observations regarding ICC and its controlled reading rooms suggests the impact of posting the I-Codes as Adopted may not be particularly large, the record does not clearly answer how much harm UpCodes really does when it allows the same codes to be printed, copied and pasted, and downloaded, and whether such use actually affects ICC’s market for its derivative products. The Court recognizes the potential for a dispute regarding the fourth fair use factor, though it is skeptical that the dispute would be material given the combined weight of the other three factors and the many grounds counseling that the I-Codes as Adopted are in the public domain regardless.
How the fourth factor affects the I-Code Redlines is also unclear. In one respect, the I-Code Redlines appear to have been competing substitutes for ICC’s derivative works, as they were only available to paying customers of Historic UpCodes and ICC also utilized its own version of redlining on premiumACCESS.[1] (See Johnson Reply Decl. ¶ 4.) However, there is little clear evidence on whether the I-Code
- ↑ ICC also highlights the potential for UpCodes to serve as a substitute for its works more generally. It notes a number of customer testimonials on UpCodes indicating their satisfaction at having an alternative to bound codebooks and controlled reading rooms that prevent copying and downloading. (ICC Supp. SUMF ¶ 11; Defs. Supp. Resp. ¶ 11.) ICC also notes several statements by Defendants indicating they either view ICC or its online library licensees as competitors, further complicating the Court’s ability to rule on the fourth factor as a matter of law. (See, e.g., Wise Decl. Exs. 18–19.)
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