Redlines is transformative as a matter of law. After all, the Supreme Court’s rule applies to works authored by judges and legislatures rather than private authors. And the information in the I-Code Redlines may be less probative than legislative history or Lexis annotations, depending on the particular codes and provisions at issue. As ICC points out, knowing that Wyoming did not adopt an appendix on tsunami-generated flood hazards probably does not help Wyoming residents comprehend their legal duties. Finally, that Defendants made the redlines on Historic UpCodes available only to paying customers may 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. See Authors Guild, 804 F.3d at 219. In short, the Court cannot find that posting of the I-Code Redlines constituted a fair use or was not based on the first factor alone.
- 2. Second Factor: Nature of the Work
“The second statutory factor, ‘the nature of the copyrighted work,’ 17 U.S.C. § 107(2), ‘calls for recognition that some works are closer to the core of intended copyright protection than others, with the
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