Page:International Code Council v. UpCodes (2020).pdf/83

 with a purpose different from that which ICC has when it creates and distributes the model I-Codes.

Whether the I-Code Redlines serve a transformative purpose is a closer call. Like the I-Codes as Adopted, Defendants claim these redlines help members of the public to better understand their legal obligations. In a sense, the I-Code Redlines are like legislative history showing what the state and local jurisdictions explicitly decided to add or delete when adopting the model codes. At least in the abstract, there is some force to the argument that it is transformative to share materials that help understand the law, even if those materials themselves do not constitute the law. For example, the Supreme Court emphasized in PRO that describing the Georgia state code’s annotations as “non-binding and non-authoritative … undersells their practical significance.” See 140 S.Ct. at 1512. It observed that the annotations would inform readers that certain statutory obligations were in fact unenforceable relics, and it also expressed concern that a state might try to “monetize its entire suite of legislative history.” See id. at 1512–13.

However, the Supreme Court’s concerns do not necessarily militate in favor of finding use of the I-Code