ASTM International v. UpCodes — Third Circuit Rules Online Publication of Building Codes Is Likely Fair Use

Background

ASTM International is a nonprofit standards organization that develops and publishes thousands of technical standards used across industries. Many of those standards are incorporated by reference into state and local building codes — meaning compliance with the law requires knowing what those standards say. ASTM sells access to its standards, generating roughly 70% of its revenue from those sales.

UpCodes, a technology company, created a free online platform that publishes building codes and the standards incorporated into them, making them searchable and accessible to contractors, architects, and the public. ASTM sued for copyright infringement, arguing that UpCodes’ wholesale copying of its standards was unauthorized and damaging to its business model. ASTM sought a preliminary injunction to take the standards offline, which the district court denied. ASTM appealed.

The Court’s Holding

Circuit Judge L. Felipe Restrepo, writing for the panel, affirmed the district court’s denial of the preliminary injunction, concluding that UpCodes was likely to succeed on its fair use defense. The court walked through each of the four statutory fair use factors under 17 U.S.C. § 107.

On the first factor — purpose and character of the use — the court found UpCodes’ copying was transformative. While ASTM publishes standards to inform industry of current best practices, UpCodes publishes them to convey what the law actually requires, posting only the historical versions that have been incorporated into local ordinances. The court rejected ASTM’s argument that verbatim copying can never be transformative, aligning with precedent from the D.C., Second, and Fourth Circuits.

On the second factor — nature of the work — the court found it strongly favors fair use. Technical standards sit at the factual end of the copyright spectrum, and their incorporation into binding law moves them even further from copyright’s core protections. The third factor — amount copied — also favored UpCodes, because the building codes incorporate the standards in their entirety, making full reproduction reasonable. The fourth factor — market harm — was equivocal: while free copies could substitute for paid access, nine of the ten standards at issue were outdated versions, and ASTM offered limited evidence about revenue specifically from law-incorporated standards.

Key Takeaways

• The ruling strengthens the principle that laws — including privately authored standards incorporated by reference — should be freely accessible to the public.
• The decision aligns with the D.C. Circuit’s 2023 ruling in a similar ASTM case involving Public.Resource.Org, building a growing consensus across circuits.
• Standards organizations that rely on sales revenue face increasing legal pressure to develop alternative business models for standards that become law.
• The decision is at the preliminary injunction stage — the underlying merits case continues, and the fair use question could still be litigated at trial.

Why It Matters

At its core, this case asks a fundamental question: can the law be copyrighted? When a city adopts a technical standard as part of its building code, compliance becomes mandatory — yet under ASTM’s theory, reading the law requires paying a private organization for access. The Third Circuit’s ruling is a significant win for the public access to law movement and for the thousands of contractors, architects, and homeowners who need to understand the rules that govern construction.

For the technology industry, the decision also reinforces that making information more accessible and searchable can qualify as a transformative use, even when the underlying content is reproduced verbatim. The Electronic Frontier Foundation praised the ruling as one that will expand public access to the laws that bind us. While the case is not final, the appellate ruling makes it substantially harder for ASTM to prevail on the merits.