Page:International Code Council v. UpCodes (2020).pdf/88

 823, 2018 WL 5258583, at *6 (S.D.N.Y. Sept. 7, 2018) (internal quotation marks omitted).

The ASTM court stated that where a defendant “limits its copying to only what is required to fairly describe the standard’s legal import, this factor would weigh strongly in favor of finding fair use here, especially given that precision is ten-tenths of the law.” 896 F.3d at 452. The third fair use factor thus does not weigh against a finding that accurate copying of the I-Codes as Adopted is a fair use, because the substantial copying of the I-Codes is nonetheless limited to exactly what is contained in the enacted laws themselves.

But the third factor likely weighs against a finding of fair use as to Defendants’ copying of the I-Code Redlines. In particular, the I-Code Redlines reproduced literally the entirety of the I-Codes underlying the enacted laws, including whole sections and appendices that were not adopted (again, Wyoming’s choice not to adopt a section on tsunami-related flood hazards is an example in ICC’s favor). ( See Gratz Opp. Decl. Ex. 3.) However, this factor must be weighed against the transformative character of the allegedly infringing use. Defendants’ copying would obviously be excessive if posting the I-Code Redlines is