It’s the key issue..

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

Ultimately, the most important issue that the opinion raises is likely whether or not incorporation by reference now constitutes a taking sufficient to trigger the protections of the Takings Clause.37 Surprisingly, it is not clear if copyright is considered “private property” for the purposes of the Takings Clause,38 and vigorous scholarly debate has produced arguments on both sides of this issue.39 However, the Supreme Court has held that trade secrets are “private property” protected by the Takings Clause and that copyrights are a property interest protected by the Fourteenth Amendment’s Due Process Clause, which together suggest that copyrights likely fall within the scope of the Takings Clause.40 Even assuming this, however, it remains uncertain whether or not the losses that incorporation by reference causes for copyright holders would be considered a per se taking (mandating compensation) or a regulatory taking (requiring consideration of a balance of factors).41 Given that the copyright in the standard itself is not taken, but rather the value in holding the copyright is reduced by permitting fair-use publication, it seems that a regulatory taking is the more likely classification, though this would make it more difficult for SDOs to receive compensation.42