also challenged the various defenses raised by Defendants, including merger and fair use. (See id. at 16–24.)
- 2. Defendants’ Motion
On May 31, 2019, Defendants filed a cross-motion for partial summary judgment on their counterclaim. (See Defendants’ Motion.) They requested a declaratory judgment that Current UpCodes does not infringe ICC’s copyrights, deferring their claim as to Historic UpCodes for either a subsequent motion or trial. (See “Defendants’ Memo,” Dkt. No. 85-1, at 3 n.1.) Defendants primarily argued that Current UpCodes posts only government-enacted building codes, which constitute the law and thus in the public domain. (See id. at 11–33.) They added that to the extent the codes they post are not in the public domain, such posting is otherwise protected as fair use. (See id. at 33–44.) Defendants lastly raised the defense of collateral estoppel, based on a prior suit about model building codes and the public domain involving ICC’s predecessor, SBCCI. (See id. at 44–49.)
ICC opposed Defendants’ Motion on June 28, 2019. (See “ICC Opposition,” Dkt. No. 90.) ICC argued that state and local adoption of the I-Codes does not prevent ICC from enforcing its copyrights in model code text incorporated by
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