Our fight to keep the law free

Yes, it has. In fact, ICC has litigated and lost this issue twice:
From the BOCA v. Code Technology case (1980)*:

The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.

From the SBCCI v. Veeck case (2002)*:

Specifically, may a code-writing organization prevent a website operator from posting the text of a model code where the code is identified simply as the building code of a city that enacted the model code as law? Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives.”

In addition, there is other case law showing that no one can own the law.

From ASTM et al. v Public.Resource.org (2018):

The plaintiffs here claim a copyright over binding legal texts, which would enable them to prevent anyone from gaining access to that law or copying it for the public... As a matter of common-sense, this cannot be right: access to the law cannot be conditioned on the consent of a private party.

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and five years later when the case made it back to the DC Circuit Court, they ruled similarly (2023):

We hold that the non-commercial dissemination of such standards, as incorporated by reference into law, constitutes fair use

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From Code Revision Comm. v Public.Resource.org (2018):

The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all. As a result, no valid copyright can subsist in these works.

...

the law falls plainly outside the realm of copyright protection

From the Supreme Court ruling in the above case (2020):

no one can own the law    [Justice Roberts]

...

beyond doubt, state laws are not copyrightable    [Justice Ginsburg]

...

statutes and regulations cannot be copyrighted    [Justice Thomas]

Even a case in the 5th Circuit regarding foreign laws was consistent. From CSA v PS Knight (2024):

because CSA’s model codes are incorporated into Canadian law, Knight’s copying of those codes is not infringement.

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From our own case, ICC v. UpCodes (2020):

The Court concludes, however, that the case law is ultimately consistent. It compels a holding that the I-Codes as Adopted are in the public domain, because they are in fact enacted state and local laws binding on the enacting jurisdictions' constituents.

...

A private party cannot exercise its copyrights to restrict the public’s access to the law.

....

On balance, the Court is persuaded that accurate posting of the I-Codes as Adopted is a fair use as a matter of law.

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and our case, FGI v. UpCodes (2023):

The Court is persuaded that UpCodes’ posting of the FGI Guidelines that have been adopted into law likely constitutes fair use. As such, there is not a fair chance that FGI will succeed on its copyright infringement claim.

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and our case, ASTM v. UpCodes (2024):

There is significant evidence of the practical value of providing unfettered access to technical standards that have been incorporated into law.

...

UpCodes — like Public Resource — is permitted to reproduce in full the relevant portions of standards that have been incorporated by reference into law.

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and in this same case when the 3rd circuit reaffirmed the ruling (2026):

Enhanced public access to the law is a clear and significant public benefit. ... once the Works were incorporated by reference into law — which occurred before UpCodes’ copying — they moved even further to the periphery of copyright’s core protection

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The case law goes back to a 19th century ruling by the Supreme Court in Banks v. Manchester (1888):

the law, which, binding every citizen, is free for publication to all

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*BOCA and SBCCI are two of three entities that came together to form ICC^[2]

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These codes affect the buildings we all live, work, and sleep in every day. Without tools to manage the increasing complexity of regulations, safety is compromised and the cost of homes and commercial buildings increases.

Every year in the US, billions of dollars are wasted on compliance. This ranges from design, government approvals, construction rework, to building occupation (including insurance rates and frequent compliance lawsuits).

The single greatest cause of rising housing prices is excessive regulations that increase the time and cost of building new homes.

- Regulatory Costs Add a Whopping $93,870 to New Home Prices - National Association of Home Builders

We're trying to eliminate this waste. If construction codes aren't available to those who need them, this burden on all homeowners will keep getting worse. That's the danger of an organization trying to monopolize the law. We all pay the price.

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While other industries have increased productivity with new technologies and workflows, construction has seen a decrease in productivity over the last 50 years. According to McKinsey, a major factor is building codes. Year over year, codes become increasingly complex and difficult to manage.

Organizations like ICC have severely impacted our profession. This comes from over two decades of starved innovation.

Productivity within the construction sector is consistently poor ... Some of this is due to external factors such as cumbersome building codes and permitting processes.

- Housing affordability: A supply-side tool kit for cities - McKinsey

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While building UpCodes, we have come across many individuals and organizations who attempted to create tools and workflows to manage compliance. All of these were ultimately shut down by ICC or similar organizations. It’s impossible to say what tools we would have today if these initiatives were allowed to flourish.

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Yes, ICC is a tax-exempt non-profit. However, their non-profit status does not mean they aren't making revenue or taking salaries. In fact, their self-published financials would likely surprise many people:

• They have a revenue stream of over $100 million per year^[3][4] with large profit margins^[5].
• The CEO, Dominic Sims, is paid $1,344,655 / year^[6]. The median salary for the head of a non-profit is $121,235 / year^[7].

It's unusual to see a non-profit using aggressive litigation tactics to suppress innovation. The monopolistic actions, the budget dedicated to offensive litigation, and high executive salaries are inappropriate for a non-profit.

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Organizations such as ICC convene the volunteers who write the codes. In turn, these codes provide value to society by keeping us all safe.

From their 990, 89% of ICC’s revenue comes from program services, including consulting, certification, and training, which do not rely on profiting by limiting access to the law^[8]. ICC is making more money than ever. Attempting to copyright the law is unnecessary.

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