Though the Court holds that Defendants’ accurate posting of the I-Codes as Adopted is protected as a matter of public domain law, the Court would also reach the same result under the rubric of fair use. The analysis suggested by the D.C. Circuit tracks this Court’s public domain analysis relatively closely and is consistent with binding Second Circuit precedent regarding fair use. Indeed, the D.C. Circuit suggested there is “reason to believe ‘as a matter of law’” that copying standards like the I-Codes as Adopted would be fair use when intended to educate the public regarding the law. See id. at 448. In particular, the court observed that “[o]ne way in which the incorporated standards vary is how readily they resemble ordinary, binding law. At one end of this spectrum lie incorporated standards that define one’s legal obligations just as much as, say, a local building code -- except that the specific legal requirements are found outside the two covers of the codebook. … At the other end of the spectrum lie standards that serve as mere references but have no direct legal effect on any private party’s conduct.” Id. at 442–43 (emphasis added). In concurrence, Judge Katsas specifically cited Veeck and BOCA as good law and stated that he joined the D.C. Circuit’s opinion
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