Page:International Code Council v. UpCodes (2020).pdf/16

 also challenged the various defenses raised by Defendants, including merger and fair use. ( See id. at 16–24.)
 * 2. Defendants’ Motion

On May 31, 2019, Defendants filed a cross-motion for partial summary judgment on their counterclaim. ( See Defendants’ Motion.) They requested a declaratory judgment that Current UpCodes does not infringe ICC’s copyrights, deferring their claim as to Historic UpCodes for either a subsequent motion or trial. ( See “Defendants’ Memo,” Dkt. No. 85-1, at 3 n.1.) Defendants primarily argued that Current UpCodes posts only government-enacted building codes, which constitute the law and thus in the public domain. ( See id. at 11–33.) They added that to the extent the codes they post are not in the public domain, such posting is otherwise protected as fair use. ( See id. at 33–44.) Defendants lastly raised the defense of collateral estoppel, based on a prior suit about model building codes and the public domain involving ICC’s predecessor, SBCCI. ( See id. at 44–49.)

ICC opposed Defendants’ Motion on June 28, 2019. ( See “ICC Opposition,” Dkt. No. 90.) ICC argued that state and local adoption of the I-Codes does not prevent ICC from enforcing its copyrights in model code text incorporated by