Timothy K. Armstrong

“ 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. ”

“ 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. ”

“ For the open-content movement, termination is a problem worth solving. Open-content advocates have skillfully leveraged copyright concepts to create a vibrant and growing commons of freely reusable creative works of many types—a grand achievement given the proprietary production paradigm implicit in the language and structure of the Copyright Act. The new open-content commons rests upon a set of remarkable licensing instruments that use the architecture of control as a means to create freedom. ”

“ The BSD license says: “Here is a commons. It is not defended by copyright against appropriation. Everything in the commons may be taken and put into proprietary, non-commons production as easily as it may be incorporated in commons production. We encourage people to put material into commons, and we are indifferent as to whether the appropriative use made of commons resources is proprietary, or commons-reinforcing.” ”

“ Every delegation of rulemaking authority presents some risk of regulatory capture, and it is possible, albeit unlikely, that the Librarian’s power might be subject to abuse. For example, suppose the Librarian interceded on behalf of a powerful movie studio to declare non-terminable a license, like Siegel and Shuster’s, upon which the studio had built a lucrative franchise. [380] The amended statute’s reference to licenses that “grant copyright rights to the public at large” ought to ensure that such a misapplication of the agency’s power does not survive judicial review. ”

“ Several of the routes by which expressive works once entered the public domain have been curtailed or eliminated; indeed, the only circumstance the Copyright Act presently expressly recognizes as ending protection under copyright for U.S. works is through the expiration of the statutory term of protection. [230] The strong statutory presumption of continual proprietary protection influences other copyright policymakers, too; the courts, for their part, are exceedingly unlikely to find that an author has abandoned the rights vested automatically by statute from the moment of fixation. ”

“ It would align the law with the reasonable expectations of authors (numbering in the millions in the United States alone) who write open-source software, contribute photos to Flickr, add content to Wikipedia or its sister sites, build architectural edifices in Second Life, or write weblogs, all while expecting and intending that their contributions will forever remain available for others to enjoy. ”

“ Any creator is free to draw from public-domain materials and to incorporate them into her own creation. [35] A growing literature recognizes the beneficial effects on creative production from the existence and availability of freely usable public-domain works. By reducing the costs creators must pay to reuse others’ creations in their own, a rich commons pays public dividends in the form of greater production of expressive works. [36] As discussed below, however, changes to U.S. copyright law over the past three decades have tended to restrict the entry of new works into the public domain. ”

“ The public derives at least two identifiable benefits from works produced under open-content licenses. First, perhaps most obviously, open-content works may be consumed without fear of liability. Individuals may freely use software, [42] or listen to (or share) music [43] issued under open-content licenses (assuming, as always, that any applicable conditions in the accompanying licenses are observed) . This is a particularly valuable benefit insofar as it aligns with internet-user norms, which have favored the sharing and reuse of works even in the face of legal threats. ”

“ Rapid evolution characterizes many of the works created under such licenses, and untangling a terminating author’s long ago contributions from the contemporary version of a work may represent an exceedingly complex undertaking. In addition, open-content works often include contributions from many authors—thousands, or even millions, in the case of large-scale projects like Linux or Wikipedia—and the task of excising a terminating author’s contributions while simultaneously preserving later users’ contributions would prove particularly vexing. ”

“ In both Sony and Grokster, the Copyright Act was silent on the question before the court, and the question was whether the court would fill this gap by referring to language in the Patent Act. [351] A court may be less willing to borrow language from the Patent Act where the effect is not to fill in a gap, but rather to displace language (to wit, the termination provisions) that actually appears in the Copyright Act. Furthermore, patent abandonment is a component of a larger regime that places the burden of seeking protection squarely on the inventor. ”

“ 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. ”

“ Depending on their motivation, individual contributors to open-content projects may react differently to the discovery that the licenses authorizing them to modify and redistribute the content on which they worked are subject to possible termination. For example, those disinclined to see proprietization as an evil to be avoided (such as developers of BSD-licensed software) may be indifferent to the possibility of termination of the license. ”

“ The CC0 license’s Statement of Purpose, which lacks any parallel in the Public Domain Dedication, may supply a useful interpretive guide to courts or other authorities called upon to construe the license insofar as it explicates and justifies the author’s conscious determination to forgo proprietary rewards in favor of building the commons. For lawyers and policymakers steeped in copyright’s historically dominant proprietary-production paradigm, this concise introduction to the open-content movement’s alternative worldview may be highly valuable. ”

“ Creative Commons licenses present authors, in effect, with a menu of license criteria, each reflecting a particular policy decision, from which the author is free to pick and choose. The various possible license criteria (and the recognized Creative Commons abbreviations) are:
Attribution (“BY”) : should users be required to give credit to the original author and/or publisher when they copy or reuse the licensed work? Noncommercial (“NC”) : are users free to copy or reuse the licensed work for commercial purposes, or for noncommercial purposes only? ”

“ There is, correspondingly, a diminished need to become familiar with particularized license terms that may vary from one vendor to the next outside the open-content domain.
Finally, combining the foregoing characteristics yields the defining feature of all open-content licenses: they promote freedom. Open-content licenses expressly authorize a large community of users, at their sole election and without further negotiation or expense, to use a variety of works in a manner that would otherwise infringe copyright. ”

“ The point is simply that the Copyright Act’s termination clauses may, by their terms, reach some or all of these situations, even though none of these scenarios presents the problem of unequal bargaining power that motivated Congress to enact the termination provisions. Particularly when one considers that the Copyright Act allows persons other than the original author to terminate a license in some circumstances, [23] the possibilities for gamesmanship and abuse of the termination regime in the realm of open-content works appear substantial. ”

“ Existing U.S. law, however, may not comfortably accommodate a transfer “to the detriment of Affirmer’s heirs and successors” that “shall not be subject to . . . termination,” [227] nor an “irrevocable . . . license [.] ” [228] Such provisions may run afoul of the termination rights the Copyright Act confers upon the authors of expressive works, which cannot be waived or contracted away. [229]
Existing law, in sum, poses a number of obstacles to the growth of the public domain as a commons of freely reusable expressive works. ”

“ An overview of some of the commonly used open-content licenses for non-software works reveals both similarities and differences with the software-licensing regime previously discussed. On the one hand, other varieties of open-content licenses must grapple with some of the same tradeoffs that have contributed to the proliferation of FOSS licenses. Issues surrounding attribution, commercial reuse, and reciprocity loom equally large outside the software domain, and diverse licensors might see the issues differently depending upon their attitudes toward the importance of a growing commons. ”

“ Abandonment by License Perhaps influenced by highly restrictive judicial interpretations of the copyright abandonment doctrine, open-content advocates have sought to facilitate the growth of an expressive commons by drafting what are, in essence, copyright abandonment licenses—instruments that seek to express, with maximum clarity, an author’s attempt to abandon copyright and dedicate a work to the public domain. ”

“ In the case of an author survived both by a spouse and by at least one child or grandchild, the spouse holds fifty percent of the termination rights and the author’s children collectively hold the other fifty percent divided equally among them, with the same per stirpes rule for grandchildren; and In the case of an author survived neither by a spouse nor by any children or grandchildren, the author’s executor, administrator, personal representative, or trustee enjoys the power to terminate grants of the deceased author’s copyright rights. ”

“ Open-content licenses preserve a commons of informational works because it is well settled (as Jacobsen illustrates) that the author of a work may attach enforceable conditions to authorized uses of the work. [301] There is no comparably settled doctrine, however, in favor of the making of a permanent and non-terminable license of rights under copyright. The statute, to the contrary, expressly circumscribes private action to create a non-terminable license. ”

“ Open-content licenses make such coordination lawful; they substitute for the hierarchical structure of a firm by allowing each contributor to the project to adapt and reuse code contributed by earlier contributors. Each FOSS work, in other words, is protected by not one copyright, but many: each contributor’s contributions are individually protected from the moment of fixation, but then licensed for free reuse by members of the public. ”

“ Congress should recognize the peer production phenomenon as an essential change in the baseline assumptions that prevailed at the time of the Copyright Act of 1976—a change that demands its own recognition in positive law. ”

“ Termination of an open-content license would have effects on the underlying project that, while difficult to predict, are unlikely to be salutary. Consider an example from the FOSS world: software development has been recognized as an irreducibly complex process insofar as the production of software works exceeding a certain (and comparatively rudimentary) level of complexity is a challenge beyond any individual developer. ”

“ The joint action of the FSF and the WMF to enable the relicensing of Wikipedia under a Creative Commons license tends to suggest that one of the common criticisms of open-content licensing—namely, that a proliferation of license standards impedes rather than promotes sharing and reuse of the licensed content—has been overstated. ”

“ The evolution of these provisions in the legislation that ultimately became the Copyright Act of 1976, and the pattern of case law construing those provisions, both show that Congress’s attention was focused on redressing unremunerative transfers made by authors in the face of superior bargaining power: [24] a policy that, whatever its normative appeal, clearly has no application to the peer-production phenomenon. The need to address the termination issue draws added force from recent cases applying traditional copyright principles to open-content licenses. ”

“ To add a final layer of complexity, different versions of each Creative Commons license exist that are tailored to the particularities of different national legal systems, and where a particular jurisdiction’s version of the license applies, it is common to so note. ”

“ The CC0 license includes a brief “Statement of Purpose” explaining the licensor’s intent in adopting the license:
Certain owners wish to permanently relinquish those [copyright
and related] rights to a Work for the purpose of contributing to a commons of creative, cultural and scientific works (“Commons”) that the public can reliably and without fear of later claims of infringement build upon, modify, incorporate in other works, reuse and redistribute as freely as possible in any form whatsoever and for any purposes, including without limitation commercial purposes. ”

“ Absent preventive action, however, termination problems may substantially complicate open-content projects in the future.
The natural inclination for open-content advocates would surely be to seek to solve the problem through skillful redrafting of the governing licensing instruments. The CC0 license, while not without flaws, reflects the best recent thinking in this regard; it recognizes its own potential infirmity under existing law and supplies an alternative means to effectuate the licensor’s intent. ”

“ Clarity and flexibility would be the most obvious advantages of an administrative regime to promulgate exceptions to the statute’s termination provisions for open-content licensing. Consulting the agency’s list of nonterminable licenses would provide advance assurances to licensees that contributions to an open-content project would remain in the commons in perpetuity. Furthermore, as licensing instruments continued to evolve, the list of non-terminable licenses could expand as well. ”