Now in Print: Termination and Open-Content Licensing

Harvard Journal on Legislation, Summer 2010The Summer issue of the Harvard Journal on Legislation, now available in print and online, includes my article “Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public,” which I previously blogged about here.

The article highlights a problem in copyright law (previously discussed by Lydia Loren and Anthony Reese, both from perspectives that differ from mine in a number of particulars) that may affect “open-content” projects such as the Linux operating system and the Wikipedia encyclopedia. Those and other projects have grown rapidly by aggregating contributions from many individual users. As a condition of participating in the project, the users agree to license their contributions under standard-form licenses that permit future contributors to build on prior contributors’ work without fear of liability for copyright infringement. (The GNU General Public License is one of the best known, widest used, and most frequently discussed such licenses, but there are hundreds of alternatives used by different projects).

The intent of such licenses (frequently, although not always, stated expressly in their text) is to allow other users to share and reuse the licensed content forever. In the United States, however, copyright law makes the permanent grant of license to reuse a work impossible. There are provisions in the statute (most notably section 203(a), which governs all transfers and licenses executed since 1978) that permit the creators of copyrighted works to rescind any licenses they previously granted. Those statutory provisions come with some important qualifiers and caveats (most importantly, they operate only on a fairly long time horizon), but they are there, and the statute prevents parties from contracting around the termination rules.

My new paper investigates what the copyright statute’s termination provisions may mean for open-content projects (as well as for the analytically similar, although surely far less common, scenario in which an author expressly disclaims or abandons copyright). After looking at a few ways in a which a court inclined to do so might manage to salvage an open-content license from a contributor’s attempt at termination, I propose new legislation aimed at solving the problem before it arises.

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