# UpCodes is being sued by ICC



## Ryan Schultz

UpCodes is being sued by ICC
https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/

Curious to hear member's thoughts on this one.


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## cda

I was wondering who upcodes were?

Anyway if in violation

If they did the crime.

They must do the time.


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## steveray

I'm a big fan of sharing.....


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## Pcinspector1

If they Bros get away with it, why would we need to order $1,500.00 of related code books. I think the ICC is in their right to protect the "Family Business", I'd go to mattress!

These young-ins want it easy, take something that a group worked hard on for several years and sit in their PJ's with a laptop and profit off it?

IMHO , the Bros should be sued for copyright theft. If the ICC looses, why buy code books, CD's or prescriptions? How will the ICC manage the next code cycle, where does the funds come from? 

Is this similar to the big newspapers losing paper readers and having to provide internet content? Doesn't the ICC have the same rights? If a reporter writes a story, can you take it and put it on your website and sell it as yours, I don't think so..

Very...very .. interesting, and why would this need to be heard by the supreme court? Isn't It just theft?


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## TheCommish

around we go again


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## cda

I guess three bad things

ICC put all thier base codes online for anyone to see

Some cities have it in thier web sites to see

Our city and maybe state require a copy avaiable for anyone to see and can copy sections and maybe the whole book


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## Pcinspector1

Our state and city ordinance requires a copy for anyone to access at City Hall. Was not sure you could put it on line due to Copyright issues. NFPA is also on line with some hoops, think you have to sign up?

Does Upcodes have NFPA codes?

I never heard of Upcodes until this thread


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## north star

*% : % : % : %*

Here is a Link to UpCodes:* https://up.codes/codes/general

% : % : % : %*


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## Ryan Schultz

Codes are law.  Should law be copyrighted?

Man, that's an ugly fuzzy line.


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## tmurray

Ryan Schultz said:


> Codes are law.  Should law be copyrighted?
> 
> Man, that's an ugly fuzzy line.


I thought this was settled in the US. You have to provide free access. I thought ICC already does this. I know NFPA does.

Ultimately, whether you agree with the sharing aspect or not, ICC has a copyright on the codes. It is required to protect this copyright or it risks loosing it.


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## mtlogcabin

If UpCodes was a search and read only not an issue but because you can cut and paste into other documents then I can see ICC and other code and standard publishers concerns.
Codes are law when adopted and we always had to provide access to them when required. In the old print only days we had a copy  and provided a copy to the public library which considered them reference books along with all the other law books they had that you could read or copy a few pages but never check out of the library.
In today's digital internet world we provide the link to ICC and IAPMO to see and read the codes we have adopted

I just checked them out and they include our state amendments right in the ICC code sections. It is a powerful website. I think they should work together and ICC and other publishers that sign get a royalty per subscriber. Problem solved 
https://up.codes/building-codes-online

Our IAPMO plumbing code with amendments is not included neither is the IFC


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## Pcinspector1

I'm sorry, that's not right charging a fee for something they shoplifted off an organization of many.

As far as supplying code books to the local library, that's where the contractors go to shoplift the code books. Once went to the library to give the library girls the lasted adopted  code books. Went to see the section where the books are store  and the only code book left was the IMC. Guess the mechanical guys aren't that cleaver or they have some morals, not sure which.


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## JCraver

Everybody knows my opinion I think, but here it is again:

ICC has a copyright on their codes, all the way up until the time I adopt it as law (and by I, I mean any state, city, county, etc).  Once it is a law, it cannot be protected and must be accessible by/to anybody. 

Think of the ADA:  what if Congress had put a copyright on it when they passed it, and forbid any copying/pasting/printing/etc of the rules associated with it?  Would that be right/legal?  If you answer no, then you can't also argue that ICC is in the right on this.


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## conarb

TheCommish said:


> around we go again


 The Commish is right, we went through this about 2000, the 5th circuit (Texas, Louisianan, Mississippi) ruled that once adopted into law the codes were free to all, two other Circuits ruled that publication was a copyright violation, it went by appeal to the Supreme Court and they, unbelievably, refused to hear the case, one of the few areas that the Supremes always take are conflicts between the Circuits, so as it stands they are legal within the 5th Circuit, illegal within some other Circuits, and in about half the country the issue is undecided, just shows you how important the Supreme court thinks our codes are.


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## Pcinspector1

Good to hear from you conarb, thought you were on vacation or a Pelosi fund raiser event?

Do you think UpCodes has any liability?


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## conarb

Pcinspector1 said:


> Good to hear from you conarb, thought you were on vacation or a Pelosi fund raiser event?
> 
> Do you think UpCodes has any liability?




Oh Nancy, elected by San Francisco voters, I guess those lying on the streets. Yes this will be litigated again, maybe this time the Supreme Court will hear the case and determine it once and for all.


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## Mark K

The legal precedent is that you cannot copyright the law.  So once a jurisdiction or state adopts a model code the content of the adopted building code which incorporates the model code has no copyright.

The publishers of the model code still has a copyright on the model code but not on the same content when it is incorporated in a properly adopted building code.  Note that an adopted building code is a law.

It could be argued that when the state or local jurisdiction adopts a model code without permission from the original publisher that this is a taking and in accordance with the 10th amendment of the US constitution must be compensated.  How the cost should be apportioned to the many jurisdictions adopting building codes is a messy situation that needs to be sorted out but it does not change the fact that the model code content that is incorporated into a properly adopted building code does not have a copyright.  Any other interpretation is an affront to our Constitution and the  rule of law.

This means that while ICC can argue that it needs to be recompensed for its costs they will no longer be able to make a profit on the sale of building codes.

ICC is using the threat of litigation to promote the concept that they can copyright the adopted laws that incorporate the content they created.  ICC is acting as a bully.  ICC is fighting a loosing battle by intimidating individuals who are only exercising their rights.

There is a little hypocrisy on the part of ICC in that they claim a copyright on the content of their model codes when most of the content is produced by other organizations and individuals who must give up their copyright in order for the content to be included in the model code.  Is ICC just a profit maximizing company claiming to be a non-profit?

This is not the end of the world but it does mean that the economics of ICC will change and as a result the organization will change.

It also needs to be appreciated that much of  the content of the model codes is not developed with the intent of making a profit.  Just look at the steel standards produced by AISC which they make available for free in PDF format on their web site.

Also note that ICC's membership dues are on the low side when compared to other professional and trade organizations.  It is suggested that ICC keeps dues low so that many building officials will join giving ICC the appearance of legitimacy so they can make larger profits by selling the model codes to individuals who must comply with the adopted building codes.

Are you in favor of being able to exercise your constitutional rights or are you in favor of a corporation having a monopoly over our laws?


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## JCraver

Mark K said:


> There is a little hypocrisy on the part of ICC in that they claim a copyright on the content of their model codes when most of the content is produced by other organizations and individuals who must give up their copyright in order for the content to be included in the model code.  *Is ICC just a profit maximizing company claiming to be a non-profit*?



Well, duh.


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## mtlogcabin

Every non-profit has to make money or rely on donations to keep the doors open and operate.
If ICC or any other code or standard publisher operating exceed their revenue then they will go bankrupt.
I agree all laws should be as easily accessible as technology can make it. However the building codes are not written by government elected officials or employees who are paid to write laws. I can see both sides of the issues.


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## ICE

Xxx


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## conarb

mtlogcabin said:


> Every non-profit has to make money or rely on donations to keep the doors open and operate.
> If ICC or any other code or standard publisher operating exceed their revenue then they will go bankrupt.
> I agree all laws should be as easily accessible as technology can make it. However the building codes are not written by government elected officials or employees who are paid to write laws. I can see both sides of the issues.


Don't let the term non-profit influence you, no organization is more profitable than a non-profit because they don't have to pay taxes, all monies that would normally go to taxable profit can be retained within the corporation as retained earnings, a non-profit does have to pay reasonable taxable salaries to their employees and officers, but they can push the envelope on overhead expenses like fancy rents (like the ICC) or in many corporate jets, limos, etc.  The IRS does have tough rules that have to be followed religiously, but only 7% of those retained assets has to be donated to charity on a yearly basis, and 7% is one Hell of a lot less than income taxes.  The Clinton Foundation has broken every rule in the book as far as I can see and I've been waiting to see them prosecuted to see how far a non-profit can stretch the IRS regulations.  I looked into it several years ago because here we have to pay either enormous affordable housing fees to the AHJ along with the permit, or build affordable housing along with what we set out to build, in one case I paid a $67,000 affordable housing fee for a million dollar room addition.  One affordable housing builder I know has 7 differing non-profit corporations, the president pays himself a $100,000 a year salary out of each non-profit, so he does pay personal income taxes on $700,000 a year but his non-profits pay nothing,


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## JCraver

mtlogcabin said:


> Every non-profit has to make money or rely on donations to keep the doors open and operate.
> If ICC or any other code or standard publisher operating exceed their revenue then they will go bankrupt.
> I agree all laws should be as easily accessible as technology can make it. However the building codes are not written by government elected officials or employees who are paid to write laws. I can see both sides of the issues.



Not to just be argumentative, but:  very few Congressmen/Senators have ever written a bill that later becomes law by themselves, either.  So, say their staffer writes a bill - should that staffer copyright the language in that bill before it is passed and becomes a law, and then be able to charge a fee for anyone to access it once it's codified?  Or; I write a few ordinances/zoning clauses/etc for the City I work for.  They're approved by the bosses, the attorney, and then get voted on by our Council.  Can I copyright those ord's/clauses, and then charge the City and/or the residents to read/copy/paste them?

Same thing.....


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## mtlogcabin

There are approximately 50 non-profit referenced standard groups in the IBC alone. I will bet many of them are not as financially sound as ICC or NFPA or UL or have other significant means of income to rely upon. These referenced standards are just as much a part of the code as the ICC code yet they are not all available online Free.
Depending on the outcome of this case especially if it reaches the Supreme Court can drastically change the way codes are created. Courts base their decisions on law. I believe it is in everyone's best interest to work this out with out the courts being involved. 
I can see this as a win win for this company if they paid the various code and standard writing organizations a monthly royalty/fee since they are charging to use their site. This company could grow to be "Google" search engine for all codes
and standards around the world if the would partner up instead of the way they got started and are currently operating.


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## Mark K

Much of the discussion is about what should be.  The reality is that it is established that you cannot copyright the laws.  Should we change the laws of the country so that ICC can continue to make a hefty profit.

I am a member of a professional organization that while it does not write any standards spends considerable resources in trying to influence the building codes.  In addition the members of the organization donate considerable time in support of these efforts.

The reality is that standards will not go away if it is universally recognized that building codes do not have a copyright.  The motivation to create and maintain building standards is not about the income from copyrights but rather is driven by the desire to influence the use of particular materials and products.  This  is clearly the motivation for the steel standards developed and  maintained by AISC.

One option would be for the adopting agency to pay a licensing fee when they adopt a standard.  The jurisdiction could then add a charge to all building permits.  The problem will be that many organizations that have been developing standards and allowing them to be freely used will be tempted to ask reimbursement of costs that they have preciously absorbed.

If ICC were to raise the dues of jurisdictions then they would not be dependent on the income from selling copies of the standards.  Remember if ICC did not publish the IBC the jurisdiction would spend considerably more money in developing a local building code.


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## conarb

Mark K said:


> Much of the discussion is about what should be.  The reality is that it is established that you cannot copyright the laws.  Should we change the laws of the country so that ICC can continue to make a hefty profit.



Mark:

So far two Circuit Courts disagree with you and one does not, nobody wants to see the corrupt ICC fail more than I do, but the Supreme Court has to resolve a conflict in the circuits, why they refused to do so before is the question, the question is why?  And what will it do when it comes up again?


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## Inspector Gift

Pcinspector1 said:


> Once went to the library.... to see the section where the books are stored  and the only code book left was the IMC. Guess the mechanical guys aren't that cleaver or they have some morals, not sure which.



It may not be the contractors.   Our local libraries have stopped carrying the code books.   The Director claimed that they are not used enough to jusify the costs of replacing them every 3 years, or the even the space all of the code books required on their packed shelves.
They donated all of  them to our department.


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## tmurray

JCraver said:


> Not to just be argumentative, but:  very few Congressmen/Senators have ever written a bill that later becomes law by themselves, either.  So, say their staffer writes a bill - should that staffer copyright the language in that bill before it is passed and becomes a law, and then be able to charge a fee for anyone to access it once it's codified?  Or; I write a few ordinances/zoning clauses/etc for the City I work for.  They're approved by the bosses, the attorney, and then get voted on by our Council.  Can I copyright those ord's/clauses, and then charge the City and/or the residents to read/copy/paste them?
> 
> Same thing.....



Just to add to this, there are many laws that are written by a special interest group, then given to politicians to bring to their government. Similarly, the special interest groups are supported by their interest holders. Citizen groups, trade unions, manufacturer's etc. pay membership dues and this is what they do with the money.

Regardless of the revenue structure, ICC will make money and someone will pay for it.


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## mark handler

Inspector Gift said:


> It may not be the contractors.   Our local libraries have stopped carrying the code books.   The Director claimed that they are not used enough to jusify the costs of replacing them every 3 years, or the even the space all of the code books required on their packed shelves.
> They donated all of  them to our department.


Public access is met With internet access through ICC and Many States (CA as an example,  https://www.dgs.ca.gov/BSC/Codes ) Hard copies in libraries are stone age technology, and with  constant errata and supplements issued,  who maintains the  hard copies at those libraries.

What I like with the UpCodes is it is copy-able so you can cut and paste. without paying the ICC for that right,


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## Rick18071

This gives me an idea. On my way to copyright the Constitution.


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## mark handler

Rick18071 said:


> This gives me an idea. On my way to copyright the Constitution.


Useless 
Our lawmakers don't read or follow it. Just look at current Politicians, on both sides.


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## conarb

mark handler said:


> Useless
> Our lawmakers don't read or follow it. Just look at current Politicians, on both sides.



Absolutely correct, I wonder why I wasted all that time in law school, standing up and reciting law, writing papers, etc. , then live in a world where everybody lobbies and gets laws for special treatment.


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## my250r11

mark handler said:


> What I like with the UpCodes is it is copy-able so you can cut and paste. without paying the ICC for that right,



Ditto!


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## Glenn

The information on the Upcodes Colorado pages is completely fabricated.  We are a home rule state and do not have a state building code that dictates anything to the local municipalities.


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## Mark K

While Colorado may be a home rule state it only means that adopting entity is the local government jurisdiction that adopts the code.  Once the model code is adopted by a local jurisdiction there can be no copyright on the content adopted by that jurisdiction.

There is another wrinkle that could put the adopting cities in violation of the antitrust laws.  States are not subject to antitrust law as long as they comply to the state action doctrine which requires that the State legislature, and not a home rule entity, must clearly articulate the desire to displace competition.  Thus unless the state of Colorado has given cities the authority to adopt building codes and adopt model codes the cities will be subject to antitrust litigation.  As the Supreme Court has established there are no sovereign cities.


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## mark handler

Glenn said:


> The information on the Upcodes Colorado pages is completely fabricated.  We are a home rule state and do not have a state building code that dictates anything to the local municipalities.


Glen
NOT TOTALLY CORRECT
The UpCodes For Colorado   https://up.codes/codes/colorado
Has a Tab that refers you to the following:
List of Colorado Jurisdiction Adoptions
https://www.iccsafe.org/about-icc/government-relations/map/colorado/
State Adoptions
Codes are primarily adopted and enforced locally. Two state agencies adopt state minimum plumbing and electrical codes respectively. The State Architect adopts codes for all state-owned buildings and facilities (2012 IBC, IMC, IPC, IFGC, IECC). The Division of Fire Prevention and Control adopts and enforces codes for all public schools and junior colleges (2015 IBC, IRC, IFC, IMC, IEBC, IECC) and for all licensed healthcare facilities statewide (2012 IBC, IRC, IFC, IMC, IECC, IEBC, IWUIC). The Colorado Examining Board of Plumbers has adopted the 2015 IPC, IFGC and plumbing chapters of the 2015 IRC as the state minimum plumbing code.
2015 International Building Code
2015 International Existing Building Code
2015 International Fire Code
2015 International Fuel Gas Code
2015 International Mechanical Code
2015 International Plumbing Code
2015 International Residential Code
2012 International Energy Conservation Code
2012 International Urban-Wildland Interface Code

*They are not saying their version is accepted everywhere*
*Read everything and do not assume.*


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## Glenn

mark handler said:


> Glen
> NOT TOTALLY CORRECT
> The UpCodes For Colorado   https://up.codes/codes/colorado
> Has a Tab that refers you to the following:
> List of Colorado Jurisdiction Adoptions
> https://www.iccsafe.org/about-icc/government-relations/map/colorado/
> State Adoptions
> Codes are primarily adopted and enforced locally. Two state agencies adopt state minimum plumbing and electrical codes respectively. The State Architect adopts codes for all state-owned buildings and facilities (2012 IBC, IMC, IPC, IFGC, IECC). The Division of Fire Prevention and Control adopts and enforces codes for all public schools and junior colleges (2015 IBC, IRC, IFC, IMC, IEBC, IECC) and for all licensed healthcare facilities statewide (2012 IBC, IRC, IFC, IMC, IECC, IEBC, IWUIC). The Colorado Examining Board of Plumbers has adopted the 2015 IPC, IFGC and plumbing chapters of the 2015 IRC as the state minimum plumbing code.
> 2015 International Building Code
> 2015 International Existing Building Code
> 2015 International Fire Code
> 2015 International Fuel Gas Code
> 2015 International Mechanical Code
> 2015 International Plumbing Code
> 2015 International Residential Code
> 2012 International Energy Conservation Code
> 2012 International Urban-Wildland Interface Code
> 
> *They are not saying their version is accepted everywhere*
> *Read everything and do not assume.*


I'm not really following you Mark.  I wasn't commenting about the legal stuff.  That's not in my wheelhouse.  That link lists the 2015 model codes.  In the Denver metro we have municipalities on anything from the 2009 to the 2018, each with their own amendments.  State only dictates electrical and (sort of) plumbing.  I didn't spend a lot of time on the site, I was just curious how they handled Colorado's weirdness and it looked to me like they didn't handle it very well.  I think what this site is doing is wrong, wrong, wrong.


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## Pcinspector1

Glenn, I hope your copyrighted? 

"This is a rough neighborhood, when I was a kid, my parents moved a lot, but I always found them!"


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## Mark K

This is all legal stuff.

In terms of copyright the same rules apply when your jurisdiction adopts a model code.  At that time there is no copyright on the adopted material even if it is derived from a model code.

The other point is that there are limits on the autonomy provided by state law.

It is not clear what you see as the problems.


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## mark handler

Glenn said:


> I'm not really following you Mark.  I wasn't commenting about the legal stuff.  That's not in my wheelhouse.  That link lists the 2015 model codes.  In the Denver metro we have municipalities on anything from the 2009 to the 2018, each with their own amendments.  State only dictates electrical and (sort of) plumbing.  I didn't spend a lot of time on the site, I was just curious how they handled Colorado's weirdness and it looked to me like they didn't handle it very well.  I think what this site is doing is wrong, wrong, wrong.


So how is the information on the Upcodes Colorado pages completely fabricated?
They clearly state the individual jurisdictions adopt and enforce the building codes.
They Clearly state that State codes follow the codes outlined in their pages.
And they refer you to the ICC pages which says the same. If Up codes pages completely fabricated then so is the ICC Pages. 
*Are the ICC pages completely fabricated?

I thought your mission was to: "Make building code knowledge accessible and affordable."
isn't that what the UPcodes are doing? Accessible? Without charge? *


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## Glenn

mark handler said:


> So how is the information on the Upcodes Colorado pages completely fabricated?
> They clearly state the individual jurisdictions adopt and enforce the building codes.
> They Clearly state that State codes follow the codes outlined in their pages.
> And they refer you to the ICC pages which says the same. If Up codes pages completely fabricated then so is the ICC Pages.
> *Are the ICC pages completely fabricated?
> 
> I thought your mission was to: "Make building code knowledge accessible and affordable."
> isn't that what the UPcodes are doing? Accessible? Without charge? *


I don't know how to respond, because you sound like you're getting angry at me or something...  I just saw a bunch of 2015 I-codes listed and perhaps I commented too soon.  I'll just retract my statement.

ICC makes their codes plenty accessible.  The lack of "cut and paste" is not an argument...that's a convenience.  My mission has nothing to do with this business.  I create my own product.


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## Glenn

Pcinspector1 said:


> Glenn, I hope your copyrighted?
> 
> "This is a rough neighborhood, when I was a kid, my parents moved a lot, but I always found them!"


I don't understand?  Yes, the moment you make something original, it is copyrighted.  A "registered" copyright is just a next step, more money, and probably better protection.  You can still claim copyright without a registered copyright.  That's why you have to sign a copyright release to ICC when you submit a code change.


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## jar546

Glenn said:


> I don't know how to respond, because you sound like you're getting angry at me or something...  I just saw a bunch of 2015 I-codes listed and perhaps I commented too soon.  I'll just retract my statement.
> 
> ICC makes their codes plenty accessible.  The lack of "cut and paste" is not an argument...that's a convenience.  My mission has nothing to do with this business.  I create my own product.



There is another difference here.  Glenn is working alongside the ICC with approval to provide authorized CEUs, whereas UPcodes is simply cutting and pasting without authorization.


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## tmurray

mark handler said:


> Glen
> NOT TOTALLY CORRECT
> The UpCodes For Colorado   https://up.codes/codes/colorado
> Has a Tab that refers you to the following:
> List of Colorado Jurisdiction Adoptions
> https://www.iccsafe.org/about-icc/government-relations/map/colorado/
> State Adoptions
> Codes are primarily adopted and enforced locally. Two state agencies adopt state minimum plumbing and electrical codes respectively. The State Architect adopts codes for all state-owned buildings and facilities (2012 IBC, IMC, IPC, IFGC, IECC). The Division of Fire Prevention and Control adopts and enforces codes for all public schools and junior colleges (2015 IBC, IRC, IFC, IMC, IEBC, IECC) and for all licensed healthcare facilities statewide (2012 IBC, IRC, IFC, IMC, IECC, IEBC, IWUIC). The Colorado Examining Board of Plumbers has adopted the 2015 IPC, IFGC and plumbing chapters of the 2015 IRC as the state minimum plumbing code.
> 2015 International Building Code
> 2015 International Existing Building Code
> 2015 International Fire Code
> 2015 International Fuel Gas Code
> 2015 International Mechanical Code
> 2015 International Plumbing Code
> 2015 International Residential Code
> 2012 International Energy Conservation Code
> 2012 International Urban-Wildland Interface Code
> 
> *They are not saying their version is accepted everywhere*
> *Read everything and do not assume.*


While I would not state that it is fabricated, Up Codes just puts the 2015 version of the code under the state tab then refers you to an ICC listing for what jurisdictions have adopted what versions of the code. I would certainly say that the Colorado page is misleading.


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## mark handler

Glenn said:


> I don't know how to respond, because you sound like you're getting angry at me or something...  I just saw a bunch of 2015 I-codes listed and perhaps I commented too soon.  I'll just retract my statement.
> 
> ICC makes their codes plenty accessible.  The lack of "cut and paste" is not an argument...that's a convenience.  My mission has nothing to do with this business.  I create my own product.


Not mad or angry, but to say "The information on the Upcodes Colorado pages is completely fabricated." is wrong.
The 2015 International codes are the  "APPROVED STATE BUILDING CODES" for the Office of the State Architect and State Fire Marshal. The fact that local Jurisdictions can adopt other codes does not change that fact.


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## Pcinspector1

Colorado page is misleading?

These codes, laws and ordinances we speak of, require someone or something to monitor the revisions, does anyone know if UpCodes is keeping up the changes? How often do they purge old code requirements and reset the info? That's got to be a nightmare!

Curious


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## mark handler

I believe, as the courts have ruled, when the model codes are adopted, they cannot be copyrighted. You cannot copyright a code enacted by a governmental agency. That's why, they must be made available, free of charge.


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## conarb

mark handler said:


> I believe, as the courts have ruled, when the model codes are adopted, they cannot be copyrighted. You cannot copyright a code enacted by a governmental agency. That's why, they must be made available, free of charge.



As I explained above that is the opinion of the 5th Circuit, two other Circuits have taken the opposite position, hopefully the Supreme Court will hear the case this time around and resolve the conflict, the last time around thye refused to even hear the case, they almost always hear a case when there is a conflict in the Circuits.


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## tmurray

mark handler said:


> Not mad or angry, but to say "The information on the Upcodes Colorado pages is completely fabricated." is wrong.
> The 2015 International codes are the  "APPROVED STATE BUILDING CODES" for the Office of the State Architect and State Fire Marshal. The fact that local Jurisdictions can adopt other codes does not change that fact.


Is there a state fire marshal in Colorado? I thought they had local jurisdictions looking after fire prevention. Would they be able to enforce a state adopted code, if their local jurisdictions have adopted a different code? Potentially if they are receiving their authority from a state law, but unlikely if they are getting their authority from local ordinances.

I do not see the code that the State Architect designs their buildings to as being very relevant to everyone working in the private sector.


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## mark handler

tmurray said:


> Is there a state fire marshal in Colorado? I thought they had local jurisdictions looking after fire prevention. Would they be able to enforce a state adopted code, if their local jurisdictions have adopted a different code? Potentially if they are receiving their authority from a state law, but unlikely if they are getting their authority from local ordinances.


*The Colorado Division of Fire Safety (DFS) "Director" Michael C. Morgan*


tmurray said:


> I do not see the code that the State Architect designs their buildings to as being very relevant to everyone working in the private sector.


*And who said the UPcodes are only for Private sector jobs?*


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## Mark K

Conarb has stated that other courts have taken an opposite position.  I would like to know what those appellate cases are.  From the cases I have read I suspect any adverse rulings were based on other issues.  Nowhere have I seen a court rejecting the fact that you cannot copyright the law.  Adopted building regulations are laws.


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## conarb

Mark K said:


> Conarb has stated that other courts have taken an opposite position.  I would like to know what those appellate cases are.  From the cases I have read I suspect any adverse rulings were based on other issues.  Nowhere have I seen a court rejecting the fact that you cannot copyright the law.  Adopted building regulations are laws.


Mark:

We had lots of discussions on this about 15 years ago, the case that ruled against the ICBO came out of Texas, we discussed in lots while the appeal to the Supreme Court was pending, then we were all surprised when the Supremes refused to grant certiorari and render a decision on the split in the Circuits (a split in the Circuits is one of the few areas where the Supreme Court almost always grants certiorari).  

I don't feel like doing it, but if you are so inclined, go back to our old bulletin board and enter the word "certiorari" in the search function and you should come up with a wealth of information on the issue. Unfortunately when the Supreme Court refuses to grant cert there is no published record so I can't just research Supreme Court cases, a guy could go to published decisions of the 5th Circuit and get the name of the case and start following from there, this would take a lot of legal research.  What about the current case that started this discussion? Obviously the ICC will be citing the other two Circuits that ruled in it's favor before.  The other two cases were in Circuits in the upper midwest if memory serves me, but our ultra-liberal 9th Circuit in California has never ruled on the issue. It seems to me that a conservative court is going to rule to protect copyright like the 5th Circuit in Texas did before, while a liberal court is going to rule for free dissemination, at the Supreme Court it is now 5 to 4 conservative, if Ginsberg dies within a Republican presidency it will probably go 6-3 conservative, if she continues to live until the next Democratic presidency it should go back to the 5-4.  Since the ICC wants to protect it's copyright I would think they would want to take it up as soon as possible.


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## Mark K

I can respond to specific court rulings but I have trouble with vague statements that something exists but can not be proven that it exists..

There is another argument why there should be no copyright of building codes which is based on the "merger doctrine".  Copyright protects expression but not ideas.  You cannot copyright a fact.  While you can copyright the phone book you cannot copyright the phone numbers.

When the model code is adopted as a regulation there is  only one  way the regulation can be stated.  In effect the regulation becomes a fact and thus cannot be copyrighted.

If you look at the current litigation it is clear that ICC does not play a central role.  I suggest that ICC does not want to push for a definitive  ruling since I suspect they fear they would lose.


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## mark handler

"Public" documents, such as state judicial opinions, legislative enactments, and other official documents beyond the range of copyright protection.
The courts have consistently held official governmental works, even beyond the scope of section 105, outside the scope of copyright protection.
See Howard B. Abrams, 1 Law of Copyright § 2.05[A][3] (1991) [hereinafter "Abrams"].

*I believe State "Codes and Standards" Legality adopted with, the creators blessing, falls under this exception in the copyright law*


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## conarb

Mark K said:


> I can respond to specific court rulings but I have trouble with vague statements that something exists but can not be proven that it exists..



Look, I agree with you, but so far the courts are split, I am not going to do all the research to show you the legal decisions, I gave you the keyword to research it, by the way, the article linked in the first post on this thread says:



> Several relevant cases, including ones involving building codes, have been decided by different circuits in the United States Court of Appeals, which means the UpCodes  lawsuit may potentially be heard by the Supreme Court.¹




¹ https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/


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## tmurray

mark handler said:


> *The Colorado Division of Fire Safety (DFS) "Director" Michael C. Morgan*



He is listed as the director of prevention and control, not what I would class as a "fire marshal" in the traditional sense of the role, but maybe the role is defined differently there. Here, fire marshals do not handle anything related to extinguishing fires. They perform plan reviews and inspections of completed buildings. They also perform forensic analysis of some fires (where there is not a capacity in the local force).



mark handler said:


> *And who said the UPcodes are only for Private sector jobs?*



Well, is suppose it is for public sector construction projects too. It is for the legally adopted version of the code that all construction must meet, so that means private and public projects. However, I don't feel the intent of the service is to provide all standards that every branch of the government decides that they will be meeting.


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## conarb

tmurray said:


> He is listed as the director of prevention and control, not what I would class as a "fire marshal" in the traditional sense of the role, but maybe the role is defined differently there. Here, fire marshals do not handle anything related to extinguishing fires. They perform plan reviews and inspections of completed buildings. They also perform forensic analysis of some fires (where there is not a capacity in the local force).



T Murray, you forgot the most important function of the fire marshal, in the event of a fire and the engines roll he:
1) Places a call to the local press.
2) He gets in his car and heads to the fire red lights and siren screaming.
3) He tells the press: If there were fire sprinklers that they saved lives and prevented more damage, if there were not fire sprinklers that lives would have been saved if there were sprinklers and of course much less damage would have been done, put that in your paper.


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## tmurray

conarb said:


> T Murray, you forgot the most important function of the fire marshal, in the event of a fire and the engines roll he:
> 1) Places a call to the local press.
> 2) He gets in his car and heads to the fire red lights and siren screaming.
> 3) He tells the press: If there were fire sprinklers that they saved lives and prevented more damage, if there were not fire sprinklers that lives would have been saved if there were sprinklers and of course much less damage would have been done, put that in your paper.


Oh, ours doesn't do that here. They are trained in the code and understand why sprinklers are required and why they are not.

The local fire chiefs though...many are very guilty of this.


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## mtlogcabin

This from ICC

https://www.iccsafe.org/about/news-and-events/copyright-protection/key-documents/


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## Mark K

Why does ICC not make available the filings by the other side?


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## e hilton

mark handler said:


> . That's why, they must be made available, free of charge.



Free of charge, and cost of printing ... two different things.   If it is sold by a non-government entity they will want to make a profit.  And if the state or county sells it they will want to cover the printing cost, which is reasonable.


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## Mark K

Once it is established that there is no copyright the question about the cost is essentially a non-issue.  Yes you will have to pay for printing costs but they will be much smaller than the current costs of these codes.  As an alternative you cold avoid paying anything if you only looked at the documents on your computer

Whether or not the creator consented to the adoption of the standard it does not change the copyright status of the adopted code.  Once a standard is made a part of a regulation or law the author of the standard may have a case for a taking claim.  If a taking claim is supported the author will be reimbursed for its costs which are less than the current cost to purchase the codes.  This could be handled by imposing a small fee on all issued building permits.


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## mark handler

e hilton said:


> Free of charge, and cost of printing ... two different things.   If it is sold by a non-government entity they will want to make a profit.  And if the state or county sells it they will want to cover the printing cost, which is reasonable.


It costs too much money to get a CD, than to just cover costs.... think again.


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