[1] A three-fifths majority of the court's fifteen judges held that copyright protection no longer applied to model codes once they were enacted into law.

Banks in turn rests upon two grounds neither of which, the district court said, would justify invalidation of SBCCI's copyright protection: These considerations do not apply here, the district court maintained, because "SBCCI is a private non-profit corporation which carries out research, compiles data, drafts standardized codes, and then prints them in a usable fashion for its customers," without payment from the public.

While Veeck argues that it is necessary to publish codes on the Internet to provide the public with its due process right to free access to the law, he is wrong.

Initially, a three-judge panel of the Fifth Circuit affirmed, but its decision was vacated and the case was set for rehearing en banc.

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 contrast, SBCCI is unlike government employees, it says, and as the private "author" of model codes it allegedly depends on copyright incentives in order to perform their public service.

Even when a governmental body consciously decides to enact proposed model building codes, it does so based on various legislative considerations, the sum of which produce its version of "the law."

Citizens may reproduce copies of the law for many purposes, not only to guide their actions but to influence future legislation, educate their neighborhood association, or simply to amuse."

Under the Supreme Court's Feist decision, facts "may not be copyrighted and are part of the public domain available to every person.

"[27] Several standard-setting organizations filed amicus curiae briefs "out of fear that their copyrights may be vitiated simply by the common practice of governmental entities' incorporating their standards in laws and regulations.

[36] The dissent regarded the majority's policy claims as mere "feel-good" and "symbolic" rhetoric, not supportable, precedent-based substantive law.

Before ruling the Court called for the views of the Solicitor General, who filed an amicus curiae brief recommending denial of certiorari.

Among other things, the court held: "Defendant has not shown that the disputed provisions of Plaintiff's model building code are not copyrightable as a matter of law.

Ass'n, the Ninth Circuit held that incorporation of a classification system (taxonomy) for medical procedures in Medicare and Medicaid regulations does not make them unprotectable under copyright law.

[45] However, the court limited the ability of the AMA to enforce its copyright against a health maintenance organization that used the taxonomy in order to comply with federal law requiring it.

A real estate developer had acquired a parcel of land covered by a 30-year restrictive covenant to which a previous owner had agreed.

The architectural firm that had earlier designed those plans then sued for copyright infringement, and eventually won a jury verdict and a judgment in the district court for over $1.3 million—essentially all the profits made from the now-complete condominium project.

[51] In State Street Bank & Trust Co. v. Signature Financial Group, Inc.,[52] the Federal Circuit upheld the validity of a patent that effectively covered a section of the Internal Revenue Code and its regulations.

5,193,056, entitled "Data Processing System for Hub and Spoke Financial Services Configuration," because it "produced 'a useful, concrete and tangible result'—a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and in subsequent trades."

In In re Bilski, however, the Federal Circuit decided that the State Street Bank test "is insufficient to determine whether a claim is patent-eligible under § 101,"[53] and "is inadequate,"[54] so that it "should not longer be relied on.

[56] Many academic commentators support the Fifth Circuit's approach in Veeck as advancing the public interest but some criticize it as a derogation of creators' rights and as disincentivizing.

"[59] In his view: "Cases and controversies federal courts resolve are not suitable forums to provide optimal solutions to the problems of private standards embodied in public law.

"[60] Cunningham suggests that when government endorsement abrogates copyright, as Veeck holds, perhaps that is a "taking" that the Constitution insists be based on procedural due process and adequate compensation.

The initial panel decision[67] and the en banc dissent in Veeck, however, as well as the cases on which they rely, show the power of the "restitutionary impulse" in the judiciary and courts' willingness to fill apparent gaps in protection by expanding copyright coverage.

Hardy argues that if a building code is original and expressive enough to gain copyright in the first place, the legislative act of making it a law does not change those facts to turn it into non-property.

[70] Stephen McJohn argues that the Veeck court's use of the merger doctrine to resolve the case "is a blunt instrument because it entails holding that the model code loses all copyright protection once adopted."

"In contrast, the implied license doctrine may both cover the most important created fact cases and prompt a certain amount of self-selection on the question of copyright incentives."

"[73] He concludes that the merger doctrine does not need to be abandoned in this field, especially where the circumstances are such that the subject matter "would be created even if the creator knew that the results would not be protectable under copyright."

"[74] Pamela Samuelson sees "perverse incentives" in permitting copyright protection on model codes, saying the Veeck case illustrates the temptation created: Under the deal SBCCI offered, local governments such as those in Anna and Savoy got royalty-free rights to use the code and one or more copies to make available in a public office.

The authenticity and authority of the expression-the model code cum law derives not from the labor that made it, but the power and force (and myth) of the people speaking their desire as one.