Timothy K. Armstrong

“ As the example of the Statutes at Large illustrates, launching a new crowdsourced open-access initiative is a project within the means of a dedicated individual acting on his or her own initiative. The need to build committee structures or to lobby for consensus-based decision-making is not an impediment; texts within any single user’s areas of interest and expertise may be added to a project almost effortlessly, with other users of the site free to contribute as their own interest and curiosity dictates. ”

“ A woodenly literal reading of this text might suggest that copyright infringement is definitionally impossible, because any copy made without “the authority of the author” is not “fixed” within the meaning of the statutory definition, and hence not a “copy” that the copyright holder alone has the right to make. The courts, of course, have correctly refused to read the statute in such a way as to subvert the very possibility of liability for infringement in this fashion. ”

“ Many open-access sites fail to take advantage of the improved capabilities that hypertext offers over publication of the exact same document in paper form. That is to say, although they reproduce the text of the courts’ opinions as published, they do nothing more than that: it is not possible to click and follow a citation that appears in the text of the court’s opinion and view the cited source, even if the other source is also online. Nor do most sites include any citator functionality whereby the opinion being displayed can be followed forward in time to locate references that cite it. ”

“ An author’s voluntary selection of an open-content license cannot plausibly be analogized to a transaction in which a powerful licensee pressures an author into an unremunerative exchange. The Copyright Act’s termination provisions were enacted to strengthen authors’ resistance to such pressures, and courts may rightly question why the statute should be applied in circumstances, such as open-content licensing, where these pressures are manifestly absent. ”

“ What is worse, the statute’s definitional provisions are a muddle, creating uncertainty at the very point where the statute most needs (and promises) clarity. Consider first the legislative definition of “circumvention,” the key analytical concept around which both the anti-circumvention and anti-trafficking liability provisions ultimately revolve:
[T] o “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner. ”

“ As a matter of principle, there is no reason why such a crowdsourced production process might not be employed to extend access to legal materials and scholarship. The technological architecture for building new open-access projects in the legal arena is already in place; all that is missing is a sufficiently large pool of contributors willing to assist in building the informational commons as their interests and abilities permit. ”

“ It makes sense to extend binding force to an inventor’s decision to abandon an invention (or to take one of the other steps that negates patentability) in a regime that makes the inventor’s action determinative of the invention’s legal status; where protection exists automatically irrespective of the author’s conduct, as in copyright, courts may be less inclined to attach permanent and irreversible consequences to the author’s statements. ”

“ DeCSS was a computer program written to enable users to decode the audiovisual content of DVD-Video discs (more colloquially, “DVDs”) which had been scrambled using a rudimentary form of digital encryption known as the “Content Scramble System,” or “CSS.” [32] DeCSS made it possible for users to decrypt (and thereafter to view or copy in unencrypted form) the content of a CSS-encrypted DVD even if the user had not paid a licensing fee to the DVD Copy Control Association (“DVDCCA”) , an industry group, for an authorized decryption key. ”

“ When copyright rights attach automatically upon fixation and formalities are irrelevant, it is quite possible that a court may construe an author’s post-fixation dedication of the work to the public domain as a “nonexclusive grant of a transfer or license or copyright or of any right under a copyright” [306] that is necessarily subject to the statute’s termination provisions. This interpretation would allow the author to terminate her abandonment of copyright and recapture proprietary rights in the work. ”

“ Reading the same opinion on the site of a large proprietary publisher sends perhaps a different message, but not one that would cause most users to question the fidelity of the reproduction. Reading the same opinion on an open-access site, however, may prompt uncertainty as to the provenance and authenticity of the text. The availability of mechanisms for verifying a text’s authenticity will be an important functionality in encouraging more widespread use of open-access alternatives to proprietary publishers. ”

“ Reference to the broader corpus of federal copyright law is essential to give these provisions of the DMCA any meaning at all. Liability for both circumvention and trafficking, for instance, exists only where technological measures protect a presently copyrighted work; that is, the existence of a valid copyright is an express statutory precondition both to a claim for copyright infringement and a claim arising under the DMCA. [164] One of the DMCA’s two bans on trafficking in circumvention devices imposes liability only where “a right of a copyright owner” is at stake. ”

“ Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not. ”