ASTM International v. UpCodes — Third Circuit Holds That Online Publication of Copyrighted Building Standards Incorporated Into Law Is Likely Fair Use

Background

ASTM International is a non-profit organization that develops and publishes technical standards for industries including construction, manufacturing, and engineering. Sales and licensing of these standards generate approximately 70% of ASTM’s total revenue. Governments frequently adopt ASTM standards into law through “incorporation by reference” — referencing the standard by name in a statute or building code without reproducing its text. This saves government resources but creates a tension: people are presumed to know the law, yet the text of these legally binding standards sits behind a paywall.

UpCodes is a for-profit startup that operates a searchable online library of building codes. In April 2024, UpCodes began publishing on its website ten copyrighted ASTM standards related to steel and aluminum used in construction — all of which had been incorporated by reference into the International Building Code (IBC), which Philadelphia and other jurisdictions have adopted as governing law. UpCodes made the full text of these standards freely available, while offering premium tools like bookmarking, annotation, and AI-powered search as paid features.

ASTM sued for copyright infringement and sought a preliminary injunction. The District Court denied the motion, finding that UpCodes was likely to succeed on its fair use defense. ASTM appealed to the Third Circuit.

The Court’s Holding

The Third Circuit unanimously affirmed, holding that three of the four fair use factors favor UpCodes, with the fourth equivocal — and that on balance, UpCodes’ publication of the incorporated standards likely constitutes fair use.

Factor 1 (Purpose and Character): The court found UpCodes’ use transformative despite verbatim copying. The key distinction is purpose: ASTM publishes standards to inform industry professionals of current best practices, while UpCodes publishes them to convey “only what the law is.” The court emphasized that a work “can be transformative in function or purpose without altering or actually adding to the original work.” UpCodes operationalizes this distinction by publishing only the incorporated (often outdated) versions of standards — not the current editions — and presenting them within the jurisdictional context of the building codes that adopt them. The court found that UpCodes’ commercial nature did not outweigh this transformative purpose, since users pay for proprietary tools, not for access to the standards themselves.

Factor 2 (Nature of Work): This factor “strongly favors” UpCodes. Technical standards are factual works that sit “at the factual end of the fact-fiction spectrum.” Once incorporated into law, they “moved even further to the periphery of copyright’s core protection.”

Factor 3 (Amount Copied): Although UpCodes copied the standards in their entirety — including “non-mandatory” appendices and explanatory notes — the court held this was reasonable because the law incorporates the full standard. The court explained that compliance often requires reading both mandatory and non-mandatory sections: for example, one ASTM standard’s mandatory text specifies a tolerance threshold, but the table needed to apply that threshold appears only in a non-mandatory appendix. “A contrary ruling would be blind to the realities of how people interpret and use law.”

Factor 4 (Market Effect): The court found this factor equivocal. While free access to the standards could theoretically reduce ASTM’s sales, the evidence of actual market harm was thin — ASTM presented no evidence that any subscriber canceled their subscription because of UpCodes. The court weighed this against the significant public benefit of enhanced access to law. But it acknowledged that if unfettered copying caused significant harm 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.” The record was insufficient to resolve this tension.

Key Takeaways

• Verbatim copying can be transformative when it serves a fundamentally different purpose — here, disseminating what the law requires rather than what industry best practices are.
• The Third Circuit aligned with the D.C. Circuit’s ASTM II decision (2023) but extended the analysis to a for-profit defendant, holding that commerciality does not defeat fair use where the copied works themselves are provided for free.
• This is a preliminary injunction ruling, not a final merits determination. The district court will still need to resolve important factual questions — particularly the actual extent of market harm to ASTM — at trial.
• The court drew an important limit: the scope of the governmental reference controls what may be copied. Standards merely “mentioned” in a code may not justify full copying; what matters is whether the standard has been given legal effect.

Why It Matters

This ruling has immediate implications for the growing tension between public access to law and the business models of standard-development organizations. Thousands of privately authored technical standards are incorporated into federal, state, and local law — governing everything from fire safety to food processing to electrical wiring. ASTM and similar organizations argue that copyright protection is essential to fund the development of these standards. Advocates for public access counter that people should not have to pay to read the laws that bind them. With the Third Circuit joining the D.C. Circuit in finding fair use, pressure is mounting on Congress or the Copyright Office to address this gap. The decision also has potential ripple effects for AI copyright arguments: as some commentators have noted, if verbatim copying for public-access purposes can be transformative, that reasoning could inform debates about AI training on copyrighted materials — though the court’s opinion is carefully limited to the unique context of law-incorporated standards.