closely resemble the “building blocks of understanding” that merit application of the doctrine.[1]
The Court’s legal analysis largely tracks Defendants’ position, and ICC’s Motion must be denied on this score for reasons explained further below. But the Court notes here that Defendants’ merger defense is not necessarily altogether meritorious on the facts of this case, either. The current record is ambiguous as to whether Defendants were expressing the idea of enacted laws, rather than the model codes as such. There are some pages on Historic UpCodes where Defendants appear to have posted model building codes without mentioning adopting jurisdictions. (See Wise Decl. Ex. 15.) On still other pages, the model code is accompanied by a section listing states that adopted the model code, but it is unclear whether those states adopted the code without amendment (such that the model code was the only way to express their laws, even if not explicitly identified as such) or whether those states amended the model codes (such that the model code text was not the only way to express those laws). (See id.) That
- ↑ The Court notes that because Current UpCodes also shows model code headings struck-through in red when displaying enacted codes that amend the model codes, Defendants do not exactly post “the law” in this instance either. (See, e.g., Gratz Opp. Decl. Ex. 5). However, the Court would similarly hold that this degree of copying is de minimis, bearing in mind the headings’ minimal contribution to the overall model codes and the many considerations listed in Section II.C.
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