“Shrinking the Commons”: Today, Linux is open-source. Tomorrow, …?

I spent the summer finishing up a paper that I have been working on (off-again, on-again) for the better part of a year. The result is Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public, and it’s now available on SSRN. Readers of this blog with an interest in copyright law and the open-source/peer production phenomenon may enjoy the paper.

The paper grew out of a seemingly simple question I tried to answer a couple of years ago, namely: if I put something into the public domain, can I take it out again? On the one hand, it seems like the answer would have to be “no” for policy reasons; otherwise, what happens to all the people who might have relied on the public-domain status of the work to create their own derivatives and remixes? But on the other hand, the copyright statute in the U.S. includes some fairly obscure provisions that seem to allow authors to change their minds any time they transfer ownership of their work. Those provisions exist to solve a completely different problem, but if applied literally, they could make it possible for authors to rescind a dedication of their own work to the public domain.  As I discuss in the paper, there might be some constitutional problems with that outcome, and downstream users of a (formerly) public-domain work may be able to raise a number of valid equitable defenses to any claim of copyright infringement.  But as a purely statutory matter (as many others have recognized), it’s hard to find a basis for upholding a permanent, irrevocable dedication of one’s copyright to the public domain.

I argue in the paper that these parts of the statute may create a big headache down the road for the open-source software community, and for other large-scale informational projects (like Wikipedia, for instance) whose legality depends on the provisions of specialized copyright licenses.  Legally, all those projects rest on an interlocking set of permissions among contributors to reuse one another’s work.  But under the statute, any of those permissions can be  revoked in the future, even if the contributor promised not to.  Possible problem: what happens when somebody who contributed code to an open-source project many years ago revokes permission to continue using their work?

In the paper, I take a couple of stabs at creatively reinterpreting existing copyright law to fix the problem, before ultimately throwing up my hands and kicking it over to Congress.  I’ll post the abstract of the paper after the jump.

Here is the abstract:

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used “open content” licensing arrangements, such as the GNU General Public License (“GPL”) for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.

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.

Would love to hear any feedback.

6 Responses to ““Shrinking the Commons”: Today, Linux is open-source. Tomorrow, …?”

  1. The elephant in this room is the termination-of-transfers provisions, which are hands-down the single worst feature of U.S. copyright law. The best course would be for Congress to amend them out of the Copyright Act entirely — that would solve not only the problems you address, but a great many others, besides.

  2. Indeed, you have anticipated my very conclusion! Although I have tried to imagine an amendment that would leave the existing termination provisions intact while carving out an exception for open-content licensing, on the theory that this might be more politically palatable than striking the termination provisions out of the statute entirely.

  3. […] “Shrinking the Commons”: Today, Linux is open-source. Tomorrow, …? In the paper, I take a couple of stabs at creatively reinterpreting existing copyright law to fix the problem, before ultimately throwing up my hands and kicking it over to Congress. I’ll post the abstract of the paper after the jump. […]

  4. I look forward even more to reading the paper, then.

  5. I’m trying to learn here–not arguing, asking. Would not derivative works become jointly owned and live on under the original copyright, e.g. public domain, share-alike, etc? Could a person actually revoke just their portion of a derivative work? That would indeed be a mess.

  6. Great question, Kevin. The problem there would be that, under section 103(b) of the statute, the copyright in the original author’s contribution is distinct from the copyright that exists in any derivative works created from that contribution.

    Suppose I write a poem, and you want to set it to music. I grant you a license allowing you to do so. (If you try to do it without my permission, you’re probably in trouble, because the song is a derivative work from the poem.) I have a copyright in the poem as the original work, and you have a copyright in the song as a derivative work of the poem. (I don’t own the song because I didn’t create it; although anybody who infringes your copyright in the song is probably also infringing my copyright in the lyrics, so it probably doesn’t matter.)

    The termination provisions of the statute give me the power to rescind my permission for you to use my poem. You can still play your song because it was authorized when created; the statute is quite clear that previously authorized derivative works don’t become unauthorized merely because somebody terminates one of the underlying grants on which they are based. But, and here’s where I think the problem lies for the open-source phenomenon, after termination, nobody can create a new derivative work based on the now-terminated grant of rights. For constantly evolving works such as software, that is potentially a real problem, because version 7.5 is probably a derivative of version 7.4, which in turn is probably a derivative of version 7.3, and so on back the chain to version 1.0. (There has been a fair amount of scholarship aimed at trying to tease out the exact dimensions of the derivative works right in software; I cite some of it in my paper, but it’s probably beyond the scope of a blog post.)

    So, yes, an author can indeed revoke their permission to use their contributions to a derivative work. That doesn’t make the derivative work itself unauthorized or infringing. But it does impair the creation of new derivative works based on the terminated grant. Add the fact that this would all be happening decades after the original grant of rights, and you’ve got a formula for real confusion, it seems to me.