Page:International Code Council v. UpCodes (2020).pdf/28

 The First Circuit first considered the issue in BOCA v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980). BOCA concerned the defendant’s publication and sale of the Massachusetts Building Code, which adopted BOCA’s building code with minor amendments pursuant to a licensing agreement and was made available for public viewing at state buildings, and which BOCA published and sold at a relatively low price. See id. at 732. Like Defendants here, the defendant argued that the model building code entered the public domain to the extent adopted into Massachusetts law. Id. at 733. Though the First Circuit did not definitively rule on the issue, it suggested at length that it agreed.

The First Circuit began by citing the first three Government Edicts cases for the proposition, much as the Eleventh Circuit stated in PRO, that citizens collectively author the law. See id. at 733–35. However, the First Circuit did not rely on that rationale alone, noting “the very important and practical policy that citizens must have free access to the laws which govern them … based on the concept of due process.” Id. at 734. It observed that the building codes at issue “[had] the effect of law and carr[ied] sanctions of fine and imprisonment for