Veeck for copyright violation. His defense was that because the code had become ?the law? by virtue of its adoption, it entered the public domain. In the past, the adopting jurisdiction would have a copy of the code in its offices for residents to review, which did not impact the revenue that came from sales. However, a web posting means that nobody has to buy it.
In Federal District Court, SBCCI argued that it had a valid copyright and that if standards organizations cannot survive financially, every jurisdiction would have to develop its own (different) code. The trial court found in favor of SBCCI. Veeck appealed, and the three-judge panel in the Fifth Circuit Court of Appeals upheld the District Court decision.
Veeck asked for a full Fifth Circuit Court of Appeals review. It was granted, and overturned the initial decision. The court held that by virtue of the adoption, ?the model codes enter the public domain and are not subject to the copyright holder?s exclusive prerogatives.? SBCCI appealed to the U.S. Supreme Court, which asked the U.S. Solicitor General for an opinion.
The Solicitor General?s brief said that the decision was correct and that standards developers could find a different business model; the Supreme Court then declined to hear the case. So in the Fifth Circuit (Texas, Louisiana and Mississippi), adoption of a standard into law means that anyone can distribute it without paying. (The U.S. Copyright Office subsequently has asked one standards? developer whether its standard has ever been adopted into law as a code, on the grounds that ?it is the position of the Copyright Office that public laws are in the public domain and are not subject to copyright protection.?)
How might this affect us? Codes, most notably the National Electrical Code (NEC), are important in building cable networks. If the National Fire Protection Association (NFPA), the NEC?s author, cannot derive revenue from this work, then its choices are limited. NFPA might stop developing codes?and that would mean that each jurisdiction would have to do its own. The result would be hundreds or thousands of different codes, which would impact the cost of doing business.
But more than codes and their developers are at risk. The Fifth Circuit decision attempted to be narrow (on codes rather than standards), but its reasoning is not convincing. It is more likely that any standard that has been adopted into any law would be subject to this ruling?and that includes international standards such as the ISO MPEG standards or the IEC standards because they are adopted somewhere in the United States. All of these groups depend on the sale of standards for survival, so the decision will have serious implications for standards developers and those of us who need them.
Steve Oksala is vice president, standards, SCTE. Email him at .
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