Page:National Fire Protection Association v. UpCodes (2021).pdf/5

 legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.”

The parties argue about the breadth of this holding, the effect of issues such as whether the code was created as a work-for-hire, and the impact of on other cases such as, 121 F.3d 516, 517 (9th Cir. 1997), , 133 F.3d 1140 (9th Cir. 1998), and , 293 F.3d 791, 800 (5th Cir. 2002). , Mot. at 14 n. 3; Opp’n at 4–10; dkt. 28 at 2–5. The Court needs not reach these arguments because NFPA provided evidence that UpCodes reproduces more than just the portion of the standards that have been adopted into law.

In its opposition, UpCodes states, “with respect to each jurisdiction, UpCodes disseminates only those portions of the publications at issue that were actually adopted as the law. For example, Chicago did not adopt Article 604 of the 2017 National Electrical Code, and UpCodes does not disseminate that unadopted section when it shows the law of Chicago.” Opp’n at 19–20 (citing Reynolds Decl. ¶ 12; dkts. 26-3, 26-30 (Chicago Municipal Code) § 14E-6-604). But NFPA submitted evidence that although the document omits Article 604 when viewed on the website, dkt. 26-3, when the codes under UpCodes’ Chicago heading are saved as a local copy, they contain the entirety of Chapter 6, including Article 604, dkts. 28-5 ¶¶ 3–5, 28-7 (a downloaded copy of the Chicago code with Article 604 incorporated), 28-8 (same for Delaware).

Because Article 604 was explicitly excluded from the Chicago codes, it is not subject to any possible exemption from copyright protection for private material that has been incorporated by reference into a law. NFPA is thus likely to establish the elements for copyright infringement. , No. 17 CIV. 6261 (VM), 2020 WL 2750636, at *18 (S.D.N.Y. May 27, 2020) (denying defendant ICC’s motion for summary judgment because “ICC has still raised genuine factual disputes suggesting that at least some codes posted on Current UpCodes have ‘indiscriminately mingled’