Wednesday, August 14, 2013

Set the I-Codes Free


I’m old enough to remember when the building code was a slim little volume -- slipped easily into the back pocket of my overalls. Not true now. The code comes in 15 flavors, has thousands of pages and carries a price tag to match. The International Residential Code by itself is well over $100, whether on paper or by download. That’s OK, I suppose. The International Code Council claims they publish the “highest quality codes.” Maybe so. But I have a problem with what happens next.

The ICC pushes to get their codes adopted as law in states and cities all across the US. That’s OK too, except for one point. The ICC requires a copyright notice on each code when adopted. In other words, the ICC claims to own the law. That would make the building code the only law I know that isn’t free on the Web. You have buy a copy of the code to know what the law requires.

It’s easy to see why the states, cities and counties adopt I-Codes. They’re buying good law on the cheap – a much better choice than drafting new law from scratch. And the ICC is eager to deal. Every adoption means more code books sold by the ICC store.

What’s Wrong with This Picture?
The ICC strikes a moral, altruistic pose. They’re protecting life and property. “People Helping People Build a Safer World.” Who can argue with that? But the ICC is also expert at protecting its turf. Consider the intense struggle the ICC had with the NFPA for dominance in code adoptions. More problems: The ICC is a tax-exempt non-profit organization. But over 5% of revenue goes to executive compensation. That's a lot for a non-profit, $4 million last year. I’ll leave that issue to the I.R.S. My complaint is that only code-enforcement officials sit on the ICC Board. No one on the Board speaks for the public. That makes the ICC revenue model an easy decision: The ICC writes the code. States adopt the code. The public has to buy the code.

When government grants a monopoly to private enterprise, regulation follows. In this case, states, cities and counties grant a monopoly by adopting an I-Code. But they exercise no influence I can see over ICC practice. Instead, state and municipal governments toe the line, reproducing the ICC copyright notice on each code adopted. Is that what government is supposed to do?

The U.S. Compendium of Copyright Office Practices answers that question for Federal purposes. “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.” Or, as Supreme Court Justice Stephen Breyer said, “if a law isn't public, it isn't a law.” Any regulation the Federal government doesn’t publish is void. So you won’t see I-Codes adopted by Federal agencies. The same public policy should apply to states and municipalities. But it doesn’t, at least in the opinion of the ICC. Fortunately, not every court agrees.

In Veeck v. Southern Bldg. Code Congress (2002), the 5th Circuit of the Court of Appeals rejected copyright claims over model building codes that were incorporated into Texas law. “[P]ublic ownership of the law means precisely that ‘the law’ is in the ‘public domain’ for whatever use the citizens choose to make of it.” So at least in the 5th Circuit (Louisiana, Texas, Mississippi), a copyright notice on a model code adopted by government doesn’t mean much. Until the U.S. Supreme Court addresses the issue, status in other states is uncertain.

What to Do
If I-Codes truly make a safer world, adopted state versions should be readily available to anyone, the same as any other law. To their credit, the ICC offers all current I-Codes on a free interactive Web site (but without printing, searching or downloads). Public.Resource.org offers a free download of state and municipal versions of the I-Codes. If you agree that our law shouldn’t belong to any private company, click the button at the bottom of the Public.Resource.org home page to make a donation.