Page:International Code Council v. UpCodes (2020).pdf/91

 cause any additional harm? Second, if the alleged infringer reproduced only the portions of the standards that “became law,” to what extent would that affect the markets for the complete standards? Third, how, if at all, does the infringement affect the market for derivative works, particularly considering that the standards are regularly updated and that the private parties most interested in the standards would presumably remain interested in having the most up-to-date ones? See ASTM, 896 F.3d at 453. The ASTM court also noted that ICC remains profitable after the ruling in Veeck both through sales of the I-Codes and other services such as consulting, certification, and training, which might suggest that ICC’s markets remain resilient despite the copying allowed in Veeck. See id.

The Court notes that, unlike the other factors, the fourth fair use factor could potentially weigh against Defendants’ copying of the I-Codes as Adopted. When an enacted law is identical to an I-Code and identified as such on UpCodes, it is fair to say that it is an effective substitute for the model code itself. The parties also genuinely dispute the extent to which the enacted codes could affect ICC’s market for derivative works including training and certification. Though the ASTM court’s