American Society for Testing & Materials, d/b/a ASTM International v. Upcodes, Inc.; Garrett Reynolds; Scott Reynolds

U.S. COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 24-2965
AMERICAN SOCIETY FOR TESTING & MATERIALS,
d/b/a ASTM International,
Appellant
v.
UPCODES, INC.; GARRETT REYNOLDS; SCOTT
REYNOLDS
_____________________________
Appeal from the U.S. District Court, E.D. Pa.
Judge Anita B. Brody, No. 2:24-cv-01895
Before: RESTREPO, MCKEE, and SMITH, Circuit Judges
Argued Sep. 17, 2025; Decided Apr. 7, 2026
_____________________________
OPINION OF THE COURT
RESTREPO, Circuit Judge. American Society for
Testing and Materials d/b/a ASTM International (“ASTM”) is
a non-profit organization that publishes technical standards for
a variety of industries. Legislatures and administrative
agencies frequently incorporate ASTM’s standards into
statutes and regulations. UpCodes, Inc. (“UpCodes”) is an
online research platform that offers a searchable database of

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building codes. UpCodes publishes on its website several
copyrighted ASTM standards that are referenced in the
International Building Code, which has been adopted by
Philadelphia and other jurisdictions. ASTM sued UpCodes for
copyright infringement and moved for a preliminary
injunction. The District Court denied the motion, reasoning
that ASTM was unlikely to succeed on the merits because
UpCodes’ copying constitutes fair use. ASTM challenges the
denial and argues that UpCodes directly replicates ASTM’s
standards for a commercial purpose, which cannot constitute
fair use. We agree with the District Court that UpCodes is
likely to succeed on the merits of its fair use defense. Thus, we
will affirm the denial of the preliminary injunction.
I. FACTS & PROCEDURAL HISTORY
A. Factual Background
ASTM is a non-profit organization and a recognized
leader in the standard development industry. It develops and
publishes technical standards that prescribe best practices,
methods, and product specifications for a variety of industries.
Industry professionals—such as manufacturers, tradespeople,
engineers, architects, and construction experts—use these
standards to bolster safety and performance in their work.
ASTM aims to develop technical standards that “positively
impact[] public health and safety, consumer confidence, and
overall quality of life.” JA270. All ASTM standards undergo
multiple rounds of voting and peer review before they are

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officially approved. Standards are reviewed on a five-year
schedule and are either reapproved, revised, or withdrawn.
ASTM funds its operations by selling and licensing its
standards as individual documents or by subscription. It sells
a subscription package titled ASTM Standards in Building
Codes (“SIBC”) that contains over 2,300 construction
standards referenced in building codes, including the standards
at issue in this case. Sales of ASTM’s standards account for
about 70% of its total revenue.
ASTM standards are frequently incorporated by
reference into federal, state, and local law. When a legislature
incorporates a standard by reference, it references the standard
by name in the text of a law but does not reproduce the
standard’s content. Incorporation by reference saves
significant government resources and infuses laws and
regulations with valuable subject-matter expertise. It can also
cause notice and accountability issues. Regulated entities may
face repercussions for violating a technical standard
incorporated by reference, even though the text of the standard
cannot be found in the public code.
Governments can also indirectly incorporate ASTM’s
standards into law. “Indirect” incorporation by reference, or
“third-party reference,” occurs when a law incorporates or
adopts another publication, such as a model building code, that

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in turn incorporates a standard by reference.1 In this scenario,
the law does not directly reference, much less reproduce, the
standard.
UpCodes is a for-profit startup founded in 2016. Its
mission is to “help members of the public access and comply
with the laws that govern their built environment.” JA1667.
UpCodes provides a searchable online library of building
codes, including technical standards that, in UpCodes’ view,
have been incorporated into law.
UpCodes users can search for laws by jurisdiction or for
incorporated standards by original publisher. If users take the
latter approach, they are shown a list of jurisdictions that have
incorporated a given standard; to view the standard, they must
choose a jurisdiction and view that jurisdiction’s incorporated
version of the standard. If a jurisdiction has amended a
technical standard, UpCodes displays the amended version on
its website, not the original version. If a publisher updates a
standard after it has been incorporated into law, UpCodes
displays the historical version that is incorporated into law, not
the updated version. Pursuant to its policy to publish only the
law, UpCodes does not publish unincorporated standards.
UpCodes uses a “freemium” business model. Any user
who makes an account on UpCodes’ website can view and
1 We use the term “incorporated” throughout this opinion to
refer to both direct and indirect incorporation by reference.

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copy building codes and incorporated standards for free.
UpCodes also offers an optional paid subscription that
provides access to bookmarking, annotation, automation, and
artificial intelligence tools.
In April 2024, UpCodes began publishing copyrighted
ASTM standards on its website without securing a license to
do so. UpCodes’ online library includes ten copyrighted
ASTM standards related to steel and aluminum used in
construction (the “Works”). Each of the Works contains
“mandatory” text that outlines technical requirements and
“non-mandatory” or supplemental text, such as explanatory
notes, supplemental materials, appendices, and annexes.
UpCodes publishes the entirety of the Works on its website,
including the mandatory and non-mandatory portions.
The International Building Code (“IBC”)—a
copyrighted work published by the International Code
Council—incorporates by reference all ten Works at issue in
this appeal. IBC Chapter 35 instructs that standards referenced
in the IBC “are part of this code to the extent of the reference
to the standard.” JA1298.
Numerous jurisdictions, including the City of
Philadelphia, have adopted the IBC as governing law. The
Philadelphia Building Code provides that “[t]he ‘2018
International Building Code’ . . . is hereby adopted as the
Philadelphia Building Code.” Phila. Code ch. 4-200 § B-1.1.
Neither the Philadelphia Building Code, nor the IBC, have
amended the Works.

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For nine of the ten Works, ASTM has published
updated versions of the standards at issue since the Works were
incorporated into the 2018 IBC. UpCodes displays the
versions of these nine standards that were incorporated into the
IBC, not the newer, current versions.
B. Procedural History
ASTM sued UpCodes for copyright and trademark
infringement2 in the Eastern District of Pennsylvania. ASTM
moved for a preliminary injunction, asking the District Court
to enjoin UpCodes from posting ASTM’s copyrighted
standards on its website. After limited discovery and a
hearing, the District Court denied the motion. It reasoned that
ASTM could not show a likelihood of success on the merits of
its copyright infringement claim because UpCodes was likely
to succeed in proving the affirmative defense of fair use.
ASTM timely appealed.
II. JURISDICTION
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1338(a). We have jurisdiction under 28 U.S.C.
§ 1292(a)(1).
2 ASTM’s trademark infringement claims are not at issue on
appeal.

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III. STANDARD OF REVIEW
We apply a “tripartite standard of review” to the denial
of a preliminary injunction. Del. Strong Fams. v. Att’y Gen. of
Del., 793 F.3d 304, 308 (3d Cir. 2015) (quoting K.A. ex rel.
Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir.
2013)). We review the District Court’s findings of facts for
clear error, its legal conclusions de novo, and the decision to
grant or deny an injunction for abuse of discretion. Id. “At
this early stage, we review deferentially because the ‘denial of
a preliminary injunction is almost always based on an
abbreviated set of facts, requiring a delicate balancing that is
the responsibility of the district judge.’” Del. State
Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety & Homeland
Sec., 108 F.4th 194, 198 (3d Cir. 2024) (quoting Marxe v.
Jackson, 833 F.2d 1121, 1125 (3d Cir. 1987)).
“Fair use is a mixed question of law and fact.” Harper
& Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560
(1985). Reviewing courts must endeavor to “break such a
question into its separate factual and legal parts, reviewing
each according to the appropriate legal standard.” Google LLC
v. Oracle Am., Inc., 593 U.S. 1, 24 (2021). The ultimate
question of whether copying amounts to fair use is a legal
question to be decided de novo. Id.
IV. ANALYSIS
This appeal concerns only the first prerequisite for a
preliminary injunction: whether the movant can show “a
reasonable probability of eventual success in the litigation.”

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Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017)
(quoting Del. River Port Auth. v. Transamerican Trailer
Transp., Inc., 501 F.2d 917, 919–20 (3d Cir. 1974)). The sole
issue is whether the District Court erred in ruling that ASTM
was not likely to succeed on the merits of its copyright
infringement claim because UpCodes’ copying likely
constitutes fair use.
Article I of the Constitution grants Congress the power
to enact copyright laws “[t]o promote the Progress of Science
and useful Arts.” U.S. Const. art. I, § 8, cl.8. In line with this
goal, the Copyright Act of 1976 entitles copyright owners to
certain exclusive rights related to their works, including the
rights to “reproduce the copyrighted work,” “prepare
derivative works,” and “distribute copies . . . to the public by
sale.” 17 U.S.C. § 106. To establish a prima facie case of
copyright infringement under the Copyright Act, a plaintiff
must demonstrate ownership of a valid copyright and copying
of original elements of the plaintiff’s work. Whelan Assocs.,
Inc. v. Jaslow Dental Lab’y, Inc., 797 F.2d 1222, 1231 (3d Cir.
1986); see In re McGraw-Hill Glob. Educ. Holdings LLC, 909
F.3d 48, 66–67 (3d Cir. 2018) (clarifying the elements of a
prima facie claim for copyright infringement). The District
Court found that ASTM could establish a prima facie case, but
Upcodes was likely to succeed in showing fair use.
The fair use doctrine is “an ‘equitable rule of reason’
that ‘permits courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity
which that law is designed to foster.’” Google, 593 U.S. at 18

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(quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)). As
codified at 17 U.S.C. § 107, “the fair use of a copyrighted work
. . . for purposes such as criticism, comment, news reporting,
teaching . . . , scholarship, or research, is not an infringement
of copyright.” Fair use is an affirmative defense, and the party
asserting it bears the burden of proof. Video Pipeline, Inc. v.
Buena Vista Home Ent., Inc., 342 F.3d 191, 197 (3d Cir. 2003),
abrogated on other grounds by TD Bank N.A. v. Hill, 928 F.3d
259 (3d Cir. 2019).3
The Copyright Act provides four nonexclusive factors
that courts must consider when deciding whether a particular
use is “fair.” 17 U.S.C. § 107; Harper & Row, 471 U.S. at
560–61. These factors are:
(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
3 Burdens at the preliminary injunction stage track the burdens
at trial. Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 429 (2006).

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(4) the effect of the use upon the
potential market for or value of the
copyrighted work.
17 U.S.C. § 107.
All factors “are to be explored, and the results weighed
together, in light of the purposes of copyright.” Murphy v.
Millennium Radio Grp. LLC, 650 F.3d 295, 306 (3d Cir. 2011)
(quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
578 (1994)). Fair use is highly fact dependent, and “its
application may well vary depending upon context.” Google,
593 U.S. at 20. As the Supreme Court has cautioned, “[t]he
task is not to be simplified with bright-line rules.” Campbell,
510 U.S. at 577 (citing Harper & Row, 471 U.S. at 560).
We analyze the four factors in turn and determine that
the District Court did not err in holding that UpCodes is likely
to succeed in showing fair use.4
A. The Purpose and Character of the Use
The first fair use factor considers “the reasons for, and
nature of, the copier’s use of an original work.” Andy Warhol
Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508,
4 Because the issue of fair use is dispositive of this appeal, we
do not address UpCodes’ alternative grounds for affirmance.

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528 (2023); see 17 U.S.C. § 107(1). We ask “whether the new
work merely ‘supersede[s] the objects’ of the original creation
. . . or instead adds something new, with a further purpose or
different character.” Warhol, 598 U.S. at 528 (quoting
Campbell, 510 U.S. at 579); see Video Pipeline, 342 F.3d at
198; Murphy, 650 F.3d at 306. This is an “objective inquiry
into what use was made, i.e., what the user does with the
original work” and is not dependent on subjective intent.
Warhol, 598 U.S. at 545. A use with a further purpose or
different character is described as “transformative.” Id. at 529;
see Google, 593 U.S. at 29. Transformativeness is a “matter of
degree.” Warhol, 598 U.S. at 529. The “degree of difference
must be weighed against other considerations” under the first
factor, like the extent to which the use is commercial or
nonprofit. Id. at 525; see 17 U.S.C. § 107(1) (requiring courts
to consider whether a copy “is of a commercial nature or is for
nonprofit educational purposes”).
In Warhol, the Supreme Court emphasized that the first
factor, with its focus on purpose, necessarily relates to the
“justification” for the use. 598 U.S. at 531. Broadly, a use
with a distinct purpose is “justified” because it is more likely
to further the goals of copyright without lessening the incentive
to create. Id. More narrowly, whether a use has a compelling
“independent justification” for copying—like needing to
mimic a song to create a parody—is relevant under the first
factor, particularly when the original and the copy “share the
same or highly similar purposes.” Id. at 532 (citing Campbell,
510 U.S. at 580).

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1. Transformative Use
The District Court correctly concluded that UpCodes’
use is transformative because it “achieves the distinct objective
of making the law freely accessible and educating the public
on the contents of binding laws.” JA22. To reach this
conclusion, the District Court looked to the recent and factually
similar D.C. Circuit decision in ASTM v. Public.Resource.Org,
Inc., 82 F.4th 1262 (D.C. Cir. 2023) (“ASTM II”).5 There,
ASTM and two other standard development organizations sued
Public.Resource.Org (“Public Resource”), a non-profit group
that disseminates legal materials, for copyright infringement.
82 F.4th at 1266. Public Resource had posted on its website
hundreds of copyrighted technical standards. Id. On cross-
5 In the D.C. Circuit litigation, the district court initially entered
summary judgment in favor of ASTM and issued a permanent
injunction against Public Resource. ASTM v.
Public.Resource.Org, Inc., No. 13-cv-1215, 2017 WL 473822
(D.D.C. Feb. 2, 2017). The D.C. Circuit reversed and
remanded for consideration of the fair use defense on a fuller
factual record. ASTM v. Public.Resource.Org., Inc., 896 F.3d
437 (D.C. Cir. 2018) (“ASTM I”). On remand, the district court
held that posting incorporated standards was fair use and
entered summary judgment in Public Resource’s favor as to
those standards. ASTM v. Public.Resource.Org, Inc., 597 F.
Supp. 3d 213 (D.D.C. 2022). ASTM appealed, resulting in
ASTM II.

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motions for summary judgment, the district court held that it
was fair use for Public Resource to copy 184 standards that
were directly incorporated by reference into law. Id. ASTM
appealed, and the D.C. Circuit affirmed. As to the first factor,
the D.C. Circuit reasoned that Public Resource’s use was
transformative because it “serve[d] a different purpose than the
plaintiffs’ works.” Id. at 1267. Whereas plaintiffs sought “to
advance science and industry by producing standards reflecting
industry or engineering best practices,” Public Resource’s
mission was “very different—to provide the public with a free
and comprehensive repository of the law.” Id. at 1268. Public
Resource’s distinct purpose was evident in how it “publishe[d]
only what the law is,” including incorporated standards that
had been superseded or withdrawn by the standard
development organizations. Id.
Like the District Court, we find the D.C. Circuit’s
reasoning persuasive and apply it here. UpCodes’ use has a
different purpose than ASTM’s. ASTM publishes technical
standards to “positively impact[] public health and safety,
consumer confidence, and overall quality of life.” JA270. Its
rigorous standard development process and five-year review
schedule—as well as the fact that it has updated nine of the ten
Works since they were incorporated into the IBC—
demonstrate its commitment to publishing standards that
reflect current industry consensus and best practices.
UpCodes’ stated mission, on the other hand, is to “help
members of the public access and comply with the laws that
govern their built environment.” JA1667. In line with this

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mission, UpCodes only publishes versions of standards that
have been incorporated into law, even if those versions have
been superseded by newer versions. It displays standards
under the headings of the building codes in which they are
incorporated, asking users to choose a jurisdiction to view a
standard and integrating jurisdiction-specific amendments
when applicable. And, unlike ASTM, UpCodes makes the
standards available for free.
Although UpCodes is not a nonprofit with a purely
educational mission, it mirrors Public Resource in this key
respect: it publishes ASTM’s works to convey “only what the
law is,” not to inform industry professionals of “current best
practices.” ASTM II, 82 F.4th at 1268. This “fundamental”
distinction renders UpCodes’ use transformative. Id. Our
conclusion rests not on UpCodes’ subjective intent, but on an
objective inquiry into what it actually “does with the original
work.” Warhol, 598 U.S. at 545 (emphasis added). UpCodes’
company practices demonstrate that it publishes the Works as
law, not as technical standards.
ASTM’s arguments to the contrary are not convincing.
ASTM asserts that UpCodes’ use cannot be transformative
because it republishes the Works without alteration. This
position overlooks the first factor’s focus on purpose, not
merely expressive similarity. See Warhol, 593 U.S. at 542
(stating that “whether the new use serve[s] a purpose distinct
from the original, or instead supersede[s] its objects. . . . is[]
the ‘central’ question under the first factor” (quoting Campbell,
510 U.S. at 579)); 4 Melville B. Nimmer & David Nimmer,

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Nimmer on Copyright § 13F.05[B][2] (2026). To that end, we
agree with our sister circuits that a secondary work “can be
transformative in function or purpose without altering or
actually adding to the original work.” ASTM II, 82 F.4th at
1268 (quoting ASTM I, 896 F.3d at 450); Swatch Grp. Mgmt.
Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014);
A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639
(4th Cir. 2009).
For similar reasons, the degree of transformation in
UpCodes’ use goes beyond that required to qualify as a
derivative. See Warhol, 598 U.S. at 529. The Copyright Act
defines “derivative work” as “a work based upon one or more
preexisting works, such as a translation, musical arrangement,
dramatization . . . or any other form in which a work may be
recast, transformed, or adapted.” 17 U.S.C. § 101; Warhol, 598
U.S. at 529. While a derivative work may be a “transformed”
version of the original, the degree of difference is not sufficient
to render it “transformative.” See Warhol, 598 U.S. at 529.
ASTM relies on Hachette Book Group, Inc. v. Internet
Archive, which involved a “paradigmatic” example of a
derivative work. 115 F.4th 163, 181 (2d Cir. 2024) (quoting
Authors Guild v. Google, Inc., 804 F.3d 202, 215 (2d Cir.
2015)). In that case, Internet Archive (“IA”) provided free
digital copies of publishers’ copyrighted books and marketed
itself as a free alternative to print books and eBook licenses.
Id. at 175–76. The Second Circuit held that this use was
derivative, not transformative, because “IA’s digital books
serve[d] the same exact purpose as the originals: making

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authors’ works available to read.” Id. at 181. Although
digitizing copies of written works involved a change in
medium, it was not accompanied by a corresponding change in
purpose and character. Id. We cannot say the same here.
Whereas IA’s purpose was limited to the publishers’ original
purpose, UpCodes’ use has a distinct purpose: to disseminate
the law.
To be sure, both ASTM and UpCodes make the Works
available to architecture, engineering, and construction
professionals interested in compliance.6 ASTM sells the SIBC
publication, which includes the copyrighted standards at issue
here. But we are mindful that “‘transformativeness’ is a matter
of degree.” Warhol, 598 U.S. at 529. We have never held that
some overlap in audience or general aim is necessarily fatal to
a fair use defense. Our analysis requires “go[ing] further and
examin[ing] the copying’s more specifically described
‘purpose[s]’ and ‘character.’” Google, 593 U.S. at 30 (quoting
6 ASTM argues that both parties share an identical purpose of
making the Works available to the public on a subscription
basis. This characterization is not supported by the record.
First, ASTM does not make the Works available to the public;
it makes them available to those who pay for them. Second,
UpCodes does not make the Works available on a subscription
basis; it makes the Works available to all users, regardless of
subscription status, and offers a paid subscription for advanced
features.

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17 U.S.C. § 107(1)) (holding that challenged use was
transformative while acknowledging that Google copied
portions of Sun Java’s code “in part for the same reason that
Sun created those portions, namely, to enable programmers to
call up implementing programs that would accomplish
particular tasks”). On this record, UpCodes’ use is
transformative.7
7 As for the SIBC publication, we lack information on this
record to determine whether UpCodes’ use shares the same
purpose as the publication and is likely to “substitute for, or
‘supplan[t]’” it. Warhol, 598 U.S. at 528 (quoting Campbell,
510 U.S. at 579). The parties have not detailed the content and
format of the SIBC publication, including whether it (1)
contains the versions of ASTM standards incorporated into
building codes, even if outdated; and (2) is formatted to situate
the standards within the context of the building codes in which
they are incorporated. Although ASTM describes the SIBC
publication as containing the “Works,” record evidence
describes it as containing “[t]he latest versions of 2,300+
ASTM construction standards,” JA1465 (emphasis added),
which presumably would not include the nine outdated Works
at issue here. Other evidence suggests that some but not all
SIBC subscribers have access to historical standards. See
JA1455 (stating that “online basic users have access only to
active ASTM standards” but “online plus users have access to

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Moreover, this analysis of UpCodes’ purpose reveals
two ways that its use may be “justified.” Warhol, 598 U.S. at
531. First, by having a transformative purpose, UpCodes’ use
has the capacity to further the goals of copyright—including
advancing public knowledge—without diminishing ASTM’s
incentive to create. See id. We return to this question of
diminished incentives when analyzing the fourth factor.
Second, UpCodes has a particularly compelling independent
justification for copying. See id. at 532 (citing Campbell, 510
U.S. at 580–81). It cannot achieve its purpose of disseminating
the law without copying the law itself, which, as discussed in
more detail under the third factor, includes standards
incorporated by reference. These conclusions also counsel in
favor of fair use.
2. Commercial Nature
Another element of the first statutory factor is the
commercial nature of the work. “If a new work is used
commercially rather than for a nonprofit purpose, its use will
less likely qualify as fair.” Video Pipeline, 342 F.3d at 198.
The “crux” of this distinction “is not whether the sole motive
of the use is monetary gain but whether the user stands to profit
from exploitation of the copyrighted material without paying
all available ASTM standards documents, including . . .
historical and withdrawn standards”).

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the customary price.” Harper & Row, 471 U.S. at 562.
Commerciality is only one consideration under the first factor
and does not alone determine whether a use is fair. Campbell,
510 U.S. at 584–85; Video Pipeline, 342 F.3d at 198. While “a
finding that copying was not commercial in nature tips the
scales in favor of fair use[,] . . . the inverse is not necessarily
true.” Google, 593 U.S. at 32. “[M]any common fair uses are
indisputably commercial.” Id.
The District Court considered that UpCodes makes the
Works available for free; receives no “direct monetary profit”
from publishing the Works but may derive “tangential
benefits”; and is a commercial actor rather than a non-profit.
JA21–22. Based on these facts, it construed UpCodes’ use as
“largely noncommercial” and weighed this element in favor of
fair use. Id. We conclude that the commerciality inquiry does
little to help either party.
Contrary to ASTM’s assertion, the District Court did
not clearly err in finding that UpCodes “derives no direct
monetary profit” from publishing the Works. JA22 (emphasis
added). UpCodes does not charge users for access to the
Works. Any internet user who opens an account on UpCodes’
website can access the Works for free. In this way, UpCodes’
use differs from that in Video Pipeline, where we held that the
defendant’s use was commercial because it charged a fee to
stream the plaintiff’s works. 342 F.3d at 198.
Yet unlike Public Resource, the defendant in ASTM II,
UpCodes is a for-profit entity. See ASTM II, 82 F.4th at 1266.

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It derives revenue from its paid subscription tier, which grants
users access to premium features and automation tools.
Although the commerciality inquiry concerns the specific
“use” at issue, see 17 U.S.C. § 107(1), we agree with ASTM
that a party’s for-profit status is relevant to discerning the
commercial or noncommercial nature of the use, see Am.
Geophysical Union v. Texaco, Inc., 60 F.3d 913, 921–22 (2d
Cir. 1994) (considering defendant’s for-profit status as relevant
to the fair use analysis because doing otherwise would be
“overly simplistic”). It is not dispositive, however. See, e.g.,
Bouchat v. Balt. Ravens Ltd. P’ship, 619 F.3d 301, 314 (4th
Cir. 2010) (holding that a for-profit sports team’s use of a
former logo in its corporate headquarters had “no clear-cut
commercial purpose”). Here, the significance of UpCodes’
for-profit status is moderated by the fact that users pay for
access to UpCodes’ proprietary tools and technology, not for
access to the Works.
We also consider that UpCodes may reap “tangential
benefits” from copying that could indirectly bolster the
company’s commercial performance. JA22. Such indirect
commercial advantage is also relevant to assessing
commerciality, but it carries less weight than evidence of direct
profit. See Texaco, 60 F.3d at 921 (distinguishing between “a
direct commercial use” and a “more indirect relation to
commercial activity”); Sony Comput. Ent., Inc. v. Connectix
Corp., 203 F.3d 596, 607 (9th Cir. 2000) (holding that the first
factor favored fair use where the commercial use “was an
intermediate one, and thus was only indirect or derivative”

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(citation modified)); Hachette, 115 F.4th at 185 (declining to
characterize defendant’s use as commercial based only on an
“attenuated” link between copying and commercial profit).
Common sense supports that UpCodes reaps some
commercial benefit from copying, but the manner and extent
of that benefit remain unclear. ASTM argues that UpCodes’
“freemium” business model inherently relies on free access to
the Works to attract customers to its site and grow its paid user
base.8 It also points to an email exchange that shows UpCodes’
interest in a paying customer’s need for certain ASTM
standards. While such evidence suggests that copying may
lead to increased website traffic or improved customer
8 ASTM relies on factual findings from National Fire
Protection Ass’n v. UpCodes, Inc., where the court found that
UpCodes “generates revenue by attracting users to its website,
offering some content for free to funnel prospective customers
to its platform, and monetizing a portion of its free-tier users
by converting them to paying customers.” 753 F. Supp. 3d
933, 961 (C.D. Cal. 2024). However, ASTM provides no
insight into the evidentiary basis for these findings. Further,
that case involved a different plaintiff and set of technical
standards, and it addressed UpCodes’ motion for summary
judgment on the issue of fair use. Id. at 942–44. Therefore,
unlike here, the district court was construing the evidence and
drawing all reasonable inferences in the plaintiff’s favor. Id. at
945.

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satisfaction, which could in turn increase sales, the record is far
from definitive.
Although UpCodes’ use has commercial and
noncommercial elements, it does not amount, at this juncture,
to “exploitation” for commercial profit. Harper & Row, 471
at 562. Therefore, the District Court reached the correct
conclusion under the first factor. Regardless of whether the
commerciality inquiry weighs minimally in favor of or against
fair use, the commercial elements of UpCodes’ use do not
outweigh its transformative nature. The first factor favors
UpCodes.
B. The Nature of the Work
The second fair use factor concerns the “nature of the
copyrighted work.” 17 U.S.C. § 107(2). This factor
“recogni[zes] that some works are closer to the core of intended
copyright protection than others.” Campbell, 510 U.S. at 586.
“Fictional, creative works come closer to this core than do
primarily factual works.” Video Pipeline, 342 F.3d at 200
(citing Harper & Row, 471 U.S. at 563). Thus, fair use is easier
to establish for primarily factual works. See Campbell, 510
U.S. at 586.
The District Court properly concluded that this factor
strongly supports fair use. The Works constitute technical
standards related to steel and construction. As the D.C. Circuit
reasoned, technical standards “fall at the factual end of the fact-
fiction spectrum, which counsels in favor of finding fair use.”

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ASTM II, 82 F.4th at 1268 (quoting ASTM I, 896 F.3d at 451).
Furthermore, it is fair to say that once the Works were
incorporated by reference into law—which occurred before
UpCodes’ copying—they moved even further to the periphery
of copyright’s core protection. ASTM fails to explain why the
fact that the Works are indirectly incorporated by reference
into building codes, as opposed to directly, should change this
outcome.
C. The Amount and Substantiality of the Portion Used
Next, courts consider “the amount and substantiality of
the portion used in relation to the copyrighted work as a
whole.” 17 U.S.C. § 107(3). This factor asks whether the
extent of copying is “reasonable in relation to the purpose of
the copying.” Campbell, 510 U.S. at 586.
We agree with the District Court that this factor also
favors fair use. UpCodes reproduced the entirety of the Works,
which would ordinarily “militat[e] against a finding of fair
use.” Sony Corp. of Am. v. Univ. City Studios, Inc., 464 U.S.
417, 450 (1984). But the third factor relates back to the first
factor—it will “generally weigh in favor of fair use where . . .
the amount of copying was tethered to a valid, and
transformative, purpose.” Google, 593 U.S. at 34. Applying
these principles, the D.C Circuit reasoned in ASTM II that “[i]f
an agency has given legal effect to an entire standard, then its
entire reproduction is reasonable in relation to the purpose of
the copying, which is to provide the public with a free and
comprehensive repository of the law.” 82 F.4th at 1269.

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Similar reasoning applies here. The IBC specifies that
referenced standards are incorporated into the code “to the
extent of the reference.” JA1298. UpCodes argues through
example that the IBC incorporates the Works in their entirety.
It points to IBC § 1810.3.2.3, which provides that “[s]teel pipe
piles shall conform to the material requirements in ASTM
A252.” JA346. As the District Court reasoned, the IBC neither
specifies that only certain provisions of the standard are
incorporated, nor identifies the specific provisions that are
related to compliance. See also ASTM v. Public.Resource.Org,
Inc., 597 F. Supp. 3d at 237. To identify the material
requirements in A252 and how to comply with them, one needs
access to the entire standard. Philadelphia and other
jurisdictions adopt the IBC as governing law, see Phila. Code.
ch. 4-200 § B-1.1, thereby giving legal effect—via indirect
incorporation by reference—to the entirety of A252. To the
extent a similar analysis applies to the rest of the Works (which
ASTM makes little effort to dispute), UpCodes reasonably
copied the entirety of the Works. It cannot fulfill its purpose
of disseminating the law without copying standards that have
been incorporated in full into the law.9
9 We do not suggest that it would be permissible for UpCodes
to copy the entirety of any technical standard “merely
referenced” in the IBC. Br. for Am. Nat’l Standards Inst. et al.
as Amici Curiae Supp. Appellants (“ANSI Br.”) 8, Dkt. No.
41. The scope of the reference controls the extent of

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It makes no difference that UpCodes copied “non-
mandatory” portions of incorporated Works. In arguing that
UpCodes has not justified copying non-mandatory portions,
ASTM relies on a passage from ASTM I stating that the third
factor “would weigh strongly in favor of finding fair use” if
Public Resource limited its copying to material of “legal
import,” as opposed to material that “does not govern any
conduct.” 896 F.3d at 452. But the D.C. Circuit did not hold
that copying the latter type of material was antithetical to fair
use. See ASTM II, 82 F.4th at 1269. In ASTM II, it clarified
that “the most important question is what material counts as
‘law,’” and “because law is interpreted contextually, even
explanatory and background material” in an incorporated
standard “will aid in understanding and interpreting legal
duties.” Id. (citation modified); cf. Georgia v.
Public.Resource.Org, Inc., 590 U.S. 255, 274 (2020)
(“Georgia minimizes the [state code] annotations as non-
binding and non-authoritative, but that description undersells
their practical significance.”).
Standard A252 illustrates this point. The mandatory
portion of the standard provides that “wall thickness shall not
be more than 12.5% under the specified nominal wall
thickness.” JA477. But to actually determine the minimum
permissible wall thickness based on various nominal wall
incorporation into the IBC, and thus the extent of incorporation
into a building code that adopts the IBC.

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thicknesses, one consults a “non-mandatory” table in the
standard’s appendix. JA501. It is reasonable for UpCodes to
copy non-mandatory portions of a standard incorporated in
full, as such portions still have legal effect and may prove
integral to understanding the standard’s material requirements.
A contrary ruling would be blind to the realities of how people
interpret and use law.
D. The Effect on the Market for the Copyrighted Work
The fourth statutory factor examines “the effect of the
use upon the potential market for or value of the copyrighted
work.” 17 U.S.C. § 107(4). This factor “must take [into]
account not only . . . harm to the original but also . . . harm to
the market for derivative works.” Video Pipeline, 342 F.3d at
202 (quoting Campbell, 510 U.S. at 590). Courts must
consider “the extent of market harm caused by the particular
actions of the alleged infringer,” as well as the potential market
ramifications of “unrestricted and widespread conduct of the
sort engaged in by the defendant.” Campbell, 510 U.S. at 590
(citation modified). “But a potential loss of revenue is not the
whole story.” Google, 593 U.S. at 35. When relevant, courts
should also examine “the source of the [economic] loss” and
“the public benefits the copying will likely produce.” Id. The
Supreme Court has cautioned that “[s]ince fair use is an
affirmative defense, its proponent [will] have difficulty
carrying the burden of demonstrating fair use without
favorable evidence about relevant markets.” Campbell, 510
U.S. at 590.

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The District Court viewed the fourth factor as
equivocal. On one hand, it found that UpCodes’ copies are “an
effective substitute” for the Works, and it is “plain to see” how
UpCodes’ copying will affect the market for the Works. JA34–
35 (citation modified). On the other hand, it reasoned that
ASTM may have other incentives to create technical standards
even if some incorporated standards lose copyright protection,
and “the countervailing public benefits of UpCodes’ copying
are substantial.” Id. at 35–36. Thus, “the fourth factor ‘[did]
not significantly tip the balance one way or the other.’” Id. at
37 (quoting ASTM II, 82 F.4th at 1272).
The District Court correctly concluded that the fourth
factor is equivocal, but we reach this outcome for different
reasons. In assessing market harm, the relevant market is that
in which ASTM operates and sells the Works—the market for
technical standards—and the relevant source of the loss is
substitution. See Campbell, 510 U.S. at 591 (describing
“cognizable” market harm as “affect[ing] the market for the
original . . . by acting as a substitute for it”); Hachette, 115
F.4th at 189 (“We ask not whether the second work would
damage the market . . . but whether it usurps the market.”
(citation modified)).
Under this framework, it is significant that UpCodes
makes the entirety of the Works available on its website for
free. As the District Court found, “if the [Works] can be
obtained for free from UpCodes, consumers will be less
incentivized to purchase the [Works] from ASTM for a fee.”
JA34–35. Such loss from substitution is the exact type of loss

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cognizable under the fourth factor. This led the District Court
to conclude that UpCodes’ copies are effective substitutes for
and likely to affect the market for the Works. But contrary to
ASTM’s assertion, the analysis does not end there.10
First, accepting that it is plain to see how UpCodes’
copying will affect the market for the Works, the potential
harm to the broader market for technical standards appears
limited.11 See Google, 593 U.S. at 36 (considering the “likely
10 To the extent ASTM argues that we should presume
significant market harm without further inquiry, we reject that
argument. In Campbell, the Supreme Court clarified that “[n]o
‘presumption’ or inference of market harm . . . is applicable to
a case involving something beyond mere duplication for
commercial purpose.” 510 U.S. at 591. It reasoned that “when
a commercial use amounts to mere duplication of the entirety
of an original, it clearly supersedes the objects.” Id. (citation
modified). “But when, on the contrary, the second use is
transformative, market substitution is at least less certain, and
market harm may not be so readily inferred.” Id. (emphasis
added). We have already determined that UpCodes’ use is
transformative and thus will not presume significant harm to
ASTM’s market for technical standards.
11 Although the District Court did not delve into the record to
examine the extent of market harm, “we may affirm on any

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amount of loss” under the fourth factor); ASTM II, 82 F.4th at
1271 (holding that the fourth factor was equivocal in part
because the record evidence “cast[ed] doubt on the plaintiffs’
claims of significant market injury” (emphasis added)). As to
the amount of substitution, ASTM points to evidence showing
that a modest number of users who accessed the Works on the
UpCodes website were known ASTM subscribers or shared the
same email domain as known subscribers. Such data indicates
that some ASTM subscribers have accessed UpCodes’ copies,
but it says nothing about the number of subscribers who have
subsequently canceled their ASTM subscriptions. As for lost
revenue, ASTM emphasizes that it derives 70% of its revenue
from sales of technical standards, but we have no insight into
what percentage of revenue derives from sales of standards
incorporated into law.
UpCodes identifies evidence that calls into question the
robustness of the market for standards incorporated into law.
If the Works are any indication, many standards incorporated
into law are outdated. Record evidence shows that PDF sales
of the individual Works decreased significantly after the
relevant standards were updated. While we do not discount
that demand may exist for outdated technical standards, it
appears dim in comparison to the demand for current
standards. Without more information about the demand for
ground supported by the record.” Laurel Gardens, LLC v.
Mckenna, 948 F.3d 105, 116 (3d Cir. 2020).

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each category of standards, and the percentage of incorporated
standards within each category, we cannot predict significant
market harm based on UpCodes’ copying, even if it becomes
widespread.12 In other words, because the technical standard
industry outpaces legislators, it is possible that this case
presents an atypical scenario where copies may be effective
substitutes for the Works (as found by the District Court)
without necessarily usurping the relevant market.
Second, it is necessary to consider the likely public
benefits of UpCodes’ copying as part of the fourth factor
analysis in this case. See Google, 593 U.S. at 35–36. We do
not suggest that assessing public benefits is always required
under the fourth factor, even where copying enhances public
access to a copyrighted work. See id. at 36 (“We do not say
that these questions are always relevant to the application of
fair use . . . .”). But it is pertinent in a case implicating public
access to the law, which all citizens are “presumed to know.”
Georgia, 590 U.S. at 265 (citation modified). We assess how
likely public benefits balance against likely economic harm,
paying special attention to implications for copyright’s core
concern with “the creative production of new expression.”
Google, 593 U.S. at 35. In ASTM II, the D.C. Circuit noted the
12 While it may be significant that ASTM generates substantial
subscription revenues from the SIBC publication, this issue
would benefit from additional factual development. See supra
Section IV.A.1.

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“substantial public benefits of free and easy access to the law.”
82 F.4th at 1271. The District Court followed suit, noting that
UpCodes’ copying would mitigate notice and accountability
problems associated with incorporation by reference and
provide “practical value” to journalists, union members, and
legal organizations. JA36.
Enhanced public access to the law is a clear and
significant public benefit. In this context, enhanced access
benefits not only regulated entities that must comply with a
building code, but also building residents protected by the
code, government entities enforcing its requirements, press
members reporting on such enforcement, and members of the
public who wish to debate or change the law. See Br. Reporters
Comm. Freedom Press as Amicus Curiae Supp. Appellees 5–
13, Dkt. No. 64-1; Br. Admin. L. Professors as Amici Curiae
Supp. Appellees 15–19, Dkt. No. 60.13
But an accurate assessment of the potential public
benefits of UpCodes’ copying must account for the other side
13 ASTM reiterates that it will provide a standard for free to
anyone who cannot afford to purchase it. But the process for
requesting a free standard appears opaque, and there is no
evidence in the record that anyone has used it to access the
Works at issue. The mere possibility of obtaining a free
technical standard does not nullify the public benefits
associated with enhanced access to law.

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of the same coin—potential public harm. See Hachette, 115
F.4th at 195 (considering, under the fourth factor, that
disseminating digital books for free would result in “little
motivation to produce new works,” which would “negatively
impact the public”). It is not lost on us that this dispute only
exists because ASTM and other standard development
organizations also serve an important public purpose. They
develop cutting-edge standards that promote safety and
efficacy across industries, and they save the government
substantial resources by providing the technical content for
many laws. See Br. Am. Med. Assoc. & Am. Dental Assoc. as
Amici Curiae Supp. Appellant 5–7, Dkt. No. 35; ANSI Br. 10–
12.
Should unfettered copying cause significant economic
loss to ASTM, it could threaten ASTM’s ability to develop
technical standards, which would undermine copyright’s
“ultimate aim” of promoting creativity for the public good.
Sony Corp., 464 U.S at 432 (quoting Twentieth Century Music
Corp. v. Aiken, 422 U.S. 151, 156 (1975)); see ANSI Br. 13–
15 (describing how loss of revenue could cause standard
development organizations to publish fewer or lower quality
standards). Because we lack sufficient information to assess
the likelihood of significant market harm to ASTM, we also
cannot assess the likelihood of this threat and the weight that
should be afforded to it. The District Court’s tentative finding
that ASTM “may have other incentives to continue developing
technical standards” provides some reason to question the

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vulnerability of ASTM’s standard development business, but it
surely does not settle the issue. JA35 (emphasis added).14
On the current record, the likely market harm from
UpCodes’ copying appears limited. Nonetheless, many
important questions remain unanswered, and we view the
fourth factor as equivocal.
E. Overall Assessment
The District Court properly concluded that UpCodes
has met its burden to show likely success on the merits of its
fair use defense. Three of the four statutory factors weigh in
favor of fair use, and the fourth factor is equivocal. On
balance, the factors favor fair use. The District Court did not
14 The District Court construed its assessment of ASTM’s
incentives to continue developing technical standards as
relevant to whether ASTM will have “more economic power
than is necessary to achieve the incentive to create” and thus
whether enforcing ASTM’s copyright will “interfere with . . .
copyright’s basic creativity objectives.” JA35 (quoting
Google, 593 U.S. at 21, 39). We think the discussion of
ASTM’s incentives is more simply and appropriately situated
within an analysis of the potential public benefit (and harm) of
copying, which is also relevant to whether copying serves the
creativity objectives of copyright. See Google, 593 U.S. at 35
(asking whether public benefits are “related to copyright’s
concern for the creative production of new expression”).

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34
abuse discretion in denying ASTM’s motion for a preliminary
injunction.
* * * * *
For the foregoing reasons, we will AFFIRM the District
Court’s October 2, 2024 Order denying ASTM’s motion for a
preliminary injunction.
Counsel for Appellant
J. Kevin Fee [ARGUED]
Stanley Panikowski
Jane W. Wise
DLA PIPER
Counsel for Amicus Appellant
Linda Steinman
DAVIS WRIGHT TREMAINE
Jack R. Beirig
ARENTFOX SCHIFF
Rachel Miller-Ziegler
MUNGER TOLLES & OLSON
Counsel for Appellee
Joseph R. Palmore [ARGUED]
Joseph C. Gratz
Hannah Jiam
Aditya V. Kamdar
Brian R. Matsui
Joel F. Wacks

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35
MORRISON & FOERSTER
Counsel for Amicus Appellee
Samuel W. Silver
WELSH & RECKER
Adina H. Rosenbaum
PUBLIC CITIZEN LITIGATION GROUP
Paula K. Burke
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

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