Page:International Code Council v. UpCodes (2020).pdf/70

 Second Circuit merger law and analogous out-of-circuit precedent both demonstrate that this Court should consider the circumstances that prevailed at the time of Defendants’ alleged infringement. Bearing this in mind, Defendants’ claim that the text of the I-Codes may have merged with the idea or fact of laws that adopted those I-Codes without amendment carries substantial force. Even though the model codes themselves have not become the law, one would need to use those model codes’ precise language to express laws that had adopted the codes by reference in their entirety. Just as accurately identifying a fully-adopted model code as the enacted law amounts to posting that law, which is in the public domain, copying a model code that has been adopted in full would be protected by merger if done for the purpose of expressing the identically-worded law. If the record reflects that Defendants meant only to express the idea of those laws, then Defendants would not be liable for posting identical model codes.

As ICC might rightfully point out, Defendants did not post the identical text of enacted laws because the model codes on Historic UpCodes had copyright pages. However, copying the copyright pages is best considered de minimis under the circumstances. See Warner Bros. Inc. v. Am.