Page:International Code Council v. UpCodes (2020).pdf/94

 Defendants posted the I-Codes as Adopted might effectively allow for substitution of the I-Codes.

Even so, the Court concludes that accurate copying of the I-Codes as Adopted would be a fair use as a matter of law in this context. No one factor is dispositive of the fair use inquiry, and the ultimate inquiry remains whether “promot[ing] the Progress of Science and useful Arts … would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141 (internal quotation marks and citation omitted). Given the clear weight of the first three factors and the numerous considerations detailed above in, it is clear that the potential harms to ICC’s markets for its works cannot outweigh the benefits and necessity of enabling unfettered access to enacted laws. These considerations necessitate a finding of fair use in the limited context of accurate copying of the I-Codes as Adopted.

However, the Court cannot so conclude with regard to the I-Code Redlines. While the second factor still favors a finding of fair use given the redlines’ predominantly factual quality, none of the other factors clearly favors either ICC or Defendants. Whether the I-Code Redlines are transformative is debatable; while there is an argument