IP Law Daily, COPYRIGHT—3rd Cir.: Online building codes publisher wins, preliminary injunction properly denied in technical standards dispute, (Apr 8, 2026)

By Brian Craig, J.D.

Online research platform UpCodes met its burden to show likely success on the merits of its fair use defense with three of the four factors weighing in favor of fair use.

In a copyright infringement action over technical standards in building codes published by the online research platform UpCodes, Inc., the U.S. Court of Appeals for the Third Circuit affirmed the decision to deny a motion for a preliminary injunction sought by the American Society for Testing and Materials (ASTM). The Third Circuit held that the online research platform UpCodes, a for-profit entity, met its burden to show likely success on the merits of its fair use defense with three of the four factors weighing in favor of fair use. The Third Circuit agreed with the district court in Philadelphia that the nature of the work factor strongly favored fair use because once the technical standards were incorporated by reference into law, the standards moved even further to the periphery of copyright’s core protection, despite the publisher being a for-profit company (American Society For Testing & Materials v. UpCodes, Inc., No. 24-2965 (3d Cir. Apr. 7, 2026)).

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 building codes. UpCodes publishes on its website several copyrighted ASTM standards that are referenced in the International Building Code, which has been adopted by many jurisdictions. UpCodes’ online library includes ten copyrighted ASTM standards related to steel and aluminum used in construction. ASTM sued UpCodes for copyright infringement in the federal district court in Philadelphia related to the use of the standards and moved for a preliminary injunction. In addition to the copyright infringement claim, the complaint also asserted violations of the Digital Millennium Copyright Act (DMCA) as well as trademark infringement, unfair competition, and false designation of origin. In October 2024, the district court denied the motion for a preliminary injunction, concluding that the online research platform met its burden to show likely success on the merits of its fair use defense. ASTM appealed to the Third Circuit, which analyzed the four fair use defense factors.

Purpose of the use. In analyzing fair use, the appeals court first concluded that the purpose and character of the use factor weighed in favor of fair use. UpCodes’ stated mission is to help members of the public access and comply with the laws that govern their built environment. UpCodes’ company practices demonstrate that it publishes the works as law, not as technical standards. The panel found that the use by UpCodes is transformative. While UpCodes is a for-profit entity, and UpCodes’ use has commercial and noncommercial elements, it does not amount, at this juncture, to exploitation for commercial profit. Regardless of whether the commerciality inquiry weighs minimally in favor of or against fair use, the commercial elements of UpCodes’ use did not outweigh its transformative nature.

Nature of the work. The Third Circuit agreed with the district court that the nature of the work factor strongly supported a finding of fair use. The works constitute technical standards related to steel and construction. Technical standards fall at the factual end of the fact-fiction spectrum, which counsels in favor of finding fair use. The nature of the work factors strongly favored fair use because once the technical standards were incorporated by reference into law, the standards moved even further to the periphery of copyright’s core protection.

Amount and sustainability of portion used. Next, the panel concluded that the factor related to the amount and substantiality of the portion used in relation to the copyrighted work as a whole weighed in favor of fair use. UpCodes reproduced the entirety of the works in the standards, which would ordinarily support a finding against fair use. But the third factor relates back to the first factor. The court generally weighs in favor of fair use where the amount of copying was tethered to a valid, and transformative, purpose.

Effect on market. Finally, the Third Circuit found that the effect on the market factor is neutral. Although UpCodes’ use has commercial and noncommercial elements, it does not amount to exploitation for commercial profit. UpCodes uses a “freemium” business model. Any user who makes an account on UpCodes’ website can view and 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. The panel found that the commerciality inquiry does little to help either party and that the effect on the market factor is equivocal.

Weighing all factors. In viewing all of the factors, three of the four statutory factors weighed in favor of fair use, and the fourth factor was equivocal. The appeals court agreed with the district court that UpCodes met its burden to show likely success on the merits of its fair use defense. Therefore, the Third Circuit affirmed the order denying the motion for a preliminary injunction.

The Case is No. 24-2965.

Judge: Restrepo, L.

Attorneys: J. Kevin Fee (Dla Piper) for American Society For Testing & Materials, d/b/a ASTM International. Joseph R. Palmore (Morrison & Foerster LLP) for UpCodes, Inc.

Companies: American Society For Testing & Materials, d/b/a ASTM International; UpCodes, Inc.

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