Otherwise, letting the ASTM case stand will reverse progress. AND incorporation by reference makes the problem worse.

Matthew Zorn and Shane Pennington, “Questions Raised By Laws That Use Copyrighted Standards?,” Law360, 08-02-2018, https://www.yettercoleman.com/wp-content/uploads/2018/08/Law360-Questions-Raised-by-Laws-That-Use-Copyrighted-Standards.pdf

While skirting these broader issues, the D.C. Circuit did not mention another issue lurking beneath the surface of these incorporation-of-copyright-into-law cases: the takings clause.[18]

The takings clause of the Fifth Amendment prohibits the federal government from taking private property for public use without just compensation. Through the 14th Amendment, it also applies to the states. Put simply, if incorporation permits free copying of a protected work — via fair use or effective revocation of the copyright — it might destroy the copyright’s value and give rise to a takings claim. The Second Circuit recognized that possibility in CCC, noting that an incorporation rule could raise “very substantial problems under the Takings Clause.”[19]

This view is plausible, at the very least. Although the Supreme Court has never expressly held that the takings clause covers copyrights, Ruckelshaus v. Monsanto Co.[20] provides ample support for the proposition. There, Monsanto claimed that certain provisions of Federal Insecticide, Fungicide and Rodenticide Act requiring public disclosure of submitted data effected a takings of trade secrets. The Supreme Court agreed, and held the takings clause encompasses intangible interests like trade secrets. Of course, the same reasoning could apply to copyrights.

More support comes from Oil States Energy Services LLC v. Greene’s Energy Group LLC,[21] decided in the October 2017 term. There, the Supreme Court held that patents were personal property rights in the form of “public franchises.” Although the Copyright Act contains no analogue to Section 261 of the Patent Act,[22] the Supreme Court has long held that the copyrights and patents create the same sort of property right. That is significant because the Takings Clause protects against direct appropriations of personal property.[23] Thus, if copyrights are a type of personal property as Oil States implies, they could be the subject of a takings claim.[24]

The concern that nonconsensual incorporation of a copyrighted works into law might violate the takings clause is real. Incorporating a copyrighted standard or code is appropriating the copyrighted work for a public use, i.e., the creation of law. And the sine qua non of copyright is control over publication. Once the government opens the door to free copying through incorporation, it effectively obliterates the copyright.