It will lead to a collapse of the SDO market, which ruins the ability of the government to use standards.
Burroughs 24 – J.D. Candidate at the University of Chicago School of Law.
John Burroughs, “Incorporated Standards and Fair Use: Remaining Uncertainties Set the Stage for Further Litigation,” The University of Chicago Business Law Review, https://businesslawreview.uchicago.edu/online-archive/incorporated-standards-and-fair-use-remaining-uncertainties-set-stage-further
Such a result seems unlikely if the first three factors still weighed strongly in favor of fair use, but this would mean that SDOs that substantially depend on revenue from sales of their standards would likely be driven out of the market. This would eventually result in economic harm to businesses and consumers alike—as the standards for the industries served by those SDOs would become progressively more out of date without an SDO to continuously revise them. Moreover, these potential losses could even discourage SDOs that don’t substantially depend on revenue from sales of their standards from investing additional resources in the development of new standards or the continuous updating of old ones. SDOs may also seek to avoid losses by lobbying for governments to not incorporate—or even unincorporate—their standards, which would deprive businesses and government regulators of the efficiencies that result from incorporation by reference. Finally, the potential loss of revenue from sales of standards would deter new SDOs (who would not yet be established enough to “profit though [sic] trainings [or] membership fees”34 ) from emerging in new and developing industries, precisely where industry standards could have the greatest positive economic impact.