Page:International Code Council v. UpCodes (2020).pdf/17

 reference, citing various statutory and constitutional concerns and claiming that a contrary holding would contravene Second Circuit precedent. ( See id. at 7–24.) ICC also took issue with the various defenses raised by Defendants, including merger, fair use, and collateral estoppel. ( See id. at 24–50.) ICC further disputed that Current UpCodes reproduces only the law as enacted, noting that Defendants continue to reproduce model code text and appendices even when the enacting states identified did not adopt those portions of the model codes. ( See id. at 5–7.)

Defendants replied in further support of their motion on August 2, 2019. ( See “Defendants’ Reply,” Dkt. No. 96.) Defendants argued that ICC’s observations regarding the inaccurate posting of enacted codes owed to inadvertent errors and technical glitches, all of which were fixed shortly after ICC notified Defendants. ( See id. at 1–3.) Defendants otherwise reiterated their arguments regarding the public domain, merger, fair use, and collateral estoppel.

A. MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate if the evidence shows that “there is no genuine dispute as to any material fact