Page:International Code Council v. UpCodes (2020).pdf/95

 that they might help educate members of the public regarding their legal obligations, the redlines are also arguably direct substitutes for ICC’s derivatederivative [sic] works. Similarly, while the third factor need not weigh against Defendants if use of the I-Code Redlines is truly transformative, the significant copying of unadopted model code text tends to cut against a finding of fair use. Finally, the numerous factual disputes regarding how much Defendants’ copying harms ICC’s markets for the I-Codes and derivative works are both genuine and material in this context. While the Court could confidently conclude that copying of the I-Codes as Adopted is protected given the strong implications of public domain law, the same cannot be said of the I-Code Redlines. Again, the parties’ genuine dispute regarding whether copying of the I-Code Redlines was a fair use requires resolution in favor of the non-movant. The Court must consequently deny ICC’s Motion for this reason too.

F. COLLATERAL ESTOPPEL

Defendants finally argue that the doctrine of collateral estoppel should bar ICC’s suit and warrant a declaratory judgment in Defendants’ favor because the Veeck case is dispositive of Defendants’ claim. Because the