Using standards doesn’t violate the Takings Clause.
Klosek 24 – Director for Information Policy and Federal Relations at the Association of Research Libraries, former Director of the Center for Applied Public Research at Johns Hopkins University, M.A. in Public Policy from Johns Hopkins University.
Katherine Klosek, “No One Can Own the Law—So Why Is Congress Advancing a Bill to Extend Copyright to It?,” Association of Research Libraries, 04-19-2024, https://www.arl.org/blog/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/
Another flawed argument by lawmakers at the Pro Codes markup is that standards incorporated by reference is an unfair “taking” of the SDOs’ copyrights under the Fifth Amendment. As the lawmakers’ argument goes, governments must compensate property owners when they take over private property for public use under eminent domain; similarly, the government should extend copyright to the SDOs in exchange for the use of their standards. But this analogy falls apart because there is no reluctance on the part of the SDOs for the adoption of their standards; in fact, the SDOs actively lobby governments to adopt their standards.