ICC’s authorization. (See ICC SUMF ¶¶ 21–22, 92, 173; Defs. Resp. ¶¶ 21–22, 92, 173.) Defendants claim that their unauthorized copying nevertheless does not constitute infringement based on a number of copyright doctrines discussed at length below.
C. Public Domain
The main dispute in this case is whether the I-Codes as Adopted are in the public domain. ICC maintains that it can enforce its copyrights in the I-Codes to prevent copying of state and local code text that ICC authored, while Defendants argue that state and local adoption of the I-Codes means that the adopted text has become part of the law and can thus be freely copied. Defendants are more likely to be entitled to a declaratory judgment if the I-Codes as Adopted are in the public domain, while ICC’s case for actionable infringement is much stronger if the codes are not in the public domain. No binding precedent or statutes provide a clear answer, and the potentially relevant case law is arguably contradictory. The Court concludes, however, that the case law is ultimately consistent. It compels a holding that the I-Codes as Adopted are in the public domain, because they are in fact
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