Case: 23-50081 Document: 56-1 Page: 1 Date Filed: 07/16/2024
`
`United States Court of Appeals
`for the Fifth Circuit
`____________
`
`No. 23-50081
`____________
`
`Canadian Standards Association,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`July 16, 2024
`
`Lyle W. Cayce
`Clerk
`
`Plaintiff—Appellee,
`
`
`
`versus
`
`
`P.S. Knight Company, Limited; PS Knight Americas,
`Incorporated; Gordon Knight,
`
`
`Defendants—Appellants.
`______________________________
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 1:20-CV-1160
`______________________________
`
`
`Before King, Willett, and Douglas, Circuit Judges.
`King, Circuit Judge:
`
`This international copyright case considers the alleged infringement
`of seven of Plaintiff-Appellee’s model codes, all of which were created and
`copyrighted in Canada. The district court, finding that Defendants-
`Appellants infringed Plaintiff-Appellee’s copyrights, denied Defendants-
`Appellants’ motion for summary judgment, granted Plaintiff-Appellee’s
`motion for summary judgment, and issued a permanent injunction against
`Defendants-Appellants. Because we find that the district court improperly
`applied the explicit and controlling holding of Veeck v. Southern Building Code
`
`

`

`Case: 23-50081 Document: 56-1 Page: 2 Date Filed: 07/16/2024
`
`No. 23-50081
`
`Congress International, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc), we
`REVERSE the district court’s summary judgment decisions, VACATE
`the district court’s grant of injunctive relief, and REMAND with
`instructions to grant summary judgment in favor of Defendants-Appellants
`and to dismiss Plaintiff-Appellee’s copyright infringement claim.
`
`I.
`
`Canadian Standards Association (“CSA”) is a Canadian not-for-
`profit corporation. It has developed over 3,000 voluntary standards and
`codes in Canada, and it holds Canadian copyright registrations in its model
`codes and standards. CSA sells these codes to relevant tradespeople working
`in industrial fields in Canada. Forty percent of CSA’s works have been
`incorporated by reference into different regulations or statutes in Canada.
`
`Seven of CSA’s copyrighted model codes are at issue in this case.1 All
`seven of these model codes have been fully incorporated by reference into at
`least one Canadian statute or regulation. There is no evidence to suggest that
`any of these seven works have been incorporated by reference into any
`United States federal, state, or city law, rule, or regulation.
`
`Gordon Knight is the president and sole shareholder of the Canadian
`company P.S. Knight Co., and the sole corporate director of the American
`company P.S. Knight Americas, Inc. (hereinafter, collectively, “Knight”).
`Knight is also the owner and operator of the website “Deep 6 Project,”
`formerly “restorecsa.com,” dedicated to discussing the copyright litigation
`between CSA and Knight. Knight, through his companies, sells competing
`
`_____________________
`
`1 Those seven model codes are the 2015, 2018, and 2021 editions of CSA’s
`Canadian Electrical Code; the 2015 and 2020 editions of CSA’s Propane Storage and
`Handling Code; and the 2015 and 2019 editions of CSA’s Oil and Gas Pipeline Systems
`Code.
`
`2
`
`

`

`Case: 23-50081 Document: 56-1 Page: 3 Date Filed: 07/16/2024
`
`No. 23-50081
`
`versions of CSA’s seven copyrighted works, which Knight describes as,
`“Same Code[s]—Different Price,” and, “All the Code[s] at less than ½ the
`cost!”
`
`A.
`
`The dispute between CSA and Knight originated in 1985, when
`Knight’s father, Peter Knight, published the first “Electrical Code
`Simplified” book, which included references to CSA’s Canadian Electrical
`Code. CSA alleges that over time, the “Electrical Code Simplified”
`transformed from an annotated, shorter version of CSA’s model code to an
`exact replica. CSA attempted to acquire Peter Knight’s business, but in
`2005, after negotiations broke down, CSA wrote a letter to Gordon Knight
`stating that “it wanted its copyright in the Canadian Electrical Code
`respected.” In 2011, after Gordon Knight officially assumed control of the
`company from his father, CSA again informed Knight that he had “no
`license [in the Canadian Electrical Code]” and even if there ever was a
`license, it “had been terminated since at least 2005.”
`
`After Knight failed to oblige, CSA filed suit against Knight in
`Canadian federal court, alleging copyright infringement of its 2015 Canadian
`Electrical Code. The Canadian trial court ruled in favor of CSA,2 and it
`enjoined Knight from reproducing, distributing, or selling any publication
`that infringes upon CSA’s copyright in its 2015 Canadian Electrical Code.
`On December 7, 2018, this judgment was affirmed on appeal.
`
`_____________________
`
`2 The Canadian trial court held that (1) CSA owned a valid copyright in its 2015
`Canadian Electrical Code under Canadian law; (2) Knight presented no valid evidence to
`support his defense that he was a co-author of the code; (3) Knight had no license to
`reproduce the code; and (4) Knight infringed CSA’s copyright.
`
`3
`
`

`

`Case: 23-50081 Document: 56-1 Page: 4 Date Filed: 07/16/2024
`
`No. 23-50081
`
`On June 17, 2020, Knight formed P.S. Knight Americas, Inc. in the
`State of Texas. On September 1, 2020, Knight applied for, and successfully
`registered, a U.S. Copyright for “Knight’s Canadian Electrical Code, Part
`One: 24th Code Edition, 2018-2021” under the name “Canadian Electrical
`Code.”3 Knight then began to produce his own versions of other CSA model
`codes. By June 18, 2021, Knight offered four competing versions of CSA’s
`codes.4
`
`On May 9, 2021, Knight authored a blog post explaining that he had
`“fled the Country” because “both sides of the Civil Service were now
`moving rapidly to imprison [him] and take all that [he] own[ed].” The blog
`post specified, however, that Knight’s codes would be “unaffected” and that
`“[f]or months, [Knight] had been quietly transferring [his] assets out of
`Canada . . . to ensure continuity of service.” On July 20, 2021, CSA
`requested that the Canadian federal court issue a contempt order against
`Knight. The Canadian court found Knight in contempt and extended its
`previous injunction.
`
`_____________________
`
`3 In a blog post published on October 18, 2020, Knight explained: “Next, we
`checked US copyright on the Electrical Code. It turns out that the Canadian Standards
`Association (CSA) somehow forgot to register copyright over this document, even while
`it was under litigation in Canada. Seriously. They spent well over a million dollars in
`Canadian Courts, arguing that they own all our electrical laws and they feverishly pointed
`to their registration of copyright in Canada but, amazingly, didn’t bother to lock down
`copyright in the US. So we did. As you read this, the Canadian Electrical Code is the private
`property of PS Knight Americas Inc in the US. Can you just imagine the fuming at CSA
`headquarters as they read that last sentence? All that taxpayer money, all that time, and
`frustration and, frankly, embarrassment in the industry for their conduct -all of that to no
`avail. Wow. Must be a difficult day over there.”
`4 The four competing versions were: (1) Knight’s Canadian Electrical Code, Part
`One: 24th Code Edition, 2018-2021; (2) Knight’s Canadian Electrical Code – 25th Edition,
`2021-2024; (3) Knight’s Propane Storage & Handling Code – 2015 Edition; and (4)
`Knight’s Oil & Gas Pipeline Systems Code – 2019 Edition.
`
`4
`
`

`

`Case: 23-50081 Document: 56-1 Page: 5 Date Filed: 07/16/2024
`
`No. 23-50081
`
`On November 5, 2021, the Canadian federal court permanently
`enjoined Knight from infringing CSA’s copyrights by selling certain
`electrical, oil and gas pipeline systems, and propane codes.5 The Canadian
`court also prohibited Knight from “importing into Canada [any infringing
`works]” and operating any website for the purpose of infringing CSA’s
`copyrights, and it awarded CSA $100,000 in statutory damages and $75,000
`in punitive damages.
`
`B.
`
`While this Canadian litigation was occurring, on November 20, 2020,
`CSA filed suit against Knight in federal district court in the Western District
`of Texas. In its amended complaint, CSA alleged that Knight infringed seven
`of CSA’s copyrights in its model codes. CSA sought a declaratory judgment
`of invalidity and non-ownership of Knight’s United States copyright
`registration. Knight responded by asserting counterclaims of invalidity or
`unenforceability of CSA’s seven Canadian-copyrighted works.6 Both parties
`moved for summary judgment on their claims, defenses, and counterclaims.
`
`On January 4, 2023, the district court granted CSA’s motion for
`summary judgment in its entirety and denied Knight’s motion for summary
`judgment in its entirety. The district court also granted declaratory judgment
`in favor of CSA, holding Knight’s copyright registration invalid as a matter
`
`_____________________
`
`5 More specifically: (1) Knight’s 2021 Canadian Electrical Code, in violation of
`CSA’s copyright C22.1.21: Canadian Electrical Code, Part 1; (2) Knight’s 2015 Oil & Gas
`Code, in violation of CSA’s copyright CSA Z662-15: Oil and Gas Pipeline Systems; (3)
`Knight’s 2019 Oil & Gas Code, in violation of CSA’s copyright Z662-19: Oil and Gas
`Pipeline Systems; (4) Knight’s 2015 Propane Code, in violation of CSA’s copyright B-
`149.2-15: Propane Storage and Handling Code; and (5) Knight’s 2020 Propane Code, in
`violation of CSA’s copyright B149.2-20: Propane Storage and Handling Code.
`6 Knight also sought declaratory judgment that he was a co-owner or co-author in
`CSA’s Canadian Electrical Code, but that issue was not appealed.
`
`5
`
`

`

`Case: 23-50081 Document: 56-1 Page: 6 Date Filed: 07/16/2024
`
`No. 23-50081
`
`of law,7 and it granted permanent injunctive relief to CSA, enjoining Knight
`from further infringing any of CSA’s seven copyrighted model codes. Knight
`appealed the district court’s grant of summary judgment and its issuance of
`injunctive relief.
`
`II.
`
`“Because this case is before the court on cross motions for summary
`judgment, we review the district court’s rulings de novo and construe all
`evidence and inferences in favor of the non-moving parties.” Evanston Ins. v.
`Mid-Continent Cas. Co., 909 F.3d 143, 146 (5th Cir. 2018). “We examine
`‘each party’s motion independently.’” Balfour Beatty Constr., L.L.C. v.
`Liberty Mut. Fire Ins., 968 F.3d 504, 509 (5th Cir. 2020) (quoting Springboards
`to Educ., Inc. v. Hous. Indep. Sch. Dist., 912 F.3d 805, 811 (5th Cir. 2019)).
`
`“The court shall grant summary judgment if the movant shows that
`there is no genuine dispute as to any material fact and the movant is entitled
`to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is a genuine
`dispute over a material fact if “the evidence is such that a reasonable jury
`could return a verdict for the nonmoving party.” McCarty v. Hillstone Rest.
`Grp., Inc., 864 F.3d 354, 357–58 (5th Cir. 2017) (citing Boudreaux v. Swift
`Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)).
`
`Additionally, we “review questions regarding foreign law de novo.”
`Alameda Films SA de CV v. Authors Rts. Restoration Corp., 331 F.3d 472, 476
`(5th Cir. 2003) (citing Karim v. Finch Shipping Co., 265 F.3d 258, 271 (5th
`Cir. 2001)); cf. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d
`82, 92 (2d Cir. 1998) (noting, in reviewing a district court’s application of
`
`_____________________
`
`7 The district court ordered Knight to cancel his U.S. copyright registration with
`the U.S. Copyright Office. Knight does not appeal that decision and, thus, we do not disturb
`the district court’s order.
`
`6
`
`

`

`Case: 23-50081 Document: 56-1 Page: 7 Date Filed: 07/16/2024
`
`No. 23-50081
`
`Russian copyright law, that a “[d]etermination of a foreign country’s law is
`an issue of law”). Both the United States and Canada are signatories to the
`Berne Convention for the Protection of Literary and Artistic Works. When
`countries are signatories to the Berne Convention, we are “commit[ed] . . .
`to apply foreign copyright law when required.” Indusoft, Inc. v. Taccolini, 560
`F. App’x 245, 250 (5th Cir. 2014), as revised (Mar. 20, 2014) (citing Itar-Tass
`Russian News Agency, 153 F.3d at 90–91).
`
`III.
`
`To bring a successful copyright infringement claim, “a plaintiff
`generally must prove two elements . . . ‘(1) ownership of a valid copyright,
`and (2) copying of constituent elements of the work that are original.’” BWP
`Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436, 439 (5th Cir.
`2017) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
`(1991)). To prove this second element, a plaintiff must show: “(1) factual
`copying and (2) substantial similarity.” Baisden v. I’m Ready Prods., Inc., 693
`F.3d 491, 499 (5th Cir. 2012) (quoting Positive Black Talk Inc. v. Cash Money
`Recs., Inc., 394 F.3d 357, 367 (5th Cir. 2004)). The second element has also
`been referred to as “unauthorized copying.” See Peel & Co. v. The Rug Mkt.,
`238 F.3d 391, 394 (5th Cir. 2001).
`
`At the outset, we must determine which law—Canadian or United
`States—should apply to each element of copyright infringement. Courts,
`including the Fifth Circuit, have held that the “ownership and essential
`nature of the copyrights alleged to have been infringed” are determined by
`the foreign law where the copyrights are held, and “United States law
`determines whether those copyrights have been infringed in the United
`States and, if so, what remedies are available.” Itar-Tass Russian News
`Agency, 153 F.3d at 84; see also Alameda Films SA de CV, 331 F.3d at 477–80
`(applying Mexican law to copyright ownership); Ennio Morricone Music Inc.
`
`7
`
`

`

`Case: 23-50081 Document: 56-1 Page: 8 Date Filed: 07/16/2024
`
`No. 23-50081
`
`v. Bixio Music Grp. Ltd., 936 F.3d 69, 72 (2d Cir. 2019) (applying Italian law
`to copyright ownership); Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290
`(11th Cir. 2011) (“Initial ownership of a copyrighted work is determined by
`the laws in the work’s country of origin.” (internal citations omitted)).
`Accordingly, we apply Canadian law to questions of copyright ownership,
`and we apply United States law to questions of infringement.
`
`A.
`
`On element one, we agree with the district court, and the parties do
`not dispute, that CSA owns valid Canadian copyrights in all seven of the at-
`issue model codes. Canadian copyright law creates a presumption that valid
`ownership of a copyright rests in the party named on the certificate of
`registration. Copyright Act, R.S.C. 1985, c. C-42, §§ 34.1(1), 53(2).
`Moreover, “so long as it is original, any writing may be the subject of
`copyright in Canada. This would include laws and regulations.” P.S. Knight
`Co. v. Canadian Standards Ass’n, 2018 FCA 222 at ¶ 18. Here, it is
`undisputed that CSA developed its codes in Canada and that “CSA has
`been awarded Canadian copyright registrations for its standards, including
`the seven which are at issue in this case.” Accordingly, the district court
`correctly decided that CSA’s seven Canadian copyrights are validly owned
`by CSA.
`
`B.
`
`The crux of this dispute hinges on whether Knight has engaged in
`“unauthorized copying” of CSA’s codes. See Peel & Co., 238 F.3d at 394.
`Knight argues that his copying of CSA’s codes is not actionable under the
`United States’ Copyright Act, as CSA’s model codes have become “the
`law” of Canada, and, thus, Knight’s copying of that “law” was permissible
`under this court’s holding in Veeck v. Southern Building Code Congress
`International, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc). We agree.
`
`8
`
`

`

`Case: 23-50081 Document: 56-1 Page: 9 Date Filed: 07/16/2024
`
`No. 23-50081
`
`In Veeck, the plaintiff, Southern Building Code Congress International
`(“SBCCI”), a nonprofit organization, developed and copyrighted model
`building codes in the United States. Id. at 793. SBCCI encouraged local
`governments to enact its model codes into law by reference for no cost. Id. at
`794. Two Texas cities, Anna and Savoy, chose to do so, incorporating by
`reference into their laws the model “Standard Building Code” written by
`SBCCI. Id. at 793. In 1997, defendant Peter Veeck posted Anna and Savoy’s
`local building codes on his noncommercial website. Id. In order to get a copy
`of the cities’ codes, Veeck purchased the 1994 Standard Building Code from
`SBCCI and copied and pasted the text directly onto his website. Id. Veeck
`did not specify that the codes were written by SBCCI. Id. SBCCI sued
`Veeck and “demanded that [Veeck] cease and desist from infringing its
`copyrights.” Id. at 794.
`
`This court, sitting en banc, held that Veeck did not infringe SBCCI’s
`copyrights in its model building codes. Id. at 800. First, this court examined
`the issue of copyright ownership, and held that SBCCI “indisputably holds
`a copyright in its model building codes.” Id. at 794. Second, this court
`addressed copyright infringement and held that “[w]hen [model] codes are
`enacted into law, . . . they become to that extent ‘the law’ of the
`governmental entities and may be reproduced or distributed as ‘the law’ of
`those jurisdictions.” Id. at 802.
`
`The facts of this case are similar to those in Veeck: defendants in both
`cases reproduced, without permission, copyrighted model codes that had
`already been fully incorporated by reference into at least one government
`statute or regulation. However, rather than apply Veeck, the district court
`attempted to distinguish the case. The district court noted that the merger
`doctrine and the government edicts doctrine—the two main frameworks
`the Veeck court
`applied by
`to reach
`its holding—both address
`copyrightability, not infringement. Thus, the district court reasoned that
`
`9
`
`

`

`Case: 23-50081 Document: 56-1 Page: 10 Date Filed: 07/16/2024
`
`No. 23-50081
`
`Veeck is inapplicable because Canadian law is applied to questions of
`copyrightability, and Canadian law does not recognize the merger doctrine or
`the government edicts doctrine.
`
`But our inquiry begins and ends with Veeck’s clear holding. Veeck
`explicitly stated that the question before the court was whether “Peter Veeck
`infringed SBCCI’s copyright.” Id. at 794 (emphasis added). In fact, prior to
`reaching its discussion of infringement, the Veeck court specifically decided
`the issue of copyrightability: “As the organizational author of original works,
`SBCCI indisputably holds a copyright in its model building codes.” Id. (emphasis
`added). In other words, by “indisputably” answering the copyrightability
`question at the outset of the discussion section, the only question that was
`left for the Veeck court to contend with was infringement. And, because
`United States law applies to questions of infringement, Veeck is outcome
`determinative.8
`
`Our colleague in dissent would uphold the district court, focusing on
`Veeck’s analysis rather than its holding. But that interpretation directly
`contradicts the explicit language of Veeck. While the Veeck court may have
`muddied the waters by extensively utilizing copyrightability reasoning
`throughout its opinion, its holding is clear: model building codes are
`copyrightable, but once incorporated into law, they are not protected under
`the Copyright Act. As a three-judge panel, we are bound to follow Veeck’s
`holding.
`
`Moreover, the dissent’s proposed path conflicts with the policy goals
`behind our international copyright laws. As noted above, “United States law
`determines whether [foreign] copyrights have been infringed in the United
`
`_____________________
`
`8 For the same reasons, the dissent’s allusions to Canadian court determinations
`are inapposite to this court’s analysis of whether Knight infringed CSA’s model codes.
`
`10
`
`

`

`Case: 23-50081 Document: 56-1 Page: 11 Date Filed: 07/16/2024
`
`No. 23-50081
`
`States and, if so, what remedies are available.” Itar-Tass Russian News
`Agency, 153 F.3d at 84. This is for good reason: “[A]n author who is a national
`of one of the member states of either Berne or the U.C.C., or one who first
`publishes his work in any such member state, is entitled to the same copyright
`protection in each other member state as such other state accords to its own
`nationals.” 5 Melville B. Nimmer & David Nimmer, Nimmer
`on Copyright § 17.05 (2023) (emphasis added); see Itar-Tass, 153 F.3d
`at 89 (quoting Nimmer and calling this statement “correct”). In short, we
`do not give foreign authors stronger copyright protection than that afforded
`to United States authors.
`
`Under Veeck, it is not copyright infringement to copy and reprint
`“only ‘the law,’” where copyrightable model codes have been adopted by
`reference into law by a governmental entity. Veeck, 293 F.3d at 800. The only
`material difference between Veeck and this case is that Knight reprinted only
`“the law” of Canada while Veeck reprinted only “the law” of two U.S. cities.
`Holding Veeck inapplicable would improperly expand U.S. copyright
`protection for Canadian (and other foreign) model codes.
`
`We are also not persuaded by CSA’s alternative arguments
`attempting to distinguish Veeck. First, CSA points out that Veeck dealt with
`model codes written and implemented in the United States, while this case
`deals with model codes written and implemented in Canada. This distinction
`is immaterial. Veeck decided that “[w]hen [model] codes are enacted into
`law, . . . they become to that extent ‘the law’ of the governmental entities and
`may be reproduced or distributed as ‘the law’ of those jurisdictions.” Id. at
`802. Veeck’s holding makes no distinction between the law of the United
`States and the law of any other jurisdiction. Accordingly, when Canadian
`jurisdictions incorporate CSA’s model codes by reference into their laws,
`CSA’s codes become “the law” of those Canadian jurisdictions, just as
`SBCCI’s codes became “the law” of Anna and Savoy, Texas.
`
`11
`
`

`

`Case: 23-50081 Document: 56-1 Page: 12 Date Filed: 07/16/2024
`
`No. 23-50081
`
`Second, CSA highlights a distinction made by the Veeck court
`between “model codes” and “extrinsic standards.” See id. at 803–05. While
`“model codes” serve “no other purpose than to become law,” “extrinsic
`standards” require citizens “to consult or use a copyrighted work in the
`process of fulfilling their obligation” and have other “non-governmental
`uses.” Id. at 804–05. In fact, Veeck noted that it was “important” that the
`standards in that case were not created by “private groups for reasons other
`than incorporation into law.” Id. at 805. Here, posits CSA, the seven
`copyrighted works at issue have other nongovernmental purposes, and are
`thus distinguishable as “extrinsic standards.” A review of the record,
`however, indicates otherwise.
`
`It is true that (1) CSA’s codes are sold to relevant tradespeople
`working in relevant industrial fields in Canada; (2) CSA’s codes are created
`to “promote improved consistency in . . . installations across the country”
`and “better protect . . . workers”; and (3) only 40% of CSA’s standards are
`referenced in government regulations. However, these reasons are the same
`reasons that safety standards are adopted as laws in the first place and are not
`inapposite with the conclusion that CSA’s main reason for producing its
`codes is to eventually be adopted and enforced by regulatory authorities. Just
`because only 40% of CSA’s standards are presently implemented into
`government regulation does not mean that CSA does not intend for all of
`them to be implemented eventually. In fact, the Canadian court noted that
`the 2015 version of CSA’s Electrical Code specifically states in its
`introduction that it is a “voluntary code [made] for adoption and enforcement
`by regulatory authorities,” and, as such, has been adopted by “federal,
`provincial and territorial governments” in Canada. P.S. Knight Co., 2018
`FCA 222 at ¶ 9 (emphasis added). The Canadian court also noted that CSA
`is accredited by the Canadian Standards Council—a federal Crown
`corporation—which is empowered to accredit organizations “engaged in
`
`12
`
`

`

`Case: 23-50081 Document: 56-1 Page: 13 Date Filed: 07/16/2024
`
`No. 23-50081
`
`standards development” in Canada, and then to approve those standards as
`“national standards.” Id. In fact, CSA described itself to the United States
`Federal Bureau of Investigation as “a Canadian regulatory entity . . . [that]
`report[s] as a government agency to the Canadian Minister of Industry.”
`(emphasis added). Thus, CSA’s copyrighted works, like the copyrighted
`works in Veeck, are “model codes” and are not “extrinsic standards.”
`
`Finally, both CSA and the district court contended that because
`Knight produces wholesale replicas of CSA’s copyrighted works, it is
`copying CSA’s model codes “as model codes,” and not merely as Canadian
`law. CSA is correct that Veeck carved out a “model codes as model codes”
`exception. Specifically, the court noted that “the result in [Veeck] may have
`been different if Veeck had published not the building codes of Anna and
`Savoy, Texas, but the SBCCI model codes, as model codes.” Veeck, 293
`F.3d at 805. However, CSA is incorrect that the exception applies here.
`Knight copies CSA’s codes entirely as “wholesale replicas” because that is
`how Canadian jurisdictions incorporate CSA’s codes into law. There is no
`indication that Knight publishes anything extra—that is, any material that
`has not been incorporated into law. Thus, Knight is not publishing CSA’s
`model codes “as model codes,” but it is publishing CSA’s model codes only
`and to the extent that those model codes have become “the law” of Canadian
`jurisdictions.
`
`*
`
`*
`
`*
`
`Accordingly, the facts in this case are not so dissimilar from the facts
`in Veeck as to merit distinction. Nor do these facts fit into any of Veeck’s
`exceptions. As such, Veeck’s holding applies with full force—because CSA’s
`model codes are incorporated into Canadian law, Knight’s copying of those
`codes is not infringement. The district court erred by concluding otherwise.
`
`
`
`13
`
`

`

`Case: 23-50081 Document: 56-1 Page: 14 Date Filed: 07/16/2024
`
`No. 23-50081
`
`IV.
`
`Knight’s actions did not constitute copyright infringement as a matter
`of United States copyright law under Veeck.9 We REVERSE the district
`court’s summary judgment decisions and REMAND with instructions to
`grant summary judgment in favor of Knight and to dismiss CSA’s
`infringement claim. Additionally, because CSA’s claim now fails as a matter
`of law, we VACATE the district court’s grant of injunctive relief.
`
`_____________________
`
`9 Because Knight’s actions are not infringement as a matter of law, we need not
`reach Knight’s appeal of the district court’s decision on fair use.
`
`14
`
`

`

`Case: 23-50081 Document: 56-1 Page: 15 Date Filed: 07/16/2024
`
`No. 23-50081
`
`Dana M. Douglas, Circuit Judge, dissenting:
`
`I agree with the majority that the crux of this dispute hinges on
`whether Knight’s copying of Canadian law was permissible under our
`holding in Veeck v. Southern Building Code Congress International, Inc., 293
`F.3d 791 (5th Cir. 2002) (en banc). However, because I interpret Veeck
`differently, I depart ways with the majority and respectfully dissent.
`
`“To prove copyright infringement, a plaintiff must show ‘ownership
`of a valid copyright’ and ‘copying’ by the defendant.” Batiste v. Lewis, 976
`F.3d 493, 501 (5th Cir. 2020) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340, 361 (1991)). I agree with the majority that CSA owns valid
`Canadian copyrights in all seven of the at-issue model codes. But I disagree
`that Veeck’s holding on infringement is outcome determinative in this case.
`
`Although Veeck considered whether one party infringed on another’s
`model codes, its analysis focused on whether model codes are copyrightable.
`293 F.3d at 794. “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. As model codes, however, the organization’s works retain their
`protected status.” Id. at 800 (emphases added). In other words, model codes
`are copyrightable, but adopted law is not—and what is not copyrightable
`cannot be infringed. This is demonstrated throughout the opinion.
`
`reviewing Supreme Court decisions on
`in
`For example,
`copyrightability, we found that “there is no reason to believe that state or
`local laws are copyrightable.” Id. at 796 (emphasis added). Those decisions
`“consistently [] enunciate the principle that ‘the law,’ whether it has its
`sources in judicial opinions or statutes, ordinances or regulations, is not
`subject to federal copyright law.” Id. at 800. To that end, we held that “[a]s
`governing law . . . the building codes of Anna and Savoy, Texas cannot be
`copyrighted.” Id. at 796 (emphasis added).
`
`15
`
`

`

`Case: 23-50081 Document: 56-1 Page: 16 Date Filed: 07/16/2024
`
`No. 23-50081
`
`Of course, Veeck speaks to infringement. But to determine whether
`the model building codes of Anna and Savoy, Texas, could be infringed, the
`court needed to determine whether those codes were in fact copyrightable.
`And in a thorough opinion, our en banc court determined that once adopted
`as “the law” in the United States, those codes lost their copyright protection
`and could not be infringed upon. Knight argues that his copying of CSA’s
`codes is not actionable under the United States’ Copyright Act because
`CSA’s model codes have become “the law” of Canada, and, thus, Knight’s
`copying of that law was permissible under Veeck.
`
`But Canada has determined that CSA’s model codes, whether
`adopted into Canadian law and regulations or not, are copyrightable. P.S.
`Knight Co. v. Canadian Standards Ass’n, 2018 FCA 222 at ¶ 18. Canada,
`whose determinations on copyrightability are conceded by the majority and
`Knight, does not make a distinction between adopted and unadopted model
`codes. Accordingly, Veeck’s reasoning is inapplicable because it is premised
`on our understanding that “the law” in the United States is not
`copyrightable, unlike it is in Canada.1
`
`Having distinguished Veeck, this case is fairly straightforward. As the
`district court found, “[t]he facts here present the rare case in which there is
`direct evidence that defendants copied plaintiff’s work.” Aware of this,
`
`_____________________
`
`1 Although the district court approached this question differently, its opinion
`reinforces my understanding of Veeck’s application to these facts. Focusing on the
`government edicts doctrine, the district court rejected Knight’s argument that the
`copyrights are invalid because nobody “can own the law.” “[T]he validity of a foreign
`copyright is determined based on compliance with the foreign government’s copyright law,
`not United States law.” Further, courts have only applied the government edicts doctrine
`to laws of the United States, including our court in Veeck. Even the text of the Copyright
`Act limits copyright carve-out for government edicts to “any work of the United States
`Government.” 17 U.S.C. § 105(a) (emphasis added). But CSA’s works were “authored in
`Canada by a private Canadian organization and incorporated only into Canadian law.”
`
`16
`
`

`

`Case: 23-50081 Document: 56-1 Page: 17 Date Filed: 07/16/2024
`
`No. 23-50081
`
`Knight’s second argument is that the district court erred in granting
`summary judgment to CSA on Knight’s fair use defense. In applying the fair
`use doctrine, we consider the following factors:
`
`(1) the purpose and character of the use, including whether such use
`is of a commercial nature or is for nonprofit educational purposes;
`
`(2) the nature of the copyrighted work;
`
`(3) the amount and substantiality of the portion used in relation to the
`copyrighted work as a whole; and
`
`(4) the effect of the use upon the potential market for or value of the
`copyrighted work.
`
`17 U.S.C. § 107; Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27
`F.4th 313, 321 (5th Cir. 2022). Here, the overwhelming balance of factors
`cautions against a finding of fair use.
`
`First, Knight’s Codes are not transformative, as they are simply
`copies of CSA’s code. Beyond providing nothing transformative, their
`purpose is entirely commercial—Knight is not a nonprofit, but a business,
`who is actively engaged in undercutting CSA’s prices to make money for
`itself. See Harper & Row Publishers, Inc. v. Nat