Page:National Fire Protection Association v. UpCodes (2021).pdf/4

 NFPA contends it is likely to prevail on its claim for copyright infringement because it holds a valid copyright and UpCodes has infringed on its reproduction, derivative work, distribution, and public display rights. Mot. at 9–10. The parties do not dispute that NFPA has a valid copyright in its material and that UpCodes reproduced and disseminated NFPA’s materials. The parties argue, however, about whether UpCodes is publishing law that is in the public domain or protected material, and about several affirmative defenses, including fair use.

The Court need not reach the parties’ various arguments about the importance of authorship and merger, or whether guiding notes are part of the law. UpCodes disseminates parts of the standards that have not been adopted into law, which would support a claim for copyright infringement regardless of whether a private party can have copyright in material that is incorporated by reference into a law. But NFPA has not demonstrated it is likely to succeed on its claim for copyright infringement because it has not demonstrated UpCodes’ reproduction of its standards is not fair use. The Court has insufficient information before it to make that determination at this time. A preliminary injunction is therefore not warranted.

A. “No One Can Own the Law”

UpCodes first argues that, 140 S. Ct. 1498, 1507 (2020) , establishes that statutes and regulations cannot be copyrighted, and the texts at issue here are in the public domain because they are attributable to legislators speaking in their legislative capacity. Opp’n at 4–8. In, the Supreme Court addressed whether there was copyright protection for “original works of authorship” in the annotations contained in Georgia’s official annotated code, which were created by a private entity through a work-for-hire arrangement with the legislature. 140 S. Ct. at 1504. The Court found “[b]ecause Georgia’s annotations are authored by an arm of the