A court case involving building codes—both how we create them, and where technology can help make them easier to understand—suggests the simple concept of accessing the law isn’t quite so straightforward.
The legal battle pits brothers Scott and Garrett Reynolds, founders of UpCodes, a startup that runs an online building code database as well as a nascent, AI-powered program that evaluates blueprints and designs, against the International Code Council (ICC), a 64,000-member non-profit that creates model building codes used in all 50 states.
The dispute stems from disruption. The ICC, which convenes panels of experts to create a model building code adopted by different levels of government, sells access to these codes (the group made $45.3 million in revenue in 2014). Average Americans and architects alike can access ICC codes via a read-only website for free; anything else, including premium online access and printed books, costs money.
This business model—in effect, having the relevant professionals pay other professionals to maintain and improve a complicated bureaucratic code—has been a boon for the public, and “created the safest buildings in the world today,” according to Whitney Doll, the ICC’s vice president of communications.
UpCodes begs to differ. They see an antiquated system that needs updating, not an unexpected position for a tech company founded in 2016 and backed by the prestigious Y Combinator startup incubator to take. As more and more architecture firms embrace digital design technology, they see the potential to make code compliance simpler and more streamlined.
They also see a fair use argument, which is why they took the law, based on ICC-created code, copied it and hosted it on their website, which currently has roughly 220,000 subscribers, both free and paid.
“For architects, access to code hasn’t seen any innovations for 100 years,” says Scott Reynolds. “This is a very antiquated industry. I think we can solve this with software.”
The ICC is currently suing UpCodes in federal court for copying and reposting their building codes. While both sides disagree about quite a bit, the core question comes down to whether or not these codes can be copyrighted.
“It turns on a pretty simple legal question,” says Mitch Stoltz, a senior staff attorney with the Electronic Freedom Foundation (EFF), a nonprofit legal group with extensive experience dealing with digital copyright and IP cases. “Can a private entity hold a copyright in the law and use that copyright to decide who gets access?”
Creating a spellcheck for buildings
“They never came to us asking to use the codes,” says Mel Oncu, general counsel of ICC. “They spend a lot of time saying we get in the way of innovation. It’s important to note that we work with several third parties that license our content. UpCodes could have come to us at any point and asked to lawfully reproduce our code. The idea that they can’t accomplish this innovation without violating our copyright doesn’t make any sense.”
UpCodes doesn’t dispute the first part of that statement. Scott Reynolds, a former architect frustrated with the intricacies of building code compliance, and really frustrated with what he sees as an archaic system of access to these codes, came up with the original idea for UpCodes in 2016.
The UpCodes paid access program included constantly updated, searchable codes, with collaboration tools reminiscent of Google Docs, which they say offers a better user experience than the UCC. They currently host building codes covering 26 states and charge $29 a month for individuals, and $49 for a team.
UpCodes has since updated its offerings with UpCodes AI, a program being pitched as “spellcheck for buildings.” Users can add digital 3D models with Building Information Modeling (BIM) data, and, using natural language processing, artificial intelligence, and the current UpCodes database, the program checks the plan against current building requirements.
The Reynolds say they’re still in beta, but eventually believe this program can help save a significant chunk of the money wasted every year by U.S. developers demolishing and rebuilding structures due to code compliance issues. A 2016 National Association of Homebuilders study found that regulations make up 24.3 percent of the final cost of new homes, while a recent McKinsey report find that cumbersome building codes can be an obstacle to new construction.
They also dispute that they could, and should, work with the ICC. They never reached out to the organization, and first heard from them in September of 2017, via lawyers, when their legal exchange began.
“We’ve had a lot of people reach out to us of telling about working with the ICC,” says Garrett Reynolds. “They are very resistant to letting anybody work with their laws. Anything they perceive might lead to less sales of the law, which they’re not excited about. Our position is, they’re not the gatekeepers. We decided we’re not going that route.”
Who’s responsible for updating the law (and paying for it)?
The concept of having a third-party professional organization write codes then adopted into law isn’t unique to the ICC. According to EFF’s Stolz, this is common in many arenas that need updated safety standards, including product standards, as well as educational standards.
The practice is enshrined in law via what’s called Office of Management and Budget Circular A-119, where the federal government encourages federal agencies to rely on privately authored standards and instructs agencies “to observe and protect the rights of the copyright holder.” ICC creates model codes that are adopted by state and local governments.
According to the ICC, this kind of public-private collaboration creates the code at no cost to taxpayers. Most governmental agencies don’t have the consistent access to resources, or the technical expertise, to do the kind of comprehensive updates the ICC does to the code every three years via large conferences and discussions among industry professionals. Having a third party also avoids industry influence on safety standards, an issue front-and-center in the Boeing 737 Max scandal. As Oncu says, nothing is free.
According to Doll, the ICC recognizes the public’s right to access the law, which is why they place the code online. The example they presented was a homeowner needing to find correct specs before they add a deck.
“Our copyright protection is essential to our ability to generate the revenue we need to support code development,” Oncu says. “We fund the updates of our codes through the sale of these codes. Technology allows us to find a balance. We recognize the public’s right, and allow meaningful and easy public access, but preserve our right to carry on our code development mission.”
Kevin Fee, an outside attorney representing the ICC, says the Fair Use arguments by UpCodes don’t represent the reality of legal precedent and copyright law.
“There’s a belief out there that once a government adopts these codes, the copyright magically disappears,” says Fee. “There’s no support for this proposition in the Copyright Act.”
Real-world implications of code access
Designer David Weaver works for BCV Architecture and Interiors, a San Francisco-based firm that has tried out both of UpCodes’s products. He immediately saw the appeal of what they offered. For his decade-long career, he, like many colleagues, had been struggling with codes, and the inability to dig into them in way familiar to those using modern technology (i.e. a searchable, shareable online database). His office uses books purchased from the ICC; he’s never worked for a company that’s used the subscriber, paid log-in section of the ICC website.
“You need to sort through a few volumes of really dense language,” he says. “The books on the shelf end up having lots of marked pages and Post-It notes.”
The ability to interact with the codes in a way that’s familiar to anybody who has used a search engine has been useful. But he also sees drawbacks. Code compliance takes time because it’s important. A technical tool, no matter how much time it may potentially save—UpCodes told Techcrunch that an early version of the AI program flagged an average of 27 violations per project—shouldn’t be a panacea.
“I’m of two minds,” he says. “Buildings are very complicated, and no matter how many intelligent people are working on a project, one last check is very welcome. But if one relies too much on tech, the underlying understanding of the why behind the code isn’t understood. As a design professional, it’s important to understand the purpose behind the codes. It’s about safety.”
What is fair use in this case?
The Reynolds and their attorneys cite a number of similar cases in their argument that these types of codes, even if they’re adopted via standards-based organizations, should be free and accessible to all. Nobody can copyright the law.
They point to the case of Public.Resource.Org, a website that publishes other government codes in an effort to make government information more accessible. Founded by open records advocate Carl Malmud, this nonprofit has been sued by multiple organizations for publishing similar standards. EFF lawyers, including Mitch Stoltz, have previously defended them.
In a 2018 case ASTM (American Society for Testing and Materials) et al. v Public.Resource.org, the judge’s decision in the nonprofit’s favor read, in part, “As a matter of common-sense, this cannot be right: access to the law cannot be conditioned on the consent of a private party.
Of course, there’s a difference between a non-profit and a software company, and publishing information for free access and charging for a service.
“Not everything is for free just because the internet was invented,” says Fee. “Just like music and videos aren’t legally available for free, other copyrighted materials aren’t available for free.”
The ICC also feels it’s disingenuous to frame this as an access problem, when UpCodes is a private business looking to profit.
“UpCodes is looking to make money, they’re charging for these projects,” says Oncu.
It’s arguable, as Stoltz says, that building codes represents some of the most applicable law to our everyday existence. Most everybody lives inside, owns, or works within a building. Where does the balance lie between innovation, access, and funding technical expertise?
“The promise of technology and the law is that it can make law more accessible to the average person,” says Stoltz. “There’s less reliance on expensive experts to gauge if something meets these tricky regulations. This company, UpCodes, is definitely trying to enable more access.”