material facts with respect to the I-Code Redlines, the Court must deny ICC’s Motion on this ground as well.[1]
- 1. First Factor: Purpose and Use
The first fair use factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). The “mere fact of a commercial motivation rarely pushes the first factor determination against fair use,” Capital Records, LLC v. ReDigi Inc., 910 F.3d 649, 661 (2d Cir. 2018), as even the illustrative uses in the statutory preamble are “generally conducted for profit.” Campbell, 510 U.S. at 584. Rather than turning on commerciality, “this factor favors secondary uses that are transformative, meaning that the use ‘adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]’ rather than merely superseding the original work.” ReDigi, 910 F.3d at 660 (quoting Campbell, 510 U.S. at 579); see also Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014)
- ↑ To avoid confusion, the Court notes that it does not understand the I-Codes as Adopted to include Defendants’ copying on the premium portion of Historic UpCodes, even if Defendants might argue such copying was of “the law.” Because those instances of copying clearly included portions of unadopted model code text in a redline format, the Court treats them as instances of the I-Code Redlines.
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