UpCodes Wins Key Fair Use Ruling Over Access to Incorporated Building Standards
The U.S. Court of Appeals for the Third Circuit affirmed the denial of a preliminary injunction against UpCodes, Inc. The court held that UpCodes is likely to succeed on its fair use defense after publishing ASTM building standards incorporated into law.
The decision in American Society for Testing & Materials v. UpCodes, Inc., No. 24-2965, does not end the copyright dispute. It does provide important guidance for standards organizations, regulated companies, publishers, and legal technology platforms that use technical standards incorporated by reference into law.
Background
ASTM International develops and publishes technical standards used in construction, engineering, manufacturing, and other industries. Governments often incorporate those standards into law by reference. Incorporation by reference means a statute or regulation identifies a private standard by name without reproducing the full text.
This practice brings technical expertise into public rules, but it can create access problems. A business may be legally required to follow a standard even when the full text does not appear in the public code.
ASTM sells and licenses standards, including subscription products for standards referenced in building codes. The standards at issue were incorporated into the International Building Code, which Philadelphia and other jurisdictions have adopted.
UpCodes operates an online building-code research platform. In April 2024, UpCodes began publishing certain copyrighted ASTM standards without a license. ASTM sued for copyright infringement and sought a preliminary injunction requiring UpCodes to remove the standards while the case proceeded.
What the Court Decided
The district court denied ASTM’s request for a preliminary injunction. A preliminary injunction is an early court order that can require a party to act, or stop acting, before final judgment. To obtain one, a plaintiff usually must show a likelihood of success on the merits.
The Third Circuit affirmed. It held that UpCodes is likely to succeed on fair use, a doctrine that permits certain uses of copyrighted works without permission after courts weigh statutory factors.
The court also noted that fair use is a mixed question of law and fact. In practical terms, appellate courts may review legal conclusions differently from factual findings.
Affirmed
The Third Circuit affirmed the denial of ASTM’s preliminary injunction. ASTM therefore did not obtain an early order requiring UpCodes to remove the challenged standards.
Not Finally Decided
The ruling concerns likelihood of success at the preliminary injunction stage. It does not hold that every republication of a technical standard is fair use. Future outcomes may turn on the specific standards, how they were incorporated, the publisher’s purpose, and evidence of market harm.
Court’s Reasoning
Fair use turns on four statutory factors: the purpose and character of the use, the nature of the work, the amount used, and the effect on the potential market. The Third Circuit found that three factors favored UpCodes and one was equivocal.
1. UpCodes’ use served a different purpose
The court found UpCodes’ use likely transformative. A use is transformative when it serves a new or different purpose. ASTM develops standards to establish technical requirements and best practices. UpCodes published incorporated standards to help users access legal obligations reflected in building codes.
The court recognized that UpCodes has commercial features, including paid offerings. Even so, it found the public-access purpose significant and described access to the law as a “clear and significant public benefit.”
2. The standards were closer to factual works
Copyright protects original expression, not facts, systems, or legal obligations. The court treated the incorporated standards as largely factual and functional, which favored fair use.
3. Copying the full text was reasonable in context
Copying an entire work usually weighs against fair use. Here, the court viewed full-text copying differently because the standards had been incorporated in full. If the legal obligation is the full standard, less than the full text may not provide meaningful access.
4. Market harm was not clear enough to change the result
ASTM argued that free publication would harm its licensing and subscription market. The court did not reject that concern, but found the market-harm evidence equivocal on the preliminary record.
Practical Implications for Companies
Companies should not treat this decision as blanket permission to repost copyrighted standards. The ruling is fact-specific and preliminary. But it strengthens the argument that access to incorporated legal materials can support fair use when publication is tied closely to helping users understand the law.
Standards organizations should reassess enforcement and licensing strategies when their standards become binding law. Courts may examine whether restricted access creates notice problems for regulated parties and the public.
Businesses that rely on incorporated standards should confirm which version applies, where it has legal force, and whether internal teams have lawful access. They should not assume a private standard is freely reusable simply because a law references it.
Publishers and legal technology platforms should keep the use narrow, accurate, and tied to public access to law. They should also separate free access to incorporated legal materials from paid value-added features.
