The final argument deployed by SBCCI and the dissent casts the merger doctrine as an inherent balancing test in which courts must reconcile the policies underlying the Copyright Act with the public interest in the free flow of information and ideas. Compare CCC Info Serv. Inc. v. McLean Hunter Market Reports, Inc., 44 F.3d 61, 68 (2nd Cir. 1994) (interpreting Second Circuit's balancing test). It is true that where the line is unclear between expression and facts, procedures, processes, methods of operation, or information in the public domain, a court considering the applicability of § 102(b) must recur to the statute's underlying policy. See, e.g., Feist, 499 U.S. at 361-64, 111 S.Ct. at 1295-97 (determining copyrightability of compilations of facts); Mason, 967 F.2d at 139 (copyrightability of expression in maps). This case, however, is not close. The building codes of Anna and Savoy, Texas can be expressed in only one way; they are facts.
Veeck placed those facts on his website in precisely the form in which they were adopted by the municipalities.[1] When the § 102(b) dichotomy is clear, judges are not permitted to substitute policy choices for the legislature's determination. We emphasize that in continuing to write and publish model building codes, SBCCI is creating copyrightable works of authorship. When those codes are enacted into law, however, they
- ↑ For the first time, in this court, SBCCI alleges that Veeck did not exactly copy the ordinances, because in the course of their adoption, the towns rejected certain parts of the SBCCI model codes. There is no evidence in the district court record to sustain this contention.
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