remains ambiguous whether UpCodes posts only the law. As ICC states in its briefs, the current record provides the Court no way to verify the full contents of Current UpCodes, which is continually being updated with potentially erroneous codes in any event. Unless the parties can establish a static and limited version of Current UpCodes for future consideration, much as they already have for Historic UpCodes, it is unclear how Defendants can demonstrate with sufficient clarity that what they actually post embodies only the law. Resolving all factual ambiguities in favor of the non-movant, as the Court must in this procedural posture, it is clear that Defendants’ Motion mast be denied at this time.[1]
D. Merger
Though the I-Codes as Adopted are in the public domain, that fact does not end the inquiry in this case. ICC claims that Historic UpCodes displayed the I-Codes as
- ↑ The Court also rejects Defendants’ argument that the PRO decision requires finding that the I-Code Redlines are in the public domain because they “reflect[] the work of lawmakers just as much as the enacted text of the law.” (Defendants’ Letter at 3.) Even so, the redlines are not “the law.” While the Government Edicts doctrine does expand the public domain beyond the law itself, it specifically effects this expansion through an author-focused framing that does not directly apply to the I-Code Redlines. While no one can own the law, the Court is not persuaded that the PRO Court intended its reasoning regarding legislative history to be extended to privately-created redlines showing text that is not the law. See PRO, 140 S.Ct. at 1512–13. Rather than imprudently hold to the contrary, the Court concludes that Defendants’ copying of the I-Code Redlines must be assessed as a matter of fair use.
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