Third Circuit: Publishing Standards as “the Law” (Including Non‑Mandatory Context) Is Transformative Fair Use Despite a For‑Profit Platform

I. Introduction

American Society for Testing and Materials d/b/a ASTM International (“ASTM”) is a nonprofit standard-development organization that sells and licenses technical standards, many of which are incorporated by reference into statutes and regulations. UpCodes, Inc. (“UpCodes”) is a for-profit online research platform offering a searchable database of building codes. In April 2024, UpCodes began publishing on its website ten copyrighted ASTM construction standards (the “Works”) that are referenced by the International Building Code (“IBC”), which has been adopted by Philadelphia and other jurisdictions.

ASTM sued for copyright infringement and sought a preliminary injunction to stop UpCodes from posting the Works. The U.S. District Court for the Eastern District of Pennsylvania denied relief, concluding ASTM was unlikely to succeed on the merits because UpCodes was likely to establish fair use. On appeal, the Third Circuit affirmed, holding that UpCodes is likely to succeed on its fair use defense at this stage.

Key Issues

  • Whether posting copyrighted technical standards online—when they have been incorporated (indirectly) into binding building law—can qualify as fair use.
  • Whether UpCodes’ for-profit status and “freemium” business model defeats fair use.
  • Whether copying the Works in full, including “non-mandatory” explanatory materials, is reasonable.
  • How to evaluate market harm where the copied standards are incorporated into law and may be outdated relative to current industry versions.

II. Summary of the Opinion

The Third Circuit held that ASTM failed to show a likelihood of success on the merits for purposes of a preliminary injunction because UpCodes is likely to prove fair use under 17 U.S.C. § 107. The court found:

  • Factor 1 (purpose/character): UpCodes’ use is transformative because it publishes the Works to provide access to “what the law is,” not to disseminate current best practices as technical standards.
  • Factor 2 (nature of the work): Technical standards sit on the factual end of the spectrum, and incorporation into law pushes them further from copyright’s core—favoring fair use.
  • Factor 3 (amount used): Copying the Works in full can be reasonable where the law gives legal effect to the standard in full; “non-mandatory” materials may aid interpretation and compliance.
  • Factor 4 (market effect): The factor is equivocal on the present record—there is plausible substitution harm, but limited evidence of the magnitude and broader market impact, alongside substantial public benefits of access to the law.

Balancing the factors, the court affirmed denial of the preliminary injunction.

III. Analysis

A. Precedents Cited

1. Fair use as an “equitable rule of reason” and the four-factor framework

  • Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)
    Cited for (i) fair use as a mixed question of law and fact, and (ii) commercial “exploitation” concepts under factor one. The Third Circuit used Harper & Row’s structure while emphasizing, consistent with modern Supreme Court guidance, that commerciality is not dispositive.
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
    Central to the court’s analysis of transformativeness, reasonableness of the amount taken, and market harm (including the caution against bright-line rules and the need to ask whether the secondary use “supersede[s]” the original’s purpose). Campbell also supplied the court’s approach to factor four: substitution, likely market ramifications of widespread copying, and when market harm may (or may not) be inferred.
  • Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021)
    Used repeatedly to underscore (i) de novo review of the ultimate fair use question, (ii) that many fair uses are commercial, (iii) that factor three can favor fair use where copying is “tethered” to a transformative purpose, and (iv) that factor four may include considering the “source” of economic loss and the public benefits of the copying—particularly when those benefits align with copyright’s objectives.
  • Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023)
    Provided the opinion’s modern articulation of factor one: an objective inquiry into “what the user does with the original work,” the centrality of purpose, and the notion of an “independent justification” to copy when the uses are similar. The Third Circuit treated Warhol as confirming that transformation can be purpose-based (not necessarily alteration-based), but also as a reminder to examine whether the secondary use substitutes for the original.

2. Incorporated standards and “publishing the law” as transformative

  • ASTM v. Public.Resource.Org, Inc., 82 F.4th 1262 (D.C. Cir. 2023) ("ASTM II")
    The most influential comparator. Like Public Resource, UpCodes published standards in the service of providing free access to law. The Third Circuit found ASTM II’s reasoning “persuasive” and effectively adopted its core move: distinguishing between a standards body’s purpose (advancing industry best practices) and an access provider’s purpose (disseminating the law). ASTM II also informed the Third Circuit’s view that explanatory/background material within incorporated standards can be important to understanding legal duties, supporting UpCodes’ inclusion of “non-mandatory” content.
  • ASTM v. Public.Resource.Org., Inc., 896 F.3d 437 (D.C. Cir. 2018) ("ASTM I")
    Cited for the proposition that a work can be transformative in function or purpose without altering the original. ASTM I also contained language about limiting copying to material of “legal import,” which ASTM invoked; the Third Circuit read later D.C. Circuit guidance (ASTM II) as softening any suggestion that copying “non-mandatory” portions defeats fair use where context aids interpretation.
  • ASTM v. Public.Resource.Org, Inc., 597 F. Supp. 3d 213 (D.D.C. 2022)
    Referenced to support the practical point that when a code incorporates a standard without pinpointing excerpts, a user needs access to the full text to determine what the law requires.

3. “No change” copies, derivative works, and digitization analogies

  • Hachette Book Group, Inc. v. Internet Archive, 115 F.4th 163 (2d Cir. 2024)
    ASTM relied on Hachette to argue that republication without alteration is not transformative. The Third Circuit distinguished it: Internet Archive’s digital books served “the same exact purpose as the originals: making authors’ works available to read,” whereas UpCodes’ purpose is to publish binding law as law. Hachette also informed the court’s caution about public harms from undermining incentives—an issue the court found difficult to quantify on the present record.
  • Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)
    Cited within the Hachette discussion for framing what constitutes a “paradigmatic” derivative-use scenario and for the distinction between transformation and mere format-shifting for the same purpose.

4. Technical/factual works and the core of copyright

  • Video Pipeline, Inc. v. Buena Vista Home Ent., Inc., 342 F.3d 191 (3d Cir. 2003)
    Cited for Third Circuit fair use principles (commerciality, factual vs. creative nature, market harm). The panel used it as a familiar internal baseline while noting later Supreme Court refinements.
  • Sony Corp. of Am. v. Univ. City Studios, Inc., 464 U.S. 417 (1984)
    Used for the general proposition that copying the entirety of a work usually weighs against fair use, but the panel then applied Google/Campbell to explain why full copying can be reasonable when necessary to the transformative purpose (here, accurate dissemination of legal requirements).
  • Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)
    Cited (via Sony) for copyright’s “ultimate aim” of promoting public benefit through creative production—relevant to the court’s attention to both the public value of access to law and the societal value of standards development.

5. “Law” as something the public must be able to know

  • Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020)
    Used to emphasize the practical significance of access to legal materials and the notion that citizens are “presumed to know” the law. While Georgia is not a fair use case, it supported the court’s sensitivity to notice, accountability, and the real-world need for contextual legal materials (including explanatory content).

6. Commerciality nuance and indirect-benefit cases

  • Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994)
    Cited for the idea that for-profit status can be relevant without being dispositive, and for distinguishing direct from indirect commercial benefits in the commerciality analysis.
  • Sony Comput. Ent., Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000)
    Cited for recognizing that a commercial actor’s use can be indirect/intermediate in a way that diminishes the weight of commerciality under factor one.
  • Bouchat v. Balt. Ravens Ltd. P'ship, 619 F.3d 301 (4th Cir. 2010)
    Cited for the proposition that even a for-profit entity’s use may lack a clear-cut commercial purpose in the relevant sense.

7. Preliminary injunction and appellate review standards

  • Del. Strong Fams. v. Att'y Gen. of Del., 793 F.3d 304 (3d Cir. 2015) and K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99 (3d Cir. 2013)
    Cited for the “tripartite” standard of review (clear error for facts, de novo for legal conclusions, abuse of discretion for the ultimate injunction decision).
  • Del. State Sportsmen's Ass'n, Inc. v. Del. Dep't of Safety & Homeland Sec., 108 F.4th 194 (3d Cir. 2024) and Marxe v. Jackson, 833 F.2d 1121 (3d Cir. 1987)
    Reinforced the appellate court’s deference at the preliminary injunction stage due to an abbreviated record and the district court’s balancing role.
  • Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017) and Del. River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917 (3d Cir. 1974)
    Framed the dispositive preliminary injunction inquiry here: likelihood of success on the merits.
  • Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)
    Cited for the principle that burdens at the preliminary injunction stage track burdens at trial (important because fair use is an affirmative defense borne by UpCodes).

B. Legal Reasoning

1. The court’s core move: “publishing standards as law” is a distinct purpose

The Third Circuit treated purpose as the organizing concept. ASTM creates and sells standards as evolving industry consensus and best practices. UpCodes, by contrast, publishes the versions incorporated into law (including older versions) and situates them within jurisdictional code frameworks. Those features—historical versioning tied to enactment, integration into jurisdictional codes, and free public access—were treated as objective indicia that UpCodes is not competing to provide “best practice” standards, but to provide “what the law is.”

This purpose difference did the heavy doctrinal work under factor one. Importantly, the panel held that transformation can be functional/purpose-based even where the text is reproduced without alteration.

2. Commerciality did not override the transformative purpose

The court acknowledged UpCodes’ for-profit status and the possibility of “tangential benefits” from free content (e.g., traffic and subscription conversions). But because users did not pay to access the Works themselves (the paid tier covered tools), the court declined to treat the use as straightforward commercial exploitation. As framed, commerciality was not decisive and did not negate the transformative purpose.

3. The “nature” factor: technical standards are factual and further from the core once incorporated

The panel characterized the Works as technical, factual materials. It then went further: incorporation (even indirect) into binding law moved the Works “even further to the periphery of copyright’s core protection.” The court rejected any meaningful distinction, at least for this factor, between direct incorporation and “third-party reference” via adoption of the IBC.

4. Full copying—including “non-mandatory” text—was reasonable because context can be legally operative

The court accepted that copying an entire work ordinarily weighs against fair use, but held that the extent of copying must be assessed relative to purpose. Because the IBC incorporates the Works “to the extent of the reference,” and the references did not carve out specific provisions, full reproduction was treated as necessary for the access-to-law function.

Critically, the opinion also validated copying “non-mandatory” explanatory material when the standard is incorporated in full. The court emphasized contextual interpretation: explanatory notes, tables, appendices, and similar materials can be integral to understanding and applying legal duties. The A252 example (mandatory wall-thickness rule plus a “non-mandatory” appendix table needed to operationalize minimum thickness) illustrated why a formal “mandatory/non-mandatory” label does not reliably map onto practical legal meaning.

5. The market-harm factor: substitution concerns exist, but the record did not show large-scale usurpation

The court treated the relevant market as the market for ASTM’s technical standards, with substitution as the relevant harm mechanism. It recognized the intuitive substitution risk from free online availability. But it also highlighted evidentiary gaps: user-access data did not establish cancellations or quantify lost revenue attributable to UpCodes; the record did not identify what share of ASTM’s revenue comes from incorporated standards; and evidence suggested that demand for older versions drops after standards are updated.

The court also integrated a public-benefit lens (per Google) because the copying implicated access to binding law. It simultaneously noted a potential countervailing public harm: if broad copying materially undermines standard-development revenues, fewer or lower-quality standards could ultimately injure public safety and innovation. Lacking enough evidence to quantify either scenario’s likelihood and magnitude, the court deemed factor four equivocal.

C. Impact

1. A Third Circuit rule aligning with ASTM II for incorporated standards

The opinion strengthens a developing appellate consensus—anchored by ASTM v. Public.Resource.Org, Inc., 82 F.4th 1262 (D.C. Cir. 2023) ("ASTM II")—that reproducing incorporated standards to provide public access to law can be transformative fair use. By embracing ASTM II’s purpose-based distinction, the Third Circuit effectively signals that access-to-law platforms, even if commercial, may qualify for fair use when they:

  • publish only the versions actually enacted/incorporated (including historical versions);
  • present standards in jurisdictional legal context; and
  • provide free access to the incorporated text itself (even if monetizing ancillary tools).

2. Practical consequences for “non-mandatory” components

The court’s endorsement of copying “non-mandatory” materials (where the standard is incorporated in full) is likely to matter in future litigation. Many standards are drafted so that appendices, tables, commentary, and notes supply operational meaning. The decision reduces incentives for rightsholders to recharacterize key interpretive aids as “non-mandatory” to narrow fair use.

3. Litigation incentives: the fourth factor will turn on market evidence

The panel’s factor-four discussion makes future cases evidence-driven. Parties contesting fair use will likely focus on:

  • quantifying substitution (cancellations, lost sales, elasticity);
  • segregating revenues (incorporated vs. non-incorporated; current vs. historical versions);
  • demonstrating how free access affects the incentive and capacity to produce standards.

4. Policy pressure: access-to-law versus standards funding

The court’s framing highlights a structural tension: incorporation by reference saves government resources but can impair public notice when the incorporated text is paywalled. This decision may intensify calls for legislative or administrative solutions (e.g., government-hosted access, licensing regimes, or procurement funding) that preserve both public access and standards-development incentives.

IV. Complex Concepts Simplified

  • Incorporation by reference: A law makes a private document legally binding by referring to it (e.g., “must comply with ASTM A252”) without printing it in the statute or code.
  • Indirect incorporation (“third-party reference”): A jurisdiction adopts a model code (like the IBC), and that model code references standards. The jurisdiction’s adoption can make those referenced standards legally operative even though the jurisdiction did not cite them directly.
  • Transformative use: A use can be “transformative” because it serves a different purpose, even if the user copies the work verbatim (here, publishing as “the law” rather than as best-practices guidance).
  • Derivative work vs. transformative fair use: A derivative work typically re-presents the original for the same basic purpose (e.g., a digitized copy to read). Transformative fair use changes the purpose/character (e.g., republishing for legal notice and navigation).
  • Preliminary injunction: An early, temporary court order. To get it, the movant must show (among other things) a likelihood of success on the merits. Here, ASTM lost because it likely could not overcome UpCodes’ fair use defense at this stage.

V. Conclusion

The Third Circuit’s decision establishes, at least for preliminary-injunction posture, a clear doctrinal path: when a platform publishes standards as enacted law—including historical versions and contextual “non-mandatory” materials needed to understand legal duties—its use can be transformative fair use even if the platform is for-profit and monetizes ancillary tools. The ruling aligns the Third Circuit with the D.C. Circuit’s approach in ASTM v. Public.Resource.Org, Inc., 82 F.4th 1262 (D.C. Cir. 2023) ("ASTM II") and signals that future disputes will likely hinge less on formal labels (“mandatory” vs. “non-mandatory”) and more on (i) how incorporation operates in practice and (ii) concrete evidence of market usurpation and incentives harm.