Page:International Code Council v. UpCodes (2020).pdf/93

 Redlines actually affected revenues for ICC’s derivative works, and the record tends to focus on a variety of derivative works that are not redlines, such as training and certification documents, user’s guides, handbooks, and code commentary. Whether the I-Code Redlines affect the markets for these apparently different products presents a genuine dispute of material fact.
 * 5. Overall Analysis

On balance, the Court is persuaded that accurate posting of the I-Codes as Adopted is a fair use as a matter of law. As noted above, the first and second fair use factors together weigh heavily in Defendants’ favor. The I-Codes as Adopted are clearly factual rather than fictional, and Defendants posted the works in their capacity as laws, rather than model codes. The purpose for which the I-Codes as Adopted were copied, displayed, and distributed is thus transformative. The third factor does not weigh against such copying either, as accurate copying would entail posting only “ten-tenths of the law.” ASTM, 896 F.3d at 452. Finally, the Court notes that the overall impact of the fourth fair use factor is ambiguous. While there is reason to doubt that holding the I-Codes as Adopted were not infringed would seriously harm ICC, the manner in which