Page:National Fire Protection Association v. UpCodes (2021).pdf/12

 the harm that results because the secondary use serves as a substitute for the original work.”, 755 F.3d 87, 99 (2d Cir. 2014); , 150 F.3d at 145 (“In considering the fourth factor, our concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps or substitutes for the market of the original work.”).

The court noted that “unlike the other factors, the fourth fair use factor could potentially weigh against Defendants’ copying of the I-Codes as Adopted” because it is fair to say an enacted law identical to an I-Code is an effective substitute for the model code itself. 2020 WL 2750636, at *28. The court stated the Redlines appear to have been competing substitutes for ICC’s derivative works, but there was little clear evidence on whether the Redlines actually affected revenues for the derivative works.

Here, NFPA states “[t]here is no question that if anyone could do what UpCodes is doing, the market for NFPA’s works would be destroyed.” Mot. at 21. But although the codes on UpCodes’ website do seem like they would serve as a substitute for NFPA’s standards, there is not yet any evidence of any effect on the potential market beyond speculation.

, 896 F.3d at 453, and, 2020 WL 2750636, at *28–29, had different procedural postures, as both were decided at the summary judgment stage. But because of the same uncertainties articulated in, 2020 WL 2750636, at *28–29, and balancing all the factors together, the Court cannot say NFPA is likely to prevail on its claim for copyright infringement because of the uncertainties regarding UpCodes’ fair use defense. The Court finds NFPA has not established it is likely to prevail on its claim. A preliminary injunction is therefore inappropriate at this time.