ASTM v. UpCodes — Third Circuit Holds That Republishing Copyrighted Building Codes Incorporated into Law Is Fair Use

Background

ASTM International is a nonprofit organization that develops and publishes technical standards for industries like construction, engineering, and manufacturing. These standards are frequently “incorporated by reference” into federal, state, and local law — meaning a statute or building code refers to them by name without reproducing the actual text. ASTM funds about 70% of its operations by selling and licensing these standards.

UpCodes is a for-profit startup founded in 2016 that operates a searchable online database of building codes. In April 2024, UpCodes began publishing ten copyrighted ASTM standards on its website without a license. These standards had been incorporated by reference into the International Building Code (IBC), which Philadelphia and other jurisdictions have adopted as binding law. UpCodes made them available for free, publishing only the versions incorporated into law — not the newer, updated editions ASTM has since released.

ASTM sued for copyright infringement and sought a preliminary injunction to force UpCodes to take the standards down. The district court denied the injunction, finding UpCodes was likely to succeed on a fair use defense. ASTM appealed to the Third Circuit.

The Court’s Holding

The Third Circuit affirmed the denial of the preliminary injunction, agreeing that UpCodes’ verbatim republication of the copyrighted standards likely constitutes fair use. The court analyzed all four statutory fair use factors and found three in UpCodes’ favor, with the fourth (market effect) deemed equivocal.

On the critical first factor — purpose and character of the use — the court held that UpCodes’ copying is transformative, even though the standards are reproduced word-for-word. The key distinction: ASTM publishes standards to advance industry best practices, while UpCodes publishes them to give the public free access to the law. The court followed the D.C. Circuit’s reasoning in ASTM v. Public.Resource.Org (2023), holding that a work can be “transformative in function or purpose without altering or actually adding to the original work.” The court also found the standards are factual works at the periphery of copyright’s core protection, and that copying the entirety of each standard was reasonable because entire standards had been given the force of law.

On market harm, the court acknowledged that free access on UpCodes could substitute for ASTM’s paid products, but found the broader market impact appears limited — particularly because nine of the ten standards at issue are outdated versions whose individual sales had already declined. The court also weighed the significant public benefit of free access to the law against any economic harm. Ultimately, it concluded the record was too thin to show significant market injury.

Key Takeaways

• Republishing copyrighted standards that have become law can be fair use. The Third Circuit joins the D.C. Circuit in holding that providing public access to copyrighted materials incorporated into binding law serves a distinct, transformative purpose — even when the text is copied verbatim.
• A for-profit company can still claim fair use. UpCodes is a venture-backed startup, not a nonprofit. The court found that its commercial status does not override the transformative nature of its use, especially since it offers the standards for free and charges only for premium tools.
• “Transformative” does not require altering the work. The court emphasized that the fair use inquiry focuses on purpose, not on whether the copier changed the text. Making standards available as law — rather than as industry guidance — is a different purpose.
• The case is not over. This ruling only addresses the preliminary injunction. The court flagged several unresolved factual questions — especially around market harm — that will matter at summary judgment or trial.

Why It Matters

If you build products that reference, display, or integrate regulatory content — building codes, safety standards, environmental regulations — this decision directly affects your legal risk. The Third Circuit’s ruling signals growing judicial consensus that once a standard becomes law, the public has a strong fair use right to access it, even if the original publisher holds a copyright. For startups in the regulatory technology (“regtech”) space, this is a significant green light, though not an unconditional one.

But the court was careful to note limits. The ruling applies to standards actually incorporated into binding law, not merely referenced. And the market-harm question remains open. Companies building on incorporated standards should track how this case develops on remand — a finding of significant market harm could shift the analysis. For now, though, the fair use defense for republishing the law looks strong in two federal circuits.