Page:National Fire Protection Association v. UpCodes (2021).pdf/6

 enacted text with unadopted model text. For example, until the ICC Opposition was filed, Current UpCodes displayed Appendices A and H to the IFC 2015 as part of the Wyoming Fire Code even though Wyoming adopted neither.”). As discussed below, however, NFPA has not demonstrated it is likely to succeed on this claim because there are outstanding questions about whether UpCodes’ reproduction was fair use.

B. Fair Use

UpCodes asserts that, to the extent any of the material it reproduced is not “the law,” reproducing it in its entirety is fair use. Opp’n at 14. The fair use defense provides that “the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. When considering whether a particular use is fair, courts must consider the following factors: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

“The factors enumerated in the section are not meant to be exclusive: ‘[S]ince the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.’”, 471 U.S. 539, 560 (1985) (alteration in original) (quoting H.R. Rep. No. 94-1476, at 65 (1976), 1976 U.S.C.C.A.N. 5659, 5678).