adopted the I-Codes without amendment, which could not be accurately expressed other than through the full model code text that Defendants later posted on Historic UpCodes. ICC disagrees, arguing that even if merger is assessed as an affirmative defense in the context of infringement, a court should consider only the idea and potential forms of expression that existed at the time of the copyrighted work’s initial fixation. ICC thus argues for the idea of a model code, which undoubtedly could have been expressed in many ways when conceived. For example, ICC and the NFPA draft competing fire codes with significantly different provisions. (See Wise Decl. Ex. 71, Dkt. No. 98-7.)
The Second Circuit has not explicitly addressed the dispute raised by the parties regarding this point, adding another ambiguity to the legal analysis. ICC relies on Oracle Am., Inc. v. Google Inc., which held, in the context of software code, that “the district court erred in focusing its merger analysis on the options available to [the defendant] at the time of copying.” 750 F.3d 1339, 1361 (Fed. Cir. 2014). The Federal Circuit based its holding on the notion that “copyrightability and the scope of protectable activity are to be evaluated at the time of creation, not at the time of infringement” and that “[t]he
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