Defendants made government amendments to the I-codes available only to paying users may also cut against the notion that they meant only to express the law.
Because the issue of merger arises primarily as a defense in the context of ICC’s Motion, these ambiguities in the record must be resolved in Defendants’ favor as the non-movants. As noted elsewhere above, the parties have largely treated the forty codes at issue as interchangeable, perhaps because of the various legal ambiguities in this case. They also may not have fully specified the various ways that the I-Codes were displayed on UpCodes. As an example, ICC alleged that Historic UpCodes did not appear to show any states adopting the IZC 2012, IPSDC 2009, and IPSDC 2015. But Defendants replied in their briefs that the cities of Gainesville, Texas and Foristell, Missouri adopted the IPSDC 2009; Cleveland, Texas adopted the IPSDC 2015; and Alton, Texas and Rawlins, Wyoming adopted the IZC 2012. (ICC SUMF ¶ 127; Defs. Resp. ¶ 127.) Similarly, that Defendants redirected users to ICC’s website for the IZC 2015 may suggest that they intended to express only the law on UpCodes, even if their methods of displaying the law were not particularly artful. (See Wise Decl. Ex. 15.) Bearing in mind the ambiguities
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