While it would likely be inappropriate for a user to post the model codes without any indication that they have been adopted into law, the Court is not persuaded that it would be improper to identify in such posting both an enacted law and where that law derived from. Whether a state or local jurisdiction has referenced a private work is a matter of fact, and is not equivalent to posting the private work itself. It is admittedly troubling that when Defendants post a state code that adopts an I-Code without amendment, they are effectively signaling to users that the enacted law reproduces the model code text in full. To the extent Defendants have posted model codes as model codes or indiscriminately mingled enacted text with unadopted model text, a reasonable jury might consider whether this practice would support a finding of willful infringement, particularly considering that Historic UpCodes also hid state and local amendments to the I-Codes behind a paywall. But the Court sees no basis for a holding that a member of the public cannot post enacted laws and state the simple fact that those laws are derived from the I-Codes.[1]
- ↑ In a related vein, ICC notes that a number of codes on UpCodes are identified as being adopted (without amendment) only by the town of South Holland, Illinois. (See ICC SUMF ¶ 129; Wise Decl. Ex. 58.) This observation does not change the Court’s analysis, however. The town of South Holland comprises a government no less than the towns of Anna and
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