Infringement Issue: Incorporation Doctrine

[richards1000@comcast.net]

Colleagues:

A colleague today drew my attention to a bulletin board message, 
http://bit.ly/wHxDn , posted today by Mr. Carl Malamud of 
Public.Resource.Org, apparently inviting persons to scan 
copyrighted standards that have been mentioned in the U.S. Code 
of Federal Regulations (CFR), and to send him those scans for 
incorporation into a new full text digital version of the CFR.

He appears particularly interested in engaging someone to copy 
these materials at the Illinois State Library.  Mr. Malamud 
appears to argue that these copyrighted standards are not subject 
to copyright on the ground that these standards have been 
incorporated by reference into the CFR.  Mr. Malamud cites as 
legal authority for this proposition the case of Veeck v. S. 
Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en 
banc), cert. denied, 539 U.S. 969 (2003), a case that applies 
only in the states subject to the jurisdiction of the U.S. Court 
of Appeals for the Fifth Circuit.  Today I wrote the following to 
a colleague, and I thought it might be of interest to some 
readers of this list:

I don't entirely understand.  Many, if not all, of the standards 
referred to in Mr. Malamud's post are copyrighted. In my view, 
Mr. Malamud's message appears to be a request that persons engage 
in copyright infringement. In my view, involvement in this matter 
could give rise to liability for direct or contributory copyright 
infringement.

To my knowledge, Veeck is good law only in the 5th Circuit, not 
in California, where P.R.O. [Mr. Malamud's firm] is located. In 
California, to my knowledge, Practice Management states the law. 
Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F3d 516 (9th 
Cir. 1997), amended by 133 F.3d 1140 (9th Cir. 1998), cert. 
denied, 524 U.S. 952 (1998). Nor does Veeck apply in the 7th 
Circuit, where the Illinois State Library is located; the law on 
this issue in the 7th Circuit appears to be unclear.

Further, the ruling in Veeck was narrow, applying only to "a 
model code," whose text "serves no other purpose than to become 
law," and whose publisher "operates with the sole motive and 
purpose of creating codes that will become obligatory in law." 
293 F.3d at 804-05. See also the following language from Veeck: 
"The copyrighted works do not 'become law' merely because a 
statute refers to them. See 1 GOLDSTEIN COPYRIGHT, sec. 2.49 at 
n. 45.2 (noting that CCC[, the case stating the law on this issue 
in the 2d Circuit,] and Practice Management 'involved 
compilations of data that had received governmental approval, not 
content that had been enacted into positive law').

Equally important, the referenced works or standards in CCC and 
Practice Management were created by private groups for reasons 
other than incorporation into law. To the extent incentives are 
relevant to the existence of copyright protection, the authors in 
these cases deserve incentives. And neither CCC nor AMA solicited 
incorporation of their standards by legislators or regulators." 
293 F.3d at 804-05.

The opinions above do not constitute legal advice or legal 
representation.

Robert C. Richards, Jr., J.D.*, M.S.L.I.S., M.A.
Law Librarian & Legal Information Consultant
Philadelphia, PA
richards1000@comcast.net
* Member New York bar, retired status.