pervading the record, the Court declines to conclude at this time that Defendants were clearly not expressing the idea of enacted laws. Accordingly, ICC’s Motion must be denied as to the issue of merger.
E. Fair Use
Defendants further oppose ICC’s Motion by arguing that their copying of the I-Code Redlines was a fair use, as was copying of the I-Codes as Adopted (if not already in the public domain). The Copyright Act provides that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
| (1) | the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; | |
| (2) | the nature of the copyrighted work; | |
| (3) | the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and | |
| (4) | the effect of the use upon the potential market for or value of the copyrighted work.” |
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