Defendants opposed ICC’s Motion on June 28, 2019, raising several defenses to the allegations that their copying constituted actionable infringement. (See “Defendants’ Opposition,” Dkt. No. 92.) Defendants argued that posting government codes that adopt the I-Codes is not infringement because enacted codes are the law, and thus in the public domain. (See id. at 13–27.) They added that posting I-Codes that were also adopted without amendment is protected under the doctrine of merger, because the model code text is identical to the text of the enacted law and thus the only way to accurately express the law. (See id. at 14–15.) Defendants also raised a fair use defense, particularly with respect to the I-Code Redlines. (See id. at 27–29.)
ICC replied in further support of its motion on August 2, 2019, reiterating many of the points raised in the ICC Memo. (See “ICC Reply,” Dkt. No. 98.) In particular, it repeated its position that state and local enactment of the I-Codes into law does not place the I-Codes in the public domain, arguing that a holding to the contrary would present multiple constitutional concerns under the Supremacy Clause and Takings Clause. (See id. at 4–7.) ICC
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