Page:National Fire Protection Association v. UpCodes (2021).pdf/8

 the law for purposes of facilitating public access could constitute transformative use.” 896 F.3d at 450.

Guided by the D.C. Circuit’s reasoning, the court found:

"The underlying I-Codes drafted by ICC primarily serve the purpose of model codes, providing recommendations on the standards that governments should adopt to improve and safeguard their built environments. By contrast, the I-Codes as Adopted are actual regulations binding the public and governing its conduct. Because Current UpCodes provides the I-Codes as Adopted to the general public for free, it clearly does so with a purpose different from that which ICC has when it creates and distributes the model I-Codes."

, 2020 WL 2750636, at *25. The Court finds the same reasoning applies here, and therefore that UpCodes reproduced the portion of the code that is law with a transformative purpose.

As to the I-Code Redlines, however, which were explanatory and did not outline clear legal obligations, the court could not say the purpose of publishing them was transformative. It found that although UpCodes argued the Redlines helped the members better understand their legal obligations (much like the informational notes and permissive rules at issue here), the information would be less probative than something like legislative history because it was authored by private authors. Moreover, that the Redlines were available only to paying customers “may [have] partially offset any transformative nature of the use, though Supreme Court precedent makes clear that the commercial quality of a use alone should not outweigh convincing transformative qualities.”

The Court finds the same reasoning applies here. The informational notes and permissive rules at issue here are also less persuasive than legislative history or similar resources as they were authored by a private entity. Unlike in, the informational notes and permissive rules at issue are available on the free version of