Shrinking the commons: Termination of copyright licenses and transfers for the benefit of the public

Harvard Journal on Legislation

Volumn 47, Issue 2, 2010, Pages 359-423

  Armstrong, Timothy K ^a  

^a NONE

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[No Author keywords available]

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EID: 77956942906     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (383)

1. 17 U.S.C. § 106 (2006) enumerates the copyright holder's exclusive rights, including the rights to reproduce, distribute, and prepare derivative works from the copyrighted work. Additionally, some expressive works receive further protections in the form of exclusive rights of public performance or display, or of digital audio transmission. See id. Each of these rights may be owned and transferred separately upon whatever terms the parties to the transaction agree to adopt. See generally id. § 201(d).
2. Id. §§ 203(a) (governing termination of transfers executed in 1978 or later), 304(c) (governing termination of transfers executed in 1977 or before). See generally infra Part III.B.1.
3. See §§ 203(a)(5), 304(c)(5). See generally infra notes 255-56, 260 and accompanying text.
4. The sole exception in the Copyright Act is for transfers by will, which are expressly excluded from the operation of the termination provisions. See §§ 203(a), 304(c). For all voluntary transfers or licenses of copyright made inter vivos, however, termination remains potentially available. Involuntary transfers, such as by expropriation or by operation of law, lie outside the present inquiry. Regarding such transfers, see generally id. § 201(d)(1), (e).
5. See infra notes 236-39, 261-62 and accompanying text.
6. See infra notes 231-35 and accompanying text.
7. See §§ 203(a)(5), 304(c)(5). See generally infra notes 255-60 and accompanying text.
8. "Open content," as used herein, refers to all expressive works licensed under terms that allow copying, modification, and redistribution by unspecified third parties, with or without additional conditions such as restrictions on downstream users' choice of licenses for their own content. See infra notes 64-65, 111, 128 and accompanying text (discussing so-called "copyleft," "share-alike," or noncommercial usage provisions of some open-content licenses). The term encompasses, at a minimum, open source software, as well as non-software works licensed under the Creative Commons family of licenses. Cf., e.g., Séverine Dusollier, Sharing Access to Intellectual Property Through Private Ordering, 82 CHI.-KENT L. REV. 1391, 1397 (2007) (explaining that "open source" initiatives outside the domain of software are frequently called "open content" or "open access" projects); Andrés Guadamuz González, Scale-Free Law: Network Science and Copyright, 70 ALB. L. REV. 1297, 1325-26 (2007) (recognizing use of "open content" in a similar sense). Public domain works are also open content, al-though they ordinarily do not depend for their "openness" on the terms of a license as other open-content works do. But cf. infra Part III.A.3 (discussing public domain licenses).
9. Linux, sometimes labeled "GNU/Linux" to reflect the contributions of the GNU Project, arose from an effort to create a free alternative to the powerful Unix operating system that had been developed at AT&T starting in the late 1960s. See STEVEN WEBER, THE SUCCESS OF OPEN SOURCE 20-53 (2004) (recounting history of Unix); see also infra note 46. The original Linux kernel was written by Finnish programmer Linus Torvalds, although the kernel project alone has since grown to include thousands of contributors, and many more developers write Linux application software. WEBER, supra, at 94-127 (tracing development of Linux and related projects); see also ERIC S. RAYMOND, A Brief History of Hackerdom, in THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY 5, 23-25 (1999); Jonathan Zittrain, Normative Principles for Evaluating Free and Proprietary Software, 71 U. CHI. L. REV. 265, 268-69 (2004).
10. Firefox represents a still rare, although perhaps increasing, phenomenon: a once-proprietary product (Netscape Navigator) released for community development under the open-source model. Zittrain, supra note 9, at 278 & n.29; see also CHRISTOPHER M. KELTY, TWO BITS: THE CULTURAL SIGNIFICANCE OF FREE SOFTWARE 99-112 (Michael M. J. Fischer & Joseph Dumit eds., 2008); Greg R. Vetter, Claiming Copyleft in Open Source Software: What if the Free Software Foundation's General Public License (GPL) Had Been Patented?, 2008 MICH. ST. L. REV. 279, 312-14.
11. The English-language version of Wikipedia is online at http://en.wikipedia.org/ (last visited Mar. 4, 2010). See YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRO-DUCTION TRANSFORMS MARKETS AND FREEDOM 70-74 (2006); CLAY SHIRKY, HERE COMES EVERYBODY: THE POWER OF ORGANIZING WITHOUT ORGANIZATIONS 109-17 (2008).
12. The provisions of a small, but hopefully representative, sample of the many such licenses in existence are considered infra Parts II.B-C.
13. What one observer said of open-source software could be applied more broadly to other open-content communities: "In a very real sense, the open source community figures out its self-definition by arguing about licenses and the associated notions of property, what is worth protecting, that they embody." WEBER, supra note 9, at 85; see also id. at 185 (an open-source license "is not simply a set of legal definitions and restrictions. Rather, the license represents foundational beliefs about the constitutional principles of a community and evolving knowl-edge about how to make it work.").
14. See infra notes 277-85 and accompanying text.
15. This is Yochai Benkler's useful formulation, which concisely encapsulates a number of complex analytical constructs. See BENKLER, supra note 11, at 59-132; Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375 (2002).
16. See, e.g., infra notes 74-76 and accompanying text.
17. The first version of the GNU General Public License ("GPL") for software, for example, was issued in 1989. See FREE SOFTWARE FOUND., GNU GENERAL PUBLIC LICENSE VERSION 1.0 (1989), http://www.gnu.org/licenses/old-licenses/gpl-1.0.txt [hereinafter GPLV1]. As discussed below, the most likely applicable statutory termination provisions do not take effect until thirty-five years after the execution of the transfer or license. See infra note 244 and accompanying text. It will be some years, in other words, before the earliest works licensed under GPLv1 become subject to possible termination. See infra notes 294-96 and accompanying text.
18. See infra notes 50-76 and accompanying text.
19. See infra notes 80-88 and accompanying text.
20. See infra Part II.C.2.
21. See infra Parts III.A.2-3.
22. See infra notes 311-12 and accompanying text.
23. See infra note 253 and accompanying text.
24. See infra notes 231-40 and accompanying text. 25 See infra notes 337-47 and accompanying text.
25. See infra notes 330, 333-36 and accompanying text.
26. U.S.C. § 106(1) (2006) ("the owner of copyright under this title has the exclusive rights to reproduce the copyrighted work in copies or phonorecords"); id. § 101 (defining "copies" and "phonorecords").
27. Id. § 106(3) (conferring upon copyright owner "the exclusive rights to distribute copies or phonorecords of the copyrighted work to the public" via enumerated means).
28. Id. § 106(2) (conferring upon copyright owner "the exclusive rights to prepare derivative works based upon the copyrighted work"); id. § 101 (defining "derivative work").
29. One might imagine a licensing regime that permits copying or modification only by members of a defined group, of course. See BENKLER, supra note 11, at 61; Lee Anne Fennell, Adjusting Alienability, 122 HARV. L. REV. 1403, 1430 n.131 (2009) (differentiating "limitedaccess commons" from "open-access resources"). None of the licensing arrangements considered herein, however, has this feature-which is unsurprising in view of the participation maximizing goals that most open-content projects share. See, e.g., ERIC S. RAYMOND, The Cathedral and the Bazaar, in THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY, supra note 9, at 27, 41-44.
30. See Bruce Perens, How Many Open Source Licenses Do You Need?, DATAMATION, Feb. 16, 2009, http://itmanagement.earthweb.com/osrc/article.php/12068_3803101_1/Bruce- Per ens-How-Many-Open-Source-Licenses-Do-You-Need.htm (last visited May 4, 2010). To be sure, this task may become infeasible as the number of authors of the licensed work increases. It probably is not realistic, for example, to expect a prospective licensee to negotiate a non- GPL license for the Linux kernel given the huge number of contributors to that project whose assent would be necessary. See Molly Shaffer Van Houweling, The New Servitudes, 96 GEO. L.J. 885, 941-42 (2008) (explaining how need to secure assent of "thousands (perhaps tens of27 17 U.S.C. § 106(1) (2006) ("the owner of copyright under this title has the exclusive rights to reproduce the copyrighted work in copies or phonorecords"); id. § 101 (defining "copies" and "phonorecords"). 28 Id. § 106(3) (conferring upon copyright owner "the exclusive rights to distribute copies or phonorecords of the copyrighted work to the public" via enumerated means). 29 Id. § 106(2) (conferring upon copyright owner "the exclusive rights to prepare derivative works based upon the copyrighted work"); id. § 101 (defining "derivative work"). 30 One might imagine a licensing regime that permits copying or modification only by members of a defined group, of course. See BENKLER, supra note 11, at 61; Lee Anne Fennell, Adjusting Alienability, 122 HARV. L. REV. 1403, 1430 n.131 (2009) (differentiating "limitedaccess commons" from "open-access resources"). None of the licensing arrangements considered herein, however, has this feature-which is unsurprising in view of the participation maximizing goals that most open-content projects share. See, e.g., ERIC S. RAYMOND, The Cathedral and the Bazaar, in THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY, supra note 9, at 27, 41-44. 31 See Bruce Perens, How Many Open Source Licenses Do You Need?, DATAMATION, Feb. 16, 2009, http://itmanagement.earthweb.com/osrc/article.php/12068_3803101_1/Bruce- Per ens-How-Many-Open-Source-Licenses-Do-You-Need.htm (last visited May 4, 2010). To be sure, this task may become infeasible as the number of authors of the licensed work increases. It probably is not realistic, for example, to expect a prospective licensee to negotiate a non- GPL license for the Linux kernel given the huge number of contributors to that project whose assent would be necessary. See Molly Shaffer Van Houweling, The New Servitudes, 96 GEO. L.J. 885, 941-42 (2008) (explaining how need to secure assent of "thousands (perhaps tens of thousands) of contributing users" inhibits relicensing of Linux). But cf. infra notes 141-47 and accompanying text (describing recent successful effort to relicense Wikipedia).
31. See Perens, supra note 31.
32. See, e.g., infra note 50 and accompanying text.
33. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 14-15 (2003); BENKLER, supra note 11, at 60-62.
34. See, e.g., Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34 (2003) ("The rights of a patentee or copyright holder are part of a carefully crafted bargain under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution." (internal quotations and citation omitted)); Golan v. Gonzales, 501 F.3d 1179, 1193 (10th Cir. 2007) ("each member of the public has a nonexclusive right, subject to constitutionally permissible legislation, to use material in the public domain"); Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 710 (2d Cir. 1992) (recognizing that software developers are free to incorporate public-domain materials and techniques into their programs). There is, as others have recognized, not a single "public domain," but many, the contours of which vary depending on the purpose for which the term is used. See, e.g., JAMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND 38-39 (2008); Pamela Samuelson, Enriching Discourse on Public Domains, 55 DUKE L.J. 783 (2006) (developing a valuable taxonomy of the many senses in which the term "public domain" is commonly used). This Article adheres to the conventional understanding of the term as signifying works that are not presently under copyright, irrespective of whether they may have been copyrighted at one time or whether they were ever eligible for copyright protection at all. As the discussion of the copyright abandonment doctrine below suggests, however, even this relatively settled usage may blur into uncertainty at the margins. See infra Part III.A.2.
35. See, e.g., Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 MICH. L. REV. 462, 548 (1998) ("[S]ocial benefit accrues from the rights to access and use unprotected, public domain elements of existing works These rights and practices lead to the development of creative and scholarly talents and, ultimately, to the creation of new works."); Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 968 (1990) ("The public domain should be understood not as the realm of material that is undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use.").
36. See infra Part III.A.1.
37. As one judge famously put it: Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture. White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc); see also BENKLER, supra note 11, at 38 ("If we pass a law that regulates information production too strictly, allowing its beneficiaries to impose prices that are too high on today's innovators, then we will have not only too little consumption of information today, but also too little production of new information for tomorrow."); LANDES & POSNER, supra note 34, at 66-70.
38. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621 (1998); see also MICHAEL HELLER, THE GRIDLOCK ECONOMY: HOW TOO MUCH OWNERSHIP WRECKS MARKETS, STOPS INNOVATION, AND COSTS LIVES 9-16 (2008) (offering illustrative examples from copyright); ERIC VON HIPPEL, DEMOCRATIZING INNOVATION 112-15 (2005) (describing how strong intellectual property rights enable market incumbents to slow competitors' innovation).
39. See James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33, 62-66 (2003) (differentiating several features of contractually constructed information commons from the pure public domain); Lawrence Lessig, Re-Crafting a Public Domain, 18 YALE J.L. & HUMAN. 56, 74 (2006) (distinguishing the free reuse of works under open-content licenses from "the public domain"); Samuelson, supra note 35, at 799-802 (same).
40. See Robert P. Merges, A New Dynamism in the Public Domain, 71 U. CHI. L. REV. 183 (2004).
41. In the context of software, legal uncertainty presently surrounds the question whether the mere use of a program without authorization (even if no further copying or distribution of the program occurs) may infringe copyright in the work. Compare MAI Sys. Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993) (temporarily loading program into computer's RAM memory without authorization infringes copyright), with Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121, 127-28 (2d Cir. 2008) (declining to apply MAI where data was stored in computer memory for only a short time). See also 17 U.S.C. § 117 (2006) (creating statutory exceptions to copyright infringement liability for several common uses of computer programs, perhaps inviting negative inference that uses not expressly covered by the exceptions are infringing); Aaron Perzanowski, Fixing RAM Copies, 104 NW. U. L. REV. (forthcoming 2010).
42. The courts have sternly condemned the sharing of copyrighted music over peer-to-peer networks, minting new legal theories and voiding existing defenses to hold defendants liable. See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (creating new theory of liability for inducement of copyright infringement in file-sharing case); BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (rejecting fair use defense in file-sharing case); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (same); see also WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT 116-19 (2004) (arguing that Napster court misapplied the fair use doctrine); Pamela Samuelson, Unbundling Fair Uses, 77 FORDHAM L. REV. 2537, 2588-92 (2009) (arguing that some personal uses, such as the use at issue in Gonzalez, ordinarily should either receive broad fair use protection or be deemed outside the regulatory scope of copyright altogether).
43. See Mark F. Schultz, Fear and Norms and Rock & Roll: What Jambands Can Teach Us About Persuading People to Obey Copyright Law, 26 BERKELEY TECH. L.J. 651, 654 & nn.4-5 (2006); cf. John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 UTAH L. REV. 537, 543-47 (2007) (offering multiple examples of seemingly benign conduct that a strict reading of the law nevertheless makes punishable as copyright infringement).
44. Indeed, some open-content licenses create a ripple effect on this point by mandating that derivative works prepared from the open-content work must themselves be released as open content also. See infra notes 64-71, 111, 128 and accompanying text. But cf. ORGANISA- TION FOR ECON. CO-OPERATION & DEV. ("OECD"), PARTICIPATIVE WEB AND USER-CREATED CONTENT: WEB 2.0, WIKIS AND SOCIAL NETWORKING 83 (2007) (calling for further study to assess the net effects of open-content licensing on creative production).
45. The Unix operating system, which was developed at AT&T Corporation's Bell Labs beginning in 1969, was widely adopted by scientific and educational institutions under quite liberal licensing terms in the 1970s. See WEBER, supra note 9, at 25-29. As Unix's popularity grew, AT&T sensed an opportunity to capitalize on rising demand, and in the late 1970s it took several steps aimed at maximizing the commercial value of Unix, including dramatically raising its licensing fees and imposing new restrictions on licensees' authority to redistribute the operating system's source code. See id. at 38-39, 44-46. Rising proprietization of software sparked a backlash, led at MIT by programmer Richard Stallman, who in 1983 founded the Free Software Foundation ("FSF") and the following year launched the "GNU" (short for "GNU's Not Unix") Project with the goal of producing a complete operating system free from proprietary constraints. See id. at 46-48.
46. The label "free and open-source" is commonly used to pass over an internal squabble that exists in the nonproprietary software community, but which lacks significance for most analyses of that community's operations and product, including the present one. In brief, partisans of "free software" see avoiding proprietary or commercial entanglements as a moral imperative, while advocates of "open-source" view performance and technological superiority rather than ethics as the key issues. See BENKLER, supra note 11, at 66 (noting the dispute); Jos'e J. Gonz'alez, Open Source, Free Software, and Contractual Issues, 15 TEX. INTELL. PROP. L.J. 157, 178-85 (2007) (same); ERIC S. RAYMOND, Homesteading the Noosphere, in THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY, supra note 9, at 79, 83-84 (emphasizing "pragmatism" of "open source" advocates); RICHARD M. STALLMAN, Why "Free Software" is Better than "Open Source", in FREE SOFTWARE, FREE SOCIETY: SELECTED ESSAYS OF RICHARD M. STALLMAN 55-60 (Joshua Gay ed., 2002) (advocating moral superiority of "free software"); Vetter, supra note 10, at 298 (summarizing the debate).
47. "The Open Source initiative has, to date, approved 73 licenses" as compatible with the project's Open Source Definition. Perens, supra note 31; see also Open Source Initiative ("OSI"), Open Source Definition (Annotated), http://www.opensource.org/docs/definition.php (last visited Apr. 1, 2010). The FSF maintains its own, smaller, list of licenses that satisfy its definition of "free software." See FSF, VARIOUS LICENSES AND COMMENTS ABOUT THEM (2008), available at http://www.gnu.org/licenses/license-list.html.
48. See BENKLER, supra note 11, at 65 (describing GPL as "a legal technique that started a snowball rolling"); LAWRENCE LESSIG, CODE: VERSION 2.0, at 147-48 (2006) (linking dynamism of Linux development process to openness of source code guaranteed by the GPL); WEBER, supra note 9, at 49 ("[T]he GPL was a major innovation [that] established a clear social regime with specific principles and norms that defined free software.").
49. As of March 2010, the SourceForge online software repository indexed over 105,000 open-source software projects available under any version of the GPL. See SourceForge.net, Software Search, http://sourceforge.net/search/? (last visited Mar. 28, 2010) (listing number of projects by license status under "License" heading in left margin). A further 18,000 projects were available under the LGPL license (discussed infra notes 76-79 and accompanying text) and 12,000 under BSD-style licenses (discussed infra notes 80-88 and accompanying text). See id.; see also Sapna Kumar, Enforcing the GNU GPL, 2006 J.L. TECH. & POL'Y 1, 3 ("Between sixty-five and seventy percent of open-source software is GPL-licensed.").
50. See GPLV1, supra note 17.
51. See FSF, GNU GENERAL PUBLIC LICENSE, VERSION 2 (1991), available at http://www. gnu.org/licenses/old-licenses/gpl-2.0.txt [hereinafter GPLV2].
52. See FSF, GNU GENERAL PUBLIC LICENSE, VERSION 3 (2007), available at http://www. gnu.org/licenses/gpl.html [hereinafter GPLV3]. For a review of the drafting process that produced the GPLv3-a distributed, international endeavor conducted over the Internet-see Christopher M. DiLeo, Comment, "Bazaar" Transnational Drafting: An Analysis of the GNU Public License Version 3 Revision Process, 10 SAN DIEGO INT'L L.J. 193 (2008).
53. A division presently exists within the FOSS community between authors who are migrating to GPLv3 and those who are continuing to license their works under GPLv2 due to certain new conditions added in the GPLv3, such as a broadened patent-licensing clause and a restriction on the use of GPL-licensed code in digital rights management technologies. See Andr'es Guadamuz-Gonz'alez, GNU General Public License v3: A Legal Analysis, 3 SCRIPTED 154 (2006) (critically reviewing changes introduced in GPLv3); see also Kumar, supra note 50, at 3 n.14 (quoting Linus Torvalds explaining why he will not adopt GPLv3 for the Linux kernel). But cf. Perens, supra note 31 (downplaying significance of GPLv2-versus-GPLv3 rift). The new provisions introduced in the GPLv3 are important to a full understanding of the tradeoffs entailed by the license in practice, but will not be further considered herein.
54. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1198 (11th Cir. 2001) ("[s]oftware distributed pursuant to [the GPL] is not necessarily ceded to the public domain"); Brian W. Carver, Share and Share Alike: Understanding and Enforcing Open Source and Free Software Licenses, 20 BERKELEY TECH. L.J. 443, 469-70 (2005) (summarizing German court ruling rejecting claim that GPL effectuated a waiver or abandonment of copyright); Natalie Heineman, Computer Software Derivative Works: The Calm Before the Storm, 8 J. HIGH TECH. L. 235, 262 (2008) ("Calling source code 'open' or 'free' under the GPL or its equivalent may give the false impression that the copyright owner has waived her copyrights in the work, thereby releasing the work into the public domain."); Joseph Scott Miller, Allchin's Folly: Exploding Some Myths About Open Source Software, 20 CARDOZO ARTS & ENT. L.J. 491, 496-97 (2002) ("In sharp contrast to placing a piece of software into the public domain by utterly disclaiming copyright protection, using a free software license such as the GPL prevents downstream recipients from using the software to create new programs for distribution under a closed source approach."); cf. supra note 40 (recognizing other authorities that distinguish contractually constructed information commons from public domain).
55. Issues surrounding the scope of copyright protection for software lie outside the present inquiry, but would necessarily complicate any actual case involving possible infringement of a GPL-licensed FOSS work. See, e.g., Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 701-12 (2d Cir. 1992) (developing analytical methodology for identifying and excluding unprotectable elements of work in software copyright infringement case); Pamela Samuelson, Why Copyright Law Excludes Systems and Processes From the Scope of Its Protection, 85 TEX. L. REV. 1921, 1961-73 (2007) (reviewing history of copyright protection for software and significance of 17 U.S.C. § 102(b) (2006)).
56. GPLV3, supra note 53, pmbl. (emphasis added); see also Miller, supra note 55, at 497 ("The GPL does not destroy a software author's original copyright; rather, it is predicated squarely upon it."); cf. GPLV1, supra note 17, pmbl. ("We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software."); GPLV2, supra note 52, pmbl. (same).
57. See GPLV1, supra note 17, §§ 1, 3; GPLV2, supra note 52; GPLV3, supra note 53, §§ 0, 2.
58. See GPLV1, supra note 17, § 2; GPLV2, supra note 52; GPLV3, supra note 53, §§ 5, 6.
59. See GPLV1, supra note 17, §§ 1, 3; GPLV2, supra note 52; GPLV3, supra note 53, §§ 4, 6.
60. See Jacobsen v. Katzer, 535 F.3d 1373, 1379-83 (Fed. Cir. 2008) (copying of FOSS work without complying with the terms of the governing license, if proved, would constitute infringement of copyright); Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc., 421 F.3d 1307, 1316 (Fed. Cir. 2005) (copyright infringement results if otherwise infringing activity occurs without the copyright holder's authorization); ITOFCA, Inc. v. MegaTrans Logistics, Inc., 322 F.3d 928, 940 (7th Cir. 2003) ("A licensee infringes the owner's copyright if its use exceeds the scope of its license." (internal quotation marks and citations omitted)); Graham v. James, 144 F.3d 229, 237 (2d Cir. 1998) ("'[i]f the nature of a licensee's violation consists of a failure to satisfy a condition to the license it follows that the rights dependent upon satisfaction of such condition have not been effectively licensed, and therefore, any use by the licensee is without authority from the licensor and may therefore, constitute an infringement of copyright.'" (citation omitted)); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989). See generally GPLv3, supra note 53, § 9 ("nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License.").
61. See, e.g., GPLv3, supra note 53, §§ 4, 5 (requiring information about the license to be conveyed with any verbatim or modified copies of the licensed work distributed by the licensee).
62. See id. § 6.
63. See RICHARD M. STALLMAN, What is Copyleft?, in FREE SOFTWARE, FREE SOCIETY, supra note 47, at 89.
64. GPLV3, supra note 53, § 5(c). For earlier versions of the GPL's "copyleft" condition, see GPLV1, supra note 17, § 2(b) ("You may modify your copy and copy and distribute such modifications, provided that you also cause the whole of any work that you distribute or publish, that in whole or in part contains the Program or any part thereof, either with or without modifications, to be licensed at no charge to all third parties under the terms of this License (except that you may choose to grant warranty protection to some or all third parties, at your option)."); GPLV2, supra note 52, § 2(b) ("You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."). For a discussion of the interaction of the GPL's copyleft condition with the license provisions requiring programmers to make source code available, see John Tsai, For Better or Worse: Introducing the GNU General Public License Version 3, 23 BERKELEY TECH. L.J. 547, 564-68 (2008).
65. See GPLV3, supra note 53, pmbl. ("The licenses for most software and other practical works are designed to take away your freedom to share and change the works. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change all versions of a program-to make sure it remains free software for all its users.").
66. See James Grimmelmann, The Ethical Visions of Copyright Law, 77 FORDHAM L. REV. 2005, 2028 (2009) ("the GPL makes you share source code because someone else shared it with you free software licenses in general are incompatible with the default ethical vision of commercial exchange, and copyleft licenses go further by restraining downstream authors from taking part in the commercial exchange system as well"); cf. Dov Greenbaum, Academia to Industry Technology Transfer: An Alternative to the Bayh-Dole System for Both Developed and Developing Nations, 19 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 311, 404 (2009) (recognizing "legitimate concerns that viral or infectious terms in an exclusive license may serve as a disincentive to license").
67. See, e.g., Dennis M. Kennedy, A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and Copyfuture, 20 ST. LOUIS U. PUB. L. REV. 345, 362-63 (2001); Ron Phillips, Deadly Combinations: A Framework for Analyzing the GPL's Viral Effect, 25 J. MARSHALL J. COMPUTER & INFO. L. 487 (2008); Greg R. Vetter, "Infectious" Open Source Software: Spreading Incentives or Promoting Resistance?, 36 RUTGERS L.J. 53 (2004); cf. Kumar, supra note 50, at 9 (criticizing labels like "viral" and "infectious" as resting on a misunderstanding of the GPL).
68. See, e.g., Charles Fried, The Nature and Importance of Liberty, 29 HARV. J.L. & PUB. POL'Y 3, 5-6 (2005) (quoting language traditionally used at Harvard Law School's graduation ceremony).
69. See BENKLER, supra note 11, at 63-65; WEBER, supra note 9, at 85 ("Open source intellectual property aims at creating a social structure that expands, not restricts, the commons" and "promises to ratchet up the process over time as a 'commons' of raw materials grows"); Eric E. Johnson, Rethinking Sharing Licenses for the Entertainment Media, 26 CARDOZO ARTS & ENT. L.J. 391, 404-05 (2008). See generally STALLMAN, supra note 47.
70. See, e.g., Ronald J. Mann, Commercializing Open Source Software: Do Property Rights Still Matter?, 20 HARV. J.L. & TECH. 1, 16 (2006); Christian H. Nadan, Open Source Licensing: Virus or Virtue?, 10 TEX. INTELL. PROP. L.J. 349, 359 (2002) ("requiring that any derivative works of GPL code also be covered by the GPL seems reasonable, since but for the GPL license, the user would have no rights to create the derivative works in the first place"); Tsai, supra note 65, at 551.
71. GPLV3, supra note 53, § 8 ("Any attempt to propagate or modify" a GPL-licensed work except as expressly provided under the GPL "is void, and will automatically terminate your rights under this License"); see also GPLV1, supra note 17, § 4; GPLV2, supra note 52, § 4.
72. See Robert W. Gomulkiewicz, Conditions and Covenants in License Contracts: Tales from a Test of the Artistic License, 17 TEX. INTELL. PROP. L.J. 335, 352 n.127 (2009) ("the best reading of this provision is that it is simply a garden variety termination provision, providing that in the event the licensee breaches the license contract, the licensee has no further rights to exercise the rights granted in the license grant provisions"); Tsai, supra note 65, at 578 (ex- plaining that GPLv3 introduced new opportunities for defaulting users to avoid termination by curing default).
73. GPLV3, supra note 53, § 2 (emphasis added). Earlier versions of the GPL were silent on this point. See Kennedy, supra note 68, at 373.
74. SHIRKY, supra note 11, at 273.
75. See Robert W. Gomulkiewicz, De-bugging Open Source Software Licensing, 64 U. PITT. L. REV. 75, 83-84 (2002) ("The GPL makes creative use of a contract to reverse the copyright monopoly by permanently giving away the exclusive rights of a copyright holder, what Stallman whimsically calls 'copyleft.'"); Johnson, supra note 70, at 404 ("The GPL dedicates software in perpetuity to a regime in which it must be shared with others."); Daniel B. Ravicher, Facilitating Collaborative Software Development: The Enforceability of Mass- Market Public Software Licenses, 5 VA. J.L. & TECH. 11, 67 (2000) (Copyleft condition "achieves the goal of ensuring that all copies or modifications of the program are forever publicly licensed"); Mitchell L. Stoltz, Note, The Penguin Paradox: How the Scope of Derivative Works in Copyright Affects the Effectiveness of the GNU GPL, 85 B.U. L. REV. 1439, 1475 (2005) ("The GPL guarantees that source code will be perpetually available, and this guarantee is an important part of GPL software's commercial value."). This is certainly how the GPL has been understood within the FOSS community. See, e.g., Jay Michaelson, There's No Such Thing as a Free (Software) Lunch: What Every Developer Should Know About Open Source Licensing, QUEUE, May 2004, at 41, 42 ("GPL partisans like to call it a 'protective license' because it ensures that code covered by it will remain open source forever."); Chris Maxcer, Free Software Licensing, Part 2: Beyond GPL, LINUX INSIDER, July 27, 2007, http:// www.linuxinsider.com/story/58530.html ("Basically, though, GPL v2 and v3's key point is to make the code 'free forever.'"). 77 See FSF, GNU LESSER GENERAL PUBLIC LICENSE, VERSION 3 (2007), available at http:// www.gnu.org/licenses/lgpl.html [hereinafter LGPLV3]. The Preamble of the current version of the LGPL states, in part, that "[t]his version of the GNU Lesser General Public License incorporates the terms and conditions of version 3 of the GNU General Public License, supplemented by the additional permissions listed" in the remainder of the LGPL. LGPLV3, supra, pmbl. Use of the LGPL is presently discouraged by the license's drafters; the Free Software Foundation suggests that FOSS authors use the GPL instead, unless a compelling reason for adopting the LGPL exists. See FSF, WHY YOU SHOULDN'T USE THE LESSER GPL FOR YOUR NEXT LIBRARY (2007), available at http://www.gnu.org/licenses/why-not-lgpl.html [hereinafter WHY YOU SHOULDN'T USE THE LGPL].
76. "Dynamic linking" refers to a software development technique that makes the functionality of a library accessible to an application program while running without actually copying the library's object code into the application's object code. See Stoltz, supra note 76, at 1449. Dynamic linking is believed to offer some technical advantages because the library may be updated separately from the application programs that rely on it and its improved functionality made available to all application programs that link to the library without requiring the applications themselves to be updated. See id. at 1449-50.
77. See, e.g., Carver, supra note 55, at 459-60; Lothar Determann, Dangerous Liaisons- Software Combinations as Derivative Works?: Distribution, Installation, and Execution of Linked Programs Under Copyright Law, Commercial Licenses, and the GPL, 21 BERKELEY TECH. L.J. 1421, 1488 & n.255 (2006) (same); Dusollier, supra note 8, at 1418 (noting this benefit, although questioning the LGPL's premise that dynamic linking creates a derivative work); Stoltz, supra note 76, at 1452. But cf. WHY YOU SHOULDN'T USE THE LGPL, supra note 77 (encouraging FOSS developers to release software libraries under the GPL rather than the LGPL precisely to forbid proprietary software works from linking to the library).
78. See WEBER, supra note 9, at 29-35, 39-42. Legal threats from AT&T in the 1990s, culminating in a lawsuit against the University of California, slowed the pace of BSD development. Id. at 49-52; see also David McGowan, Between Logic and Experience: Error Costs and United States v. Microsoft Corp., 20 BERKELEY TECH. L.J. 1185, 1204-07 (2005) (recounting history of BSD).
79. A BSD-style license template is available at http://www.opensource.org/licenses/bsdlicense. php (last visited Mar. 4, 2010) [hereinafter BSD License]. As there noted, the particular provisions of the BSD license and its variant forms have changed over time, although in ways that are largely not pertinent to the present analysis. BSD licensing is widely used in FOSS projects, although less commonly than the GPL and LGPL. See supra note 50 and accompanying text. The "three-clause" standard-form BSD-style license described herein meets both OSI's Open Source Definition and the FSF's definition of "free software." See supra note 48. A "four-clause" variant, seldom employed today, is not compatible with the FOSS definitions of either OSI or FSF. See infra note 84.
80. BSD License, supra note 81 (providing notice of the form "Copyright (c),. All rights reserved."). "" and "" represent variables that are to be replaced with the values appropriate for the licensed work when the work is distributed. Express copyright notices of this type are no longer required as a condition of copyright protection, but are permitted, under U.S. and international copyright law. See infra note 171 and accompanying text.
81. BSD License, supra note 81.
82. See id. This last requirement is omitted from the "Simplified BSD License," a variant used by some BSD-derived projects. Id. A former version of the BSD License included a fourth condition, the so-called "advertising clause," requiring the crediting of the University of California-Berkeley in advertising materials for any BSD-derived product. This clause was deleted from the standard-form BSD license in 1999, leaving the three conditions stated in the text. See id.
83. See, e.g., Phillips, supra note 68, at 490; Greg R. Vetter, Commercial Free and Open Source Software: Knowledge Production, Hybrid Appropriability, and Patents, 77 FORDHAM L. REV. 2087, 2096, 2097-98 (2009); cf. Zittrain, supra note 9, at 269 ("The BSD license materially differs from a wholly public domain release only in that it requires a particular kind of credit or attribution for the original author on whose work the new program is based."). For a discussion of the reputational interests of authors of BSD-licensed software projects, see Catherine L. Fisk, Credit Where It's Due: The Law and Norms of Attribution, 95 GEO. L.J. 49, 90-91 (2006). Labeling BSD-style licenses as "attribution-only" seems to misapprehend the significance of the license's third clause, which requires nonattribution in situations where crediting the owner's organization would carry an implication of endorsement. Cf. Jane C. Ginsburg, The Author's Place in the Future of Copyright, 45 WILLAMETTE L. REV. 381, 391 (2009) (noting reputational interests of FOSS authors in not being associated with later users' "ill-conceived or badly-executed changes to the underlying program.").
84. BSD License, supra note 81; cf. supra notes 64-71 and accompanying text.
85. See David S. Evans & Anne Layne-Farrar, Software Patents and Open Source: The Battle over Intellectual Property Rights, 9 VA. J.L. & TECH. 10, ¶ 22 (2004).
86. See James Gibson, Once and Future Copyright, 81 NOTRE DAME L. REV. 167, 203 (2005); Fabrizio Marrella & Christopher S. Yoo, Is Open Source Software the New Lex Mercatoria?, 47 VA. J. INT'L L. 807, 823 (2007); Phillips, supra note 68, at 490; Vetter, supra note 85, at 2097-98.
87. See supra notes 82-85 and accompanying text.
88. See supra notes 58-65 and accompanying text.
89. See Josh Lerner & Jean Tirole, The Scope of Open Source Licensing, 21 J.L. ECON. & ORG. 20, 22 (2005) (labeling BSD-style licenses "unrestrictive," the LGPL "restrictive," and the GPL "highly restrictive"). Bruce Perens, a software developer and influential advocate in the FOSS community, labels these three licensing paradigms "gift" (BSD), "sharing with rules" (GPL), and "in-between" (LPGL). See Perens, supra note 31. Perens actually cites the Apache License, version 2.0, not the BSD license, as the paradigmatic "gift license." The Apache License differs from BSD-style licenses in a number of respects that are unimportant for present purposes.
90. See infra Part II.C.
91. See, e.g., Adam Kubelka & Matthew Fawcett, No Free Beer-Practice Tips for Open Source Licensing, 22 SANTA CLARA COMPUTER & HIGH TECH. L.J. 797, 813 (2006) ("[r]egardless of which type of license is applicable, all licenses contain downstream obligations on distributors."); Michael J. Madison, Reconstructing the Software License, 35 LOY. U. CHI. L.J. 275, 287 (2003) (characterizing software license as "a soup-to-nuts statement of the scope of legitimate behavior by a user or consumer of that software"); Van Houweling, supra note 31, at 935-39 (noting that software licenses often aim to constrain behaviors that copy- right law leaves unregulated).
92. As one of the leading minds behind the GPLv3, supra note 53, explained: 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." Eben Moglen, Freeing the Mind: Free Software and the Death of Proprietary Culture, 56 ME. L. REV. 1, 6 (2004).
93. In Professor Moglen's words: The GPL says: We construct a protected commons, in which by a trick, an irony, the phenomena of commons are adduced through the phenomena of copyright, restricted ownership is employed to create non-restricted self-protected commons It says: "Take this software; do what you want with it-copy, modify, redistribute. But if you distribute, modified or unmodified, do not attempt to give anybody to whom you distribute fewer rights than you had in the material with which you began. Have a nice day!" Moglen, supra note 94, at 6. For a discussion of a few (largely inconclusive) cases in which the plaintiff relied on violation of the GPL as support for its claim of copyright infringement, see Clark D. Asay, The General Public License Version 3.0: Making or Breaking the FOSS Movement?, 14 MICH. TELECOMM. & TECH. L. REV. 265, 285 & nn.86-87 (2008); Joseph B. Baker, Note, Contracting to Supplement Fair Use Doctrine, 39 U. MEM. L. REV. 757, 788-89 (2009); Brad Frazer, Open Source is Not Public Domain: Evolving Licensing Philosophies, 45 IDAHO L. REV. 349, 372-73 (2009); Vetter, supra note 10, at 299-300 & n.66; Jason B. Wacha, Taking the Case: Is the GPL Enforceable?, 21 SANTA CLARA COMPUTER & HIGH TECH. L.J. 451, 470 (2005).
94. See infra Part III.A.1 (discussing evolution of copyright default rules-that is to say, the rules that apply absent agreement by the affected parties). For an argument that some of copyright's default rules are not subject to alteration by private agreement, see Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 CAL. L. REV. 111, 141-42 (1999) (citing the statute's provision on termination of transfers as an example of an unalterable default rule).
95. See BENKLER, supra note 11, at 439-44 (noting both legislative and judge-made expan- sions of property rights in copyrighted works); LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 130-39 (2004).
96. See supra note 61 and accompanying text.
97. See BENKLER, supra note 11, at 65 ("the legal jujitsu Stallman used [in the GPL]- asserting his own copyright claims, but only to force all downstream users who wanted to rely on his contributions to make their own contributions available to everyone else-came to be known as 'copyleft,' an ironic twist on copyright"); WEBER, supra note 9, at 85; Gomulkiewicz, supra note 76, at 83-84; Moglen, supra note 94, at 6. As others have noted, the construction of a commons sometimes fits awkwardly within the proprietary default regime of copyright law. See, e.g., Vetter, supra note 85, at 2108 ("While the core ideas of free software are relatively straightforward, the use of intellectual property law to implement those 'freedoms' is circuitous"). It is precisely for that reason that some have proposed amending the copyright statute to provide firmer legal footing for open-content works. See Merges, supra note 41, at 201-02; Adrienne K. Goss, Note, Codifying a Commons: Copyright, Copyleft, and the Creative Commons Project, 82 CHI.-KENT. L. REV. 963, 992-94 (2007); see also infra Part V.
98. See supra note 94 and accompanying text.
99. FSF, GNU FREE DOCUMENTATION LICENSE, VERSION 1.1 (2000), available at http:// www.gnu.org/licenses/old-licenses/fdl-1.1.html [hereinafter GFDLV1.1]. Although the label "Version 1.1" might imply the existence of an antecedent "Version 1.0," in fact Version 1.1 was the first version of the GFDL released to the public. Id.
100. See FSF, GNU FREE DOCUMENTATION LICENSE, VERSION 1.2 (2002), available at http:/ /www.gnu.org/licenses/old-licenses/fdl-1.2.html [hereinafter GFDLV1.2]; see also, e.g., Andres Guadamuz Gonzalez, Open Science: Open Source Licenses in Scientific Research, 7 N.C. J.L. & TECH. 321, 343-44 (2006) (discussing several provisions of the GFDLv1.2).
101. See FSF, GNU FREE DOCUMENTATION LICENSE, VERSION 1.3 (2008), available at http:/ /www.gnu.org/licenses/fdl.html [hereinafter GFDLV1.3]. This revision of the GFDL was commonly referred to as "GFDL Version 2" or "GFDL 2.0" during discussions leading up to the revision, and such references to the license of that type are still available online. See, e.g., FSF, FDLV2: FIRST DISCUSSION DRAFT (2006), available at http://gplv3.fsf.org/fdl-draft-2006- 09-22.html. According to the FSF, work is continuing on a future revision of the GFDL, still slated to be called "Version 2.0." See FSF, FDL 1.3 FAQ, http://www.gnu.org/licenses/fdl-1.3- faq.html (last visited May 4, 2008) [hereinafter GFDL 1.3 FAQ].
102. See GFDLV1.3, supra note 103, § 9; see also infra notes 119-22 and accompanying text.
103. See GFDLV1.3, supra note 103, § 11; see also infra notes 141-47 and accompanying text.
104. See GFDLV1.3, supra note 103, § 0 ("We have designed this License in order to use it for manuals for free software [b]ut this License is not limited to software manuals; it can be used for any textual work We recommend this License principally for works whose purpose is instruction or reference."). The principles underlying the GFDL are expounded in RICHARD M. STALLMAN, Free Software Needs Free Documentation, in FREE SOFTWARE, FREE SOCIETY, supra note 47, at 67.
105. GFDLV1.3, supra note 103, §§ 2-3.
106. Id. § 4.
107. Id. §§ 2-3.
108. Id. § 2.
109. Id. § 4.
110. Id. § 4(B).
111. Id. § 4(E).
112. Id. § 4(A).
113. Id. § 4(D) (forbidding modification of prior versions' copyright notices), (G) (requiring verbatim reproduction of lists of invariant sections and required cover texts), (I)-(K) (requiring preservation of other identified sections as they appeared in prior versions of the work), (O) (requiring preservation of any disclaimers of warranty that appeared in prior versions of the work).
114. Id. §§ 1 (defining "Invariant Sections"), 4(L) (requiring that modified versions of the work "[p]reserve all the Invariant Sections of the Document, unaltered in their text and in their titles."). These provisions limit the scope of derivative works that may be produced from GFDL-licensed content by specifying that certain portions of the original work must be reproduced without modification in any derivative works. For an explanation of the limited reach this provision was intended to have, see STALLMAN, supra note 47, at 68; see also GFDLV1.3, supra note 103, § 1 (explaining, in definition of "Secondary Section," that the portions of documents authors are allowed to designate as "invariant" must "contain[ ] nothing that could fall directly within th[e] overall subject" matter addressed by the document's text).
115. GFDLV1.3, supra note 103, § 4(F).
116. Id. § 4(H). For a suggestion that this requirement may inhibit widespread adoption of the GFDL, see Niva Elkin-Koren, What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons, 74 FORDHAM L. REV. 375, 413 (2005).
117. GFDLV1.3, supra note 103, § 9 ("You may not copy, modify, sublicense, or distribute the Document except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense, or distribute it is void, and will automatically terminate your rights under this License."). The 2008 revisions of the GFDL added new language to the "termination" provision, adapted from language introduced in the GPLv3, permitting users of GFDL-licensed content to cure their default via specified means and reinstate the rights granted under the license. Compare id., with GFDLV1.2, supra note 102, § 9. See also supra notes 72-73 and accompanying text.
118. GFDLV1.3, supra note 103, § 1.
119. See supra note 74 and accompanying text.
120. See infra note 147 and accompanying text.
121. See GFDLV1.3, supra note 103, § 1 (defining these and other related terms).
122. Cf. 17 U.S.C. § 101 (2006) (defining "literary works").
123. See Creative Commons, What is CC?, http://creativecommons.org/about/what-is-cc (last visited Apr. 2, 2010).
124. Posting of Lawrence Lessig to Commons News, http://creativecommons.org/weblog/ entry/5661 (Oct. 6, 2005); see also Lawrence Lessig, The Creative Commons, 55 FLA. L. REV. 763 (2003) (sketching out philosophy behind the project).
125. To be sure, its innovations in licensing instruments may not be the most important contribution of the Creative Commons project; much like the broader FOSS movement, Creative Commons is as much a social initiative aimed at shifting public norms surrounding the reuse of expressive content as a purely legal organization. See, e.g., BENKLER, supra note 11, at 455-56; Jennifer E. Rothman, The Questionable Use of Custom in Intellectual Property, 93 VA. L. REV. 1899, 1930 (2007) ("Ultimately, the Creative Commons is more of a social movement than an alternative IP regime."). For a slightly skeptical view of the Creative Commons project from a strong property-rights perspective, however, see Merges, supra note 41, at 196-200.
126. See Creative Commons, License Your Work, http://creativecommons.org/about/license/ (last visited Apr. 2, 2010) [hereinafter License Your Work].
127. See Johnson, supra note 70, at 412-13 (explaining requisites of required attribution). The Creative Commons organization initially promulgated a set of licenses that omitted the attribution requirement, and indeed, those licenses remain available (albeit difficult to locate) on the organization's web site. See Creative Commons, Retired Licenses, http://creativecommons. org/retiredlicenses (last visited Mar. 29, 2010). The organization ceased offering (or updating) the non-attribution varieties upon discovering that virtually all licensors were selecting the Attribution variants. See Fisk, supra note 85, at 91 (noting that it remains possible to disclaim the default attribution requirement); Greg Lastowka, Digital Attribution: Copyright and the Right to Credit, 87 B.U. L. REV. 41, 79-81 (2007) (describing Creative Commons organization's decision to withdraw non-attribution license variants); accord Abraham Bell & Gideon Pachomovsky, The Evolution of Private and Open Access Property, 10 THEORETICAL INQUIRIES L. 77, 97 (2009) (noting that Creative Commons licenses preserve some incidents of private property ownership insofar as "most content owners insist on receiving attribution from users"); Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 CAL. L. REV. 1331, 1361 (2004) (offering empirical support for this proposition); Zachary Katz, Pitfalls of Open Licensing: An Analysis of Creative Commons Licensing, 46 IDEA 391, 411 & app. A (2006) (same).
128. See License Your Work, supra note 128. The listing in the text arrays the licenses roughly in increasing order of restrictiveness. See, e.g., Goss, supra note 99, at 978; Maritza Schaeffer, Note, Contemporary Issues in the Visual Art Realm: How Useful are Creative Commons Licenses?, 17 J.L. & POL'Y 359, 385-87 (2008). Like the GNU GPL and the other licenses considered previously, the text of the Creative Commons licenses has been amended from time to time, with each amended version being assigned a revision number to differentiate it from its predecessors. When referring to works published under a Creative Commons license, it is customary to note the applicable version number of the license. See, e.g., Peter W. Martin, Reconfiguring Law Reports and the Concept of Precedent for a Digital Age, 53 VILL. L. REV. 1, 1 n.(2008) ("This work is licensed under the Creative Commons Attribution- Noncommercial-ShareAlike 3.0 License."). 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. See, e.g., Timothy K. Armstrong, Fair Circumvention, 74 BROOK. L. REV. 1 (2008) (adopting BY-SA-3.0-US license).
129. See OECD, supra note 45, at 24 ("figures show that there are at least 200 million pieces of content on the Internet that are under various Creative Commons licenses (as counted by the number of 'link-backs' to these licenses on the Internet as tracked by Google)").
130. To be more precise, a party wishing to make a commercial use of a work licensed under one of the Creative Commons "NC" variants must seek dual licensing of the work from the copyright holder upon terms that allow such use. See Creative Commons, Frequently Asked Questions - CC Wiki, http://wiki.creativecommons.org/FAQ (last visited Apr. 2, 2010) ("You can always approach the licensor directly to see if they will separately license you the commercial rights."); supra note 31 and accompanying text (discussing dual licensing).
131. See R. Polk Wagner, Information Wants to be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REV. 995, 1032-33 (2003) (arguing that Creative Commons licenses are effective in effectuating licensors' specific intent precisely because they emerge against a background of strong proprietary rights for the licensor).
132. The influence of law professor Lawrence Lessig, a co-founder of Creative Commons and the progenitor of the "code is law" meme, is readily apparent in the choice of the label "legal code." See LESSIG, supra note 49, at 1-8.
133. For example, the "legal code" for the Creative Commons Attribution-Share Alike-3.0- United States license is available at http://creativecommons.org/licenses/by-sa/3.0/us/legalcode (last visited Mar. 4, 2010) [hereinafter CC BY-SA-3.0-US Legal Code]. See also S'everine Dusollier, The Master's Tools v. The Master's House: Creative Commons v. Copyright, 29 COLUM. J.L. & ARTS 271, 276 (2006) ("The Legal Code is a lengthy contract with numerous detailed provisions that can be legally enforced").
134. See Schaeffer, supra note 130, at 385.
135. See id.
136. See supra notes 72-73 and accompanying text.
137. CC BY-SA-3.0-US Legal Code, supra note 135, § 7(a). Identical language appears in the same location in the "legal code" for each of the six standard licenses.
138. Id. § 7(b); cf. supra note 72 and accompanying text.
139. Wikipedia, http://www.wikipedia.org/ (last visited Mar. 29, 2010). As of March 2010, the billion-word corpus of the English-language version of Wikipedia was approximately twenty-five times the size of the Encyclopædia Britannica, as measured only by estimated word counts-a statistic that excludes, for example, the rich graphic and tabular material unique to Wikipedia and its sister Wikimedia Foundation sites. See Wikipedia, Size Comparisons, http://en.wikipedia.org/wiki/Wikipedia:Size_comparisons (last visited Apr. 2, 2010).
140. See ANDREW LIH, THE WIKIPEDIA REVOLUTION: HOW A BUNCH OF NOBODIES CREATED THE WORLD'S GREATEST ENCYCLOPEDIA 72-73 (2009); see also supra notes 101-22 and ac- companying text (discussing the GFDL).
141. WMF, Resolution: License Update, http://wikimediafoundation.org/wiki/Resolution: License_update (last visited Apr. 2, 2010).
142. See GFDL 1.3 FAQ, supra note 103; GFDLV1.3, supra note 103, § 11; see also LIH, supra note 142, at 212 (anticipating this development).
143. See Wikimedia Meta-Wiki, Licensing Update/Result, http://meta.wikimedia.org/wiki/ Licensing_update/Result (last visited Apr. 2, 2010) (reflecting over seventy-five percent support for proposed relicensing and only ten percent opposition, among the over seventeen thousand valid votes). The author participated in the vote (in his role as a contributor to the English-language Wikisource project, a sister site of Wikipedia) and voted in favor of the relicensing proposal.
144. See Press Release, WMF, Wikimedia Foundation Announces Important Licensing Change for Wikipedia and Its Sister Projects (May 21, 2009), available at http:// wikimediafoundation.org/wiki/Press_releases/Dual_license_vote_May_2009. 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. See, e.g., Dusollier, supra note 8, at 1425-27; Elkin- Koren, supra note 118, at 412-13; Van Houweling, supra note 31, at 942.
145. See Wikipedia, http://en.wikipedia.org (last visited Mar. 29, 2010) (emphasis added). Go ahead, try it. You'll see.
146. See BENKLER, supra note 11, at 92-99 (noting that economic models of behavior uni- formly tend to oversimplify complexities underlying human action); WEBER, supra note 9, ch. 5 (attempting to disentangle collective from individual motivations); Andrew George, Note, Avoiding Tragedy in the Wiki-Commons, 12 VA. J.L. & TECH. 8, ¶¶ 9-34 (2007) (focusing particularly on various motivations of contributors to Wikipedia); Karim R. Lakhani & Robert G. Wolf, Why Hackers Do What They Do: Understanding Motivation and Effort in Free/Open Source Software Projects, in PERSPECTIVES ON FREE AND OPEN SOURCE SOFTWARE 3 (Joseph Feller et al., eds., 2005); Katherine J. Strandburg, Evolving Innovation Paradigms and the Global Intellectual Property Regime, 41 CONN. L. REV. 861, 871 & n.37 (2009) (noting relatively weak role of traditional economic incentives in peer production).
147. See WEBER, supra note 9, at 134-35; George, supra note 148, ¶¶ 12-15.
148. See WEBER, supra note 9, at 139-40; George, supra note 148, ¶¶ 19-20.
149. BENKLER, supra note 11, at 94 ("there will be some acts that a
150. See RAYMOND, supra note 47, at 100-02.
151. Jyh-An Lee, New Perspectives on Public Goods Production: Policy Implications of Open Source Software, 9 VAND. J. ENT. & TECH. L. 45, 53-55 (2006); George, supra note 148, ¶¶ 16-18. But see WEBER, supra note 9, at 131 (identifying several aspects of peer production that tend to weigh against altruism as a primary motivating factor).
152. See supra notes 72-74, 120, 140 and accompanying text.
153. Although copyright is now a domain of exclusive federal jurisdiction, see 17 U.S.C. § 301 (2006), parallel systems of federal and state copyright protection existed until the Copyright Act of 1976. A discussion of state copyright systems is outside the scope of the present work.
154. See NEIL WEINSTOCK NETANEL, COPYRIGHT'S PARADOX 54-55 (2008) (observing that early formal requirements imposed "nontrivial" burdens).
155. See Copyright Act of 1909, ch. 320, §§ 9 (notice), 10 (registration), 12 (deposit), 35 Stat. 1075. This listing admittedly simplifies the complex history of formal requirements for copyright protection in the United States. For the unsimplified version, see 3 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 6:3 (2009). By referring to the formalities necessary for copyright protection to attach, this Article purposefully elides the formalities that continue to exist under U.S. law for other purposes, such as the requirement to register before bringing suit for copyright infringement. See 17 U.S.C. § 411 (2006 & Supp. II 2008); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010) (construing pre-filing registration requirement as nonjurisdictional).
156. See, e.g., Mifflin v. R.H. White Co., 190 U.S. 260 (1903) (failure of notice requirement); Holmes v. Hurst, 174 U.S. 82 (1899) (failure of deposit requirement); Thompson v. Hubbard, 131 U.S. 123, 148-51 (1889) (notice in improper form); Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 665-68 (1834) (failure of deposit and publication of notice requirements); Atl. Monthly Co. v. Post Pub. Co., 27 F.2d 556, 559 (D. Mass. 1928) (failure of notice requirement). But cf. Washingtonian Pub. Co., Inc. v. Pearson, 306 U.S. 30, 37-40 (1939) (holding that, under Copyright Act of 1909, failure to comply with deposit requirement did not invalidate copyright).
157. See, e.g., Pub. Affairs Assocs. v. Rickover, 369 U.S. 111, 117-18 (1962) (Warren, C.J., dissenting); Donald Frederick Evans & Assocs. v. Cont'l Homes, Inc., 785 F.2d 897, 912 (11th Cir. 1986); Cooling Syst. & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 489 (9th Cir. 1985); Data Cash Sys., Inc. v. JS&A Group, 628 F.2d 1038, 1042 (7th Cir. 1980); Deward & Rich v. Bristol Sav. & Loan Corp., 120 F.2d 537, 540 (4th Cir. 1941); cf. Goodis v. United Artists Television, Inc., 278 F. Supp. 122, 125 (S.D.N.Y. 1968), rev'd, 425 F.2d 397 (2d Cir. 1970).
158. Pub. L. No. 94-553, § 102, 90 Stat. 2541, 2598 (1976) (codified at note preceding 17 U.S.C. § 101).
159. U.S.C. § 102(a); see also H.R. REP. NO. 94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 (explaining that fixation of work in a tangible medium "represents the dividing line between common law and statutory protection"); id. at 130 ("the statute would apply to all works created after its effective date, whether or not they are ever published or disseminated").
160. See 17 U.S.C. §§ 401-404 (1988).
161. See id. § 407.
162. H.R. REP. NO. 94-1476, at 146.
163. See 17 U.S.C. § 407(a) (2008).
164. See id. § 405; see also, e.g., M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 443-44 (4th Cir. 1986) (finding that plaintiff took adequate steps to cure deficiencies in copyright notice).
165. H.R. REP. NO. 94-1476, at 143 (justifying cure provisions as necessary to prevent "arbitrary and unjust forfeitures resulting from unintentional or relatively unimportant omissions or errors in the copyright notice").
166. See, e.g., Harris Custom Builders, Inc. v. Hoffmeyer, 92 F.3d 517, 520 (7th Cir. 1996); Princess Fabrics, Inc. v. CHF, Inc., 922 F.2d 99, 102-03 (2d Cir. 1990); Canfield v. Ponchatoula Times, 759 F.2d 493, 499 (5th Cir. 1985). Thus, authors who affirmatively desired to opt out of the federal system of copyright protection, and place their works in the public domain, could do so by purposefully failing to cure deficient formalities.
167. Pub. L. No. 100-568, § 13(a), 102 Stat. 2853, 2861 (1988) (codified at note following 17 U.S.C. § 101 (2006)).
168. Id. § 2(3), 102 Stat. at 2853 (declaring that "[t]he amendments made by this Act, together with [existing law] satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose."); Convention for the Protection of Literary and Artistic Works, § 5(2), opened for signature Sept. 9, 1886, 6 U.S.T. 2731 ("[t]he enjoyment and exercise of [copyright] rights shall not be subject to any formality").
169. Pub. L. No. 100-568, § 7(a)(2), 102 Stat. at 2857 (codified at 17 U.S.C. § 401(a)); id. § 7(b)(2), 102 Stat. at 2858 (codified at 17 U.S.C. § 402(a)).
170. Id. § 7(e)(1), 102 Stat. at 2858 (codified at 17 U.S.C. § 405(a)).
171. See Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 48 (5th Cir. 1995).
172. See Morgan v. Hawthorne Homes, Inc., 2009 WL 1010476, at7 (W.D. Pa. Apr. 14, 2009) ("Each of the eight plans at issue were published after March of 1989, and therefore any omission of notice does not result in forfeiture and provides no basis for finding that Plaintiff does not have a valid copyright in the eight plans."); Sadhu Singh Hamdad Trust v. Ajit Newspaper Adver., Mktg., & Commc'ns, Inc., 503 F. Supp. 2d 577, 587 n.15 (E.D.N.Y. 2007) ("works first published after March 1, 1989 need not bear a notice of copyright to attain copyright protection"); Innovative Networks, Inc. v. Satellite Airlines Ticketing Ctrs., Inc., 871 F. Supp. 709, 720 (S.D.N.Y. 1995) ("affixing notice is no longer mandatory for works first published after March 1, 1989").
173. See Tom W. Bell, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. CIN. L. REV. 741, 743-44 (2001) ("Each new version of the Copyright Act has awarded longer, broader, and more powerful legal protection to expressive works." (footnotes omitted)).
174. See id. at 742 ("Copyright law, originally excused as a necessary evil, now threatens to become an inescapable burden." (footnotes omitted)).
175. See infra Part IV.A.
176. Under the Copyright Act of 1909, the initial term of protection for a validly acquired copyright was twenty-eight years, following which a renewal application for a second term (also of twenty-eight years) could be filed. See Act of March 4, 1909, ch. 320, § 23, 35 Stat. 1075, 1080 (codified at 17 U.S.C. § 24 (1976)). Failure to renew the copyright at the end of the initial twenty-eight-year term of protection placed the work in the public domain. See id. ("in default of application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication"); see also G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir. 1951); Hoepker v. Kruger, 200 F. Supp. 2d 340, 345 (S.D.N.Y. 2002); Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 923 F. Supp. 1231, 1241 (N.D. Cal. 1995); Int'l Film Exch., Ltd. v. Corinth Films, Inc., 621 F. Supp. 631, 635 (S.D.N.Y. 1985). Vestiges of the two-term copyright framework that existed under the 1909 Act and earlier federal copyright statutes survive today in 17 U.S.C. § 304 (2006).
177. The 1976 Act created a single fixed copyright term for all works fixed in a tangible medium of expression on or after January 1, 1978, consisting of the life of the author plus fifty years. See 17 U.S.C. § 302(a) (1976) (amended 1998). The life-plus-fifty copyright term was extended to life-plus-seventy in 1998, when Congress extended by twenty years the duration of all copyrights then in force. See 17 U.S.C. § 302(a) (2000); Eldred v. Ashcroft, 537 U.S. 186 (2003).
178. See supra notes 171-74 and accompanying text.
179. See infra notes 331-36 and accompanying text.
180. See generally STEPHEN FISHMAN, COPYRIGHT AND THE PUBLIC DOMAIN 6-1 to 6-20 (2008).
181. See supra note 159; see also, e.g., Sanga Music, Inc. v. EMI Blackwood Music, Inc., 55 F.3d 756, 759-62 (2d Cir. 1995) (finding that a songwriter's "words and actions," such as her approval of the publication of her song without formalities, suggested that she intended to dedicate the work to the public domain); Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1019 (9th Cir. 1985) (describing publication without formalities as involving both "forfeiture" and "abandonment" of copyright); Imperial Homes Corp. v. Lamont, 458 F.2d 895, 898 (5th Cir. 1972) (holding that district court erred in finding abandonment where necessary statutory formalities were observed); Stuff v. E.C. Publ'ns, Inc., 342 F.2d 143, 145 (2d Cir. 1965) (cartoonist's acquiescence in publication of cartoon without formalities amounted to "dedicat[ion] to the public"); Egner v. E.C. Shirmer Music Co., 139 F.2d 398, 399 (1st Cir. 1943) (licensees published work by permission of author without formalities); Nutt v. Nat'l Inst. Inc. for the Improvement of Memory, 31 F.2d 236, 238 (2d Cir. 1929) (oral delivery of lecture before filing of application for copyright did not constitute "publication" of the work without formalities); Werckmeister v. Am. Lithographic Co., 134 F. 321, 326-30 (2d Cir. 1904) (reasoning that public display of painting without notice of copyright did not constitute "publication" of the work without formalities so as to void copyright protection); Falk v. Gast Lithograph & Engraving Co., 54 F. 890, 893 (2d Cir. 1893) (circulation of title cards upon which reduced-size versions of copyrighted photographs were reproduced did not divest copyright in the underlying photographs where title cards omitted any copyright notice); Lopez v. Elec. Rebuilders, Inc., 416 F. Supp. 1133, 1135 (C.D. Cal. 1976) (consent to publication without copyright notice); Jacobs v. Robitaille, 406 F. Supp. 1145, 1149 (D.N.H. 1976); Foreign Car Parts, Inc. v. Auto World, Inc., 366 F. Supp. 977, 979-80 (M.D. Pa. 1973); Rosette v. Rainbo Record Mfg. Corp., 354 F. Supp. 1183, 1188-92 (S.D.N.Y. 1973) (although publishing musical composition in the form of sheet music without observing formalities would have divested copyright, recording of the composition did not do so), aff'd, 546 F.2d 461 (2d Cir. 1976); DeSilva Constr. Corp. v. Herrald, 213 F. Supp. 184 (M.D. Fla. 1962) (publication of architectural plans without observing copyright formalities); McCarthy & Fischer, Inc. v. White, 259 F. 364 (S.D.N.Y. 1919); Higgins v. Keuffel, 30 F. 627, 628 (C.C.S.D.N.Y. 1887).
182. F.2d 594 (2d Cir. 1951).
183. Id. at 598 (footnote omitted). Prior Supreme Court decisions on abandonment of patent rights might have supplied appropriate referents for the court. See infra note 331 and accompa- nying text. Judge Hand's failure to recognize these analytically related authorities, however, may simply reflect the era in which the case arose. It would be some years before the Supreme Court approved the practice of borrowing patent principles when construing the copyright statutes. See infra notes 337-45 and accompanying text.
184. See Fawcett Publ'ns, 191 F.2d at 598 ("[t]here was no evidence in this case of any such an intent" to abandon copyright rights).
185. See, e.g., Dam Things from Den. v. Russ Berrie & Co., 290 F.3d 548, 560 (3d Cir. 2002); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001); Kepner- Tregoe, Inc. v. Vroom, 186 F.3d 283, 288 (2d Cir. 1999); Dodd, Mead & Co. v. Lilienthal, 514 F. Supp. 105, 108 (S.D.N.Y. 1981); Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coop. Prods., Inc., 479 F. Supp. 351, 362 (N.D. Ga. 1979); Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 456 F. Supp. 531, 535 (S.D.N.Y. 1977); L&L White Metal Casting Corp. v. Cornell Metal Specialties Corp., 353 F. Supp. 1170, 1174 (E.D.N.Y. 1972); Nat'l Council of Young Israel, Inc. v. Feit Co., 347 F. Supp. 1293, 1297 (S.D.N.Y. 1972); Marvin Worth Prods. v. Superior Films Corp., 319 F. Supp. 1269, 1273 (S.D.N.Y. 1970); Grove Press, Inc. v. Greenleaf Pub. Co., 247 F. Supp. 518, 527-28 (E.D.N.Y. 1965); cf. Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 483-84 (2d Cir. 2004) (finding that conflicting evidence of intent to abandon precluded summary disposition); Schatt v. Curtis Mgmt. Group, 764 F. Supp. 902, 907-08 (S.D.N.Y. 1991) (same); Rexnord Inc. v. Modern Handling Sys., Inc., 379 F. Supp. 1190, 1199 (D. Del. 1974) (same).
186. See, e.g., Micro Star v. FormGen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) (although overt act representing partial abandonment may have occurred, "abandoning some rights is not the same as abandoning all rights, and FormGen never overtly abandoned its rights to profit commercially"); Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960); John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 186 F. Supp. 2d 1, 24 (D. Mass. 2002); Encyclopaedia Britannica Educ. Corp. v. Crooks, 542 F. Supp. 1156, 1180 (W.D.N.Y. 1982); Filmvideo Releasing Corp. v. Hastings, 426 F. Supp. 690, 695 (S.D.N.Y. 1976) (failure to renew copyright in derivative motion pictures did not constitute an overt act abandoning copyright in the underlying novels on which the motion pictures were based); Rohauer v. Killiam Shows, Inc., 379 F. Supp. 723, 730-31 (S.D.N.Y. 1974), rev'd on other grounds, 551 F.2d 484 (2d Cir. 1977); Judscott Handprints, Ltd. v. Washington Wall Paper Co., 377 F. Supp. 1372, 1378 (E.D.N.Y. 1974); Sw. Bell Tel. Co. v. Nationwide Indep. Directory Serv., Inc., 371 F. Supp. 900, 906 (W.D. Ark. 1974).
187. See, e.g., Paramount Pictures Corp. v. Carol Publ'g. Group, 11 F. Supp. 2d 329, 337 (S.D.N.Y. 1998), aff'd mem., 181 F.3d 83 (2d Cir. 1999); Jackson v. MPI Home Video, 694 F. Supp. 483, 490-91 (N.D. Ill. 1988).
188. F. Supp. 1241 (N.D. Ill. 1975), aff'd, 536 F.2d 164 (7th Cir. 1976).
189. F. Supp. at 1249.
190. F.2d at 170.
191. F. Supp. 1186 (N.D. Ga. 1983), aff'd in part, rev'd in part, 744 F.2d 1490 (11th Cir. 1984).
192. F. Supp. at 1196.
193. F.2d at 1500.
194. See id.
195. See id. at 1498-1500.
196. F. Supp. 2d 1041 (S.D. Iowa 2007).
197. See id. at 1069-70.
198. See id. at 1055-65; see also 17 U.S.C. § 201(b) (2006).
199. F. Supp. 1392 (C.D. Cal. 1990).
200. See id. at 1396 ("'The information contained in this letter is protected by U.S. copyright laws though noon EST on the 2d day after its release[.]'").
201. See id. at 1399.
202. F. Supp. 2d 1148 (S.D. Fla. 2006).
203. Id. at 1154.
204. See id.
205. Id. at 1178.
206. See, e.g., Paramount Pictures Corp. v. Carol Pub. Group, 11 F. Supp. 2d 329, 337 (S.D.N.Y. 1998) ("Defendants invite the Court to boldly go where no court has gone before and recognize the doctrine of limited abandonment. The Court declines the invitation."), aff'd mem., 181 F.3d 83 (2d Cir. 1999). But see Micro Star v. FormGen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) ("abandoning some rights is not the same as abandoning all rights"); FISHMAN, supra note 182, § 6.02[3] (questioning whether rule against limited abandonment still makes sense in view of divisibility of copyright under the 1976 Act).
207. It is for precisely this reason that some authors have suggested altering abandonment doctrine to permit partial, conditional abandonments of rights under copyright. See infra Part IV.A.
208. See also Johnson, supra note 70, at 400 (noting that one consequence of according a work public-domain status is that it may be reused in ways objectionable to its author).
209. See 2 PATRY, supra note 157, § 5:155 ("It is difficult to fathom how, in ordinary circumstances, one can be deemed to have abandoned one's copyright in a system of formalityfree, automatic protection, and where one can pick and choose whom to sue.").
210. See Dusollier, supra note 8, at 1408; Corey Field, Copyright, Technology, and Time: Perspectives on "Interactive" as a Term of Art in Copyright Law, 50 J. COPYRIGHT SOC'Y U.S.A. 49, 67 (2003); Goss, supra note 99, at 980; Rothman, supra note 127, at 1929 n.109.
211. Creative Commons, Copyright-Only Dedication (Based on United States Law) or Public Domain Certification, http://creativecommons.org/licenses/publicdomain/ (last visited Apr. 2, 2010).
212. Id.
213. Id.
214. See, e.g., Michael W. Carroll, Creative Commons and the New Intermediaries, 2006 MICH. ST. L. REV. 45, 55-56 (2006) (discussing the Open Clip Art Library).
215. See Diane L. Zimmerman, Living Without Copyright in a Digital World, 70 ALB. L. REV. 1375, 1381 (2007) ("Creative Commons also purports to offer a license that allows creators to inject what they have produced into the public domain, or at least allows them to try."). But cf. Matthew Dean Stratton, Will Lessig Succeed in Challenging the CTEA, Post- Eldred?, 53 J. COPYRIGHT SOC'Y U.S.A. 481, 522 (2006) (seemingly assuming that the Public Domain Dedication is valid).
216. See supra notes 177-81 and accompanying text; Zimmerman, supra note 217, at 1381 n.29 (observing that, "[a]lthough the statute has provisions that allow authors or their successors, under some circumstances, to terminate copyright grants, no where [sic] does it provide a mechanism by which an author or successor to an author can disclaim copyright altogether." (citations omitted)).
217. See supra notes 187-89 and accompanying text.
218. See infra Part III.B.1.
219. Creative Commons summarized the problems facing the existing Public Domain Dedication as follows: Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright term expires. Few if any jurisdictions have a process for doing so easily. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished. More challenging yet, many legal systems effectively prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about contributing a work to the public domain. Creative Commons, About CC0-"No Rights Reserved", http://creativecommons.org/about/ cc0 (last visited Mar. 29, 2010).
220. Id.
221. See infra notes 225-26 and accompanying text.
222. Creative Commons, Creative Commons Legal Code, pmbl. http://creativecommons. org/publicdomain/zero/1.0/legalcode (last visited Mar. 29, 2010) [hereinafter CC0 1.0 Legal Code].
223. Id. § 2.
224. Id. § 3.
225. Id. § 2.
226. Id. § 3.
227. See infra notes 237-38 and accompanying text.
228. See 17 U.S.C. §§ 302-04 (2006). The qualifier "for U.S. works" is necessary to avoid the complicating effects of 17 U.S.C. § 104A, which provides for restoration of U.S. copyright in some foreign works that had previously entered the public domain in the United States. But see Golan v. Holder, 611 F. Supp. 2d 1165 (D. Colo. 2009) (invalidating this provision on constitutional grounds).
229. See Siegel v. Warner Bros. Entm't Inc., 542 F. Supp. 2d 1098, 1102-05 (C.D. Cal. 2008) (describing origins and development of Superman). The Man of Steel has been a fixture of copyright casebooks ever since. See, e.g., Nat'l Comics Publ'ns, Inc. v. Fawcett Publ'ns, Inc., 191 F.2d 594 (2d Cir. 1951) (upholding validity of Detective Comics' copyright in Superman comics in case alleging that they had been infringed by "Captain Marvel"); Detective Comics, Inc. v. Bruns Publ'ns, Inc., 111 F.2d 432 (2d Cir. 1940) (sustaining judgment for copyright infringement against the creators of "Wonderman," a character differing from Superman chiefly in the color of his costume).
230. Siegel, 542 F. Supp. 2d at 1107.
231. Id. The parties also executed a later agreement providing for additional per-page royalties for Siegel and Shuster's subsequent Superman stories and illustrations. The later agreement, however, reconfirmed that exclusive ownership of the rights to Superman had already been transferred to Detective Comics. See id.
232. Id. at 1110; see also id. at 1146-59 (reproducing the cover and thirteen-page Superman story from Action Comics #1).
233. See id. at 1111-13.
234. STAFF OF H.R. COMM. ON THE JUDICIARY, 87TH CONG., REGISTER'S REPORT ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 92 (Comm. Print 1961) [hereinafter REGISTER'S REPORT]. The Register recognized that one mechanism aimed at providing such an opportunity for renegotiation-to wit, the grant of a separate renewal term of copyright to the author at the expiration of the initial twenty-eight-year term of protection-already existed under the 1909 Act. See id. at 53-54; see also supra note 166 (summarizing dual-term frame- work). The reversion of renewal term rights, however, had failed adequately to protect authors against the risk of unremunerative transfers, due in part to court decisions upholding authors' assignments of renewal-term rights made during the initial twenty-eight-year term of the copyright. See, e.g., Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643 (1943). If authors could validly contract away their renewal term rights at a time when their bargaining power was thought to be weakest, then the separate renewal estate provided no real benefit. As the Register observed: "It has become a common practice for publishers and others to take advance assignments of future renewal rights. Thus the reversionary purpose of the renewal provision has been thwarted to a considerable extent." REGISTER'S REPORT, supra, at 53. Although later court decisions recognized that the renewal term rights would revert to the author's estate, free and clear of any assignments or encumbrances made during the first term if the author died before the vesting of the renewal term rights, those cases did nothing to reduce the risk of unremunerative transfers where the author survived long enough for the renewal term rights (and hence, the prior assignment of those rights to the publisher) to vest. See Stewart v. Abend, 495 U.S. 207 (1990); Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960). See generally Stephen W. Tropp, It Had to be Murder or Will Be Soon-17 U.S.C. § 203 Termination of Transfers: A Call for Legislative Reform, 51 J. COPYRIGHT SOC'Y U.S.A. 797, 804-06 (2004) (recounting some of this history).
235. See supra notes 217-18 and accompanying text; REGISTER'S REPORT, supra note 236, at 93 ("The situation in which authors are most likely to receive less than a fair share of the economic value of their works is that of an outright transfer for a lump sum.").
236. REGISTER'S REPORT, supra note 236, at 93-94.
237. STAFF OF H.R. COMM. ON THE JUDICIARY, 89TH CONG., SUPPLEMENTARY REGISTER'S REPORT ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 71-76 (Comm. Print 1965); Tropp, supra note 242, at 805-07.
238. Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified at scattered sections of 17 U.S.C.).
239. U.S.C. § 203 (2006).
240. § 203(a). The words "by the author" signify that the termination provisions do not govern "transfers by the author's successors in interest[.]" H.R. REP. NO. 94-1476, at 125 (1976); see also 17 U.S.C. § 101 (defining "transfer of copyright ownership").
241. See § 203(a).
242. § 203(a)(3). This general rule is subject to a proviso where the original grant of rights included the right of publication of the work. In such a case, the five-year window during which the transfer may be terminated begins at the earlier of: (1) forty years after the grant, or (2) thirty-five years after publication of the work. Id.
243. § 203(a)(4). This provision of the statute also establishes requirements for the form and content of the written notice. It further provides that notice of termination may not be given more than ten years in advance. See id.
244. § 203(b)(6); see also Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999) (construing licensing agreement that was silent as to duration as permitting termination at will at any time). But cf. Rano v. Sipa Press, Inc., 987 F.2d 580, 585-86 (9th Cir. 1993) (refusing to construe copyright licensing agreement as terminable at will). See generally H.R. REP. NO. 94-1476, at 128 (noting that termination provisions were not intended to limit parties' freedom to negotiate a license for a term shorter than thirty-five years).
245. U.S.C. § 203(b).
246. § 203(b)(1).
247. § 203(a)(3).
248. § 203(a)(4).
249. U.S.C. § 203(a)(2).
250. This policy choice has been criticized on the grounds that it interferes with an author's freedom to dispose of her estate in accordance with her testamentary wishes. See Lee-ford Tritt, Liberating Estates Law from the Constraints of Copyright, 38 RUTGERS L.J. 109, 167-82 (2006). Where the author is survived by a spouse, child, or grandchild, the rights to terminate transfers made during the author's life and to recapture the transferred rights in the underlying work pass to the author's statutory successors irrespective of the terms of the author's will. See, e.g., Larry Spier, Inc. v. Bourne Co., 953 F.2d 774, 777-78 (2d Cir. 1992).
251. See § 203(a)(2)(A)-(D). The listing of statutory successors seems to enshrine, as a matter of federal copyright law, a certain orthodoxy regarding "nuclear family" relationships that predominated during the 1960s and 1970s when the statute was drafted. See Tritt, supra note 252, at 181-82 (noting that blended and nontraditional families, as well as families headed by same-sex or unmarried couples, are nowhere comprehended within the statutory succession scheme established by the termination rules). The statute's disregard of nontraditional family structures was even stronger before 1998, when Congress (without explanation) added the paragraph permitting authors' executors, administrators, personal representatives, or trustees to succeed to the author's termination rights. See 3 PATRY, supra note 157, § 7:61.
252. See 17 U.S.C. § 203(b).
253. Id. § 203(a)(5) (emphasis added); see also H.R. REP. NO. 94-1476, at 125 (1976) ("although affirmative action is needed to effect a termination, the right to take this action cannot be waived in advance or contracted away."). This provision represented a reaction to court decisions 261 See H.R. REP. NO. 94-1476, at 124 ("A provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited."). 262 This policy choice has been criticized on the grounds that it enables an author's heirs- who have themselves created nothing-to extract continuing rents based on the author's creation, to the detriment of the public. See William F. Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 NOTRE DAME L. REV. 907, 932-33 (1997); cf. Deven R. Desai, Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright (Mar. 5, 2009), available at http://ssrn.com/abstract=1353746 (suggesting that rhetoric in copyright debate surrounding the need to provide for authors' heirs has been strategically deployed to mask the real underlying battle between the interests of authors and publishers, and that the public's status as the ultimate beneficiary of authors' creativity has been unjustly overlooked). 263 See supra notes 231-35 and accompanying text. 264 Siegel v. Warner Bros. Entm't Inc., 542 F. Supp. 2d 1098, 1113 (C.D. Cal. 2008). 265 Id. at 1114. Shuster's heirs did likewise, although their rights were not before the court that heard the case involving Siegel's termination. See id. at 1114 n.3. 266 See id. at 1117. 267 See id. at 1117-39. 268 Id. at 1145.that had permitted contractual agreements between the parties to override Congress's attempts to protect authors against unremunerative transfers by granting a new estate in the renewal term. See supra note 221; Melville B. Nimmer, Termination of Transfers Under the Copyright Act of 1976, 125 U. PA. L. REV. 947, 982-83 (1977). The courts are presently divided on whether a new agreement between the same parties that supersedes an earlier transfer and makes a new transfer of the same rights is an "agreement to the contrary"-that is to say, whether the grantor retains the power to terminate the earlier grant notwithstanding the provisions of the later agreement. Compare Penguin Group (USA) v. Steinbeck, 537 F.3d 193, 202-04 (2d Cir. 2008) (upholding later agreement), with Classic Media, Inc. v. Mewborn, 532 F.3d 978, 982-86 (9th Cir. 2008) (invalidating later agreement). Although this disagreement may prove highly consequential as it affects the business relations of authors and publishers, it is unlikely to carry much significance in the context of opencontent licensing. See generally Peter S. Menell & David Nimmer, Pooh-Poohing Copyright Law's "Inalienable" Termination Rights (UC Berkeley Pub. Law, Research Paper No. 1525516, 2009), available at http://ssrn.com/abstract=1525516 (arguing that statutory provisions should be construed to discourage opportunistic attempts by licensees to frustrate authors' termination rights).
254. See Lemley, supra note 96, at 141-42; cf. Robert A. Kreiss, Abandoning Copyrights to Try to Cut Off Termination Rights, 58 MO. L. REV. 85, 86 (1993) (because of statutory termination provisions, "an author's assignment of all his copyright rights is more like the conveyance of a fee simple subject to condition subsequent than the conveyance of a fee simple absolute").
255. See 17 U.S.C. § 304(c).
256. See § 304(c)(1), (2), (4). The grants subject to termination are somewhat broader under § 304(c) insofar as they include grants made other than by the original author, although the distinction is unimportant for present purposes. See generally H.R. REP. NO. 94-1476, at 140-42 (summarizing key differences between termination provisions of §§ 203 and 304(c)).
257. § 304(c)(3) ("Termination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later."). By permitting termination of existing assignments fifty-six years after the vesting of the initial copyright, Congress meant to ensure that authors and their successors, rather than assignees, benefited from the 1976 Act's extension of the second copyright term from twenty-eight to forty-seven years. See H.R. REP. NO. 94-1476, at 140 ("the extended term represents a completely new property right, and there are strong reasons for giving the author, who is the fundamental beneficiary of copyright under the Constitution, an opportunity to share in it"). Congress repeated this step in 1995, when it again extended the duration of existing copyrights by twenty years and gave authors a new termination opportunity. See 17 U.S.C. § 304(d); 3 PATRY, supra note 157, § 7:62.
258. § 304(c)(5).
259. See H.R. REP. NO. 94-1476, at 124 ("A provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited.").
260. This policy choice has been criticized on the grounds that it enables an author's heirs- who have themselves created nothing-to extract continuing rents based on the author's creation, to the detriment of the public. See William F. Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 NOTRE DAME L. REV. 907, 932-33 (1997); cf. Deven R. Desai, Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright (Mar. 5, 2009), available at http://ssrn.com/abstract=1353746 (suggesting that rhetoric in copyright debate surrounding the need to provide for authors' heirs has been strategically deployed to mask the real underlying battle between the interests of authors and publishers, and that the public's status as the ultimate beneficiary of authors' creativity has been unjustly overlooked).
261. See supra notes 231-35 and accompanying text.
262. Siegel v. Warner Bros. Entm't Inc., 542 F. Supp. 2d 1098, 1113 (C.D. Cal. 2008).
263. Id. at 1114. Shuster's heirs did likewise, although their rights were not before the court that heard the case involving Siegel's termination. See id. at 1114 n.3.
264. See id. at 1117.
265. See id. at 1117-39.
266. Id. at 1145.
267. See supra Parts II.B-C. Because all the open-content licenses discussed above were promulgated, and all the works licensed thereunder were licensed, after January 1, 1978, the pertinent termination provision is § 203.
268. See generally supra Part II.A. The exception would be for works licensed under one of the Creative Commons "No Derivatives" (ND) variants, or to designated Invariant Sections of documents licensed under the GFDL. See supra notes 116, 128-30 and accompanying text.
269. U.S.C. § 203(a) (2006).
270. In general, open-content licenses do not constitute "transfers of copyright ownership" as that term is defined in 17 U.S.C. § 101, because they are, by their terms, nonexclusive-that is, the licenses do not preclude the author from licensing the same rights in the work to other licensees. Nonexclusive licensing arrangements fall outside the definition of "transfers of copyright ownership" in § 101, but are expressly made subject to the statute's termination provision in § 203(a).
271. As noted above, the statute's termination provisions do not apply to works made for hire-for example, a work prepared by an employee within the scope of employment. § 203(a); see also supra notes 200, 243 and accompanying text. In the specific context of FOSS, this limitation on the scope of the statute's termination provision may be highly relevant, in view of the growing number of technology firms whose employees participate in open-source software development as part of their employment. See DON TAPSCOTT & ANTHONY D. WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 92 (2006) ("No longer just an ad-hoc collection of individual volunteers, most of the participants in the Linux ecosystem are paid employees of Fortune 100 tech firms.").
272. See 17 U.S.C. § 203(b).
273. See id. § 203(b)(1).
274. Additional counterarguments against this plain-language reading of the statute are considered infra Part IV.A.
275. F.3d 1373 (Fed. Cir. 2008).
276. The language of the applicable version 1.0 of the Artistic License is available at The Perl Foundation, Artistic License 1.0, http://www.perlfoundation.org/artistic_license_1_0 (last visited Mar. 30, 2010).
277. Revision 1.0 of the Artistic License was not approved by either the FSF or OSI. See supra note 48 (noting those organizations' lists of software licenses that have been found com- patible with their respective principles). Subsequent revisions brought the license into compliance with both the FSF's and OSI's principles. See The Perl Foundation, Artistic License 2.0, http://www.perlfoundation.org/artistic_license_2_0 (last visited Mar. 30, 2010). This later revision of the license was not at issue in Jacobsen v. Katzer. Nevertheless, even the earlier version of the Artistic License was clearly aimed at building a commons of freely reusable expressive works, and in that sense it may be recognized as a FOSS-type license notwithstanding its deviations from some of the principles enunciated by the FSF and OSI.
278. This is a slight, but inconsequential, oversimplification. The actual conditions attached to the Artistic License 1.0 are quoted in the court's opinion. See Jacobsen v. Katzer, 535 F.3d 1373, 1380 (Fed. Cir. 2008).
279. Id. at 1376-77.
280. Id. at 1375-76.
281. See Jacobsen v. Katzer, No. 06-CV-01905, 2007 WL 2358628 (N.D. Cal. Aug. 17, 2007), rev'd, 535 F.3d 1373 (Fed. Cir. 2008). Interpreting open-content licenses as imposing mere contractual obligations has been recognized as problematic on several fronts, ranging from the difficulty of demonstrating assent by the licensee, to problems involving the existence of consideration, to the difficulty of ascertaining damages in the event of breach where the underlying work was given away for free. See, e.g., Asay, supra note 95, at 285-86; Gonz'alez, supra note 47; Kumar, supra note 50, at 16-24; Wacha, supra note 95, at 457-59, 481-83. But cf. Gomulkiewicz, supra note 73, at 346 ("There seems to be a mistaken belief that things are either licenses or contracts when, in fact, most of the time, they are both contracts and licenses- that is, contracts that contain licenses." (footnotes omitted)).
282. See Jacobsen, 535 F.3d at 1381-83; see also, e.g., Gomulkiewicz, supra note 73, at 340-43 (describing the case); Michael J. Madison, Notes on a Geography of Knowledge, 77 FORDHAM L. REV. 2039, 2056-57 (2009) (same).
283. See, e.g., Baker, supra note 95, at 787 (labeling Jacobsen a "landmark case"); Gomulkiewicz, supra note 73, at 346 (noting that Jacobsen confirmed the enforceability of FOSS licenses and the availability of injunctive relief in the event of breach); Vetter, supra note 85, at 2089-90 ("If the district court's analysis in Jacobsen v. Katzer had remained, it would have undermined a foundational premise of FOSS licenses.").
284. See WEBER, supra note 9, at 59 ("there are inherent limits to software that can be built by one or two people").
285. U.S.C. § 201(b) (2006).
286. See WEBER, supra note 9, at 62-65.
287. See Vetter, supra note 68, at 81 (describing the "web of license interdependency" among contributors to a FOSS project).
288. See § 203(b)(1).
289. See Kerry D. Goettsch, Recent Development, SCO Group v. IBM: The Future of Open- Source Software, 2003 U. ILL. J.L. TECH. & POL'Y 581, 583-84 (2003); Zittrain, supra note 9, at 266-67.
290. See SCO Group v. Novell, Inc., No. 2:04CV139DAK, 2007 WL 2327587, at 35 (D. Utah Aug. 10, 2007). On March 30, 2010, following a trial, a jury found that the terms of the parties' asset purchase agreement did not result in a transfer of copyright in the underlying code to SCO. SCO Group, Inc. v. Novell, Inc., No. 2:04-CV-139 TS, Special Verdict Form Mar. 30, 2010 (copy on file with the Harvard Journal on Legislation).
291. See Vetter, supra note 68, at 81 & n.62 (noting that even this alternative would leave downstream users of the kernel in a potentially vulnerable position).
292. FOSS aficionados will recognize August 25, 1991 as the date of the first public announcement by programmer Linus Torvalds of the project that became the Linux operating system. See KELTY, supra note 10, at 215.
293. See generally supra note 244 and accompanying text.
294. To be more precise, the notice must be served no earlier than ten years before the earliest available date in the five-year termination window and no later than two years before the latest possible termination date, but in no event may the licensor provide less than two years' notice. See generally supra note 245 and accompanying text.
295. See supra notes 74-76, 120-29, 134-42 and accompanying text.
296. This may be especially true for partisans of the "free software" side of the "free and open-source" conceptual divide. See supra note 47. Those who see the avoidance of proprie- tary entanglement as a moral imperative may understandably be less likely to depart from that position than those who view commons-based peer production in more technical terms.
297. See supra note 153 and accompanying text.
298. See supra note 253 and accompanying text.
299. See supra note 61 and accompanying text.
300. See 17 U.S.C. §§ 203(a)(5), 304(c)(5) (2006); see also supra notes 255-56 and accom- panying text.
301. See generally supra Part III.A.2.
302. BENKLER, supra note 11, at 65. See generally supra note 99 and accompanying text.
303. See generally supra Part III.A.3.
304. U.S.C. § 203(a).
305. See FISHMAN, supra note 182, § 6.02[4] (suggesting that terminating one's own aban- donment of copyright may be possible, but that users of the work who believed it to be in the public domain should prevail on an equitable estoppel defense to any infringement claim); Phillip Johnson, "Dedicating" Copyright to the Public Domain, 71 MOD. L. REV. 587, 608-09 (2008) (also suggesting that dedications to the public domain are revocable by licensor subject to estoppel defenses).
306. See Kreiss, supra note 256.
307. See id. at 87-90.
308. See id. at 112.
309. See supra note 307.
310. See Golan v. Holder, 611 F. Supp. 2d 1165 (D. Colo. 2009); Yochai Benkler, Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354 (1999); cf. infra note 336 and accompanying text.
311. See supra note 233 and accompanying text.
312. See supra note 9 and accompanying text.
313. See Lydia Pallas Loren, Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright, 14 GEO. MASON L. REV. 271 (2007).
314. See id. at 297 (arguing that when an author elects to "select[ ] a semicommons status for his work" rather than full copyright protection, "the law should recognize the binding nature of that commitment.").
315. See id. at 295 ("When a work is marked with a notice that it is licensed under a Creative Commons license, the public is informed that instead of the default rules of copyright law, some uses that copyright law would prohibit are instead permitted.").
316. Id. at 323-24.
317. See supra note 208 and accompanying text.
318. See R. Anthony Reese, Are Creative Commons Licenses Forever?: Authors' Termination Rights and Open-Content Licensing (Aug. 31, 2009) (unpublished manuscript at 15, on file with author) (noting that the "statute's policy is clearly to allow the author to change her mind, terminate [a] transfer, and attempt to resell the recaptured rights," and that "it is not clear that the same policy should not apply in the Creative Commons situation").
319. See supra notes 252-54 and accompanying text.
320. See Loren, supra note 315, at 319 (noting that Creative Commons licenses "do not contain an execution date (nor do they contain a signature)" and do not identify licensees to whom termination notices would need to be sent). This characteristic typifies open-content licenses, which do not mimic the form of arm's-length transactions. See supra notes 30-33 and accompanying text.
321. Professor Anthony Reese has also highlighted sound policy justifications against limiting the scope of authors' termination rights to those grants signed by the author. See Reese, supra note 320, manuscript at 9-13.
322. U.S.C. § 203(a) (2006); see also id. § 304(c) (termination power reaches "the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it").
323. Sunham Home Fashions, LLC v. Pem-Am., Inc., 2002 WL 31834477, at 7 (S.D.N.Y. Dec. 17, 2002), aff'd, 83 Fed. App'x 369 (2d Cir. 2003). It would be odd, as well, to hold nonexclusive licenses to a higher standard of formal regularity than actual transfers of copyright ownership.
324. U.S.C. § 101 (2006). Although the words "first person" do not appear in § 101, this is the practical effect of § 102(f) (2006), which bars the award of a patent to a person who "did not himself invent the subject matter sought to be patented."
325. Id. § 102(a), (e)-(g).
326. Id. § 103(a).
327. See id. § 102(b)-(d).
328. Pennock v. Dialogue, 27 U.S. 1, 16 (1829); see also Kendall v. Winsor, 62 U.S. 322, 329 (1858).
329. See Patent Act of 1839, ch. 88, § 7, 5 Stat. 353, 354 (entitling applicant to patent "except on proof of abandonment of such invention to the public").
330. § 102(c). The phrasing of this provision, although grounded in Supreme Court decisions like Pennock, is infelicitous; it would be more precise to say that the inventor has "abandoned" her right to obtain a patent on the invention. See, e.g., ALAN L. DURHAM, PATENT LAW ESSENTIALS: A CONCISE GUIDE 123 (2004).
331. See, e.g., Moore v. United States, 1977 U.S. Ct. Cl. 578 (1977).
332. See supra note 330 and accompanying text. For example, an inventor might achieve the same result as an express abandonment of the invention under § 102(c) simply by failing to submit a patent application for more than one year after offering the invention for sale to the public, which would bar patentability under § 102(b).
333. See Graham v. John Deere Co., 383 U.S. 1, 6 (1966) ("Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.").
334. The Court's analytical approach in these cases might readily be criticized, of course. See, e.g., WILLIAM D. POPKIN, STATUTES IN COURT: THE HISTORY AND THEORY OF STATUTORY INTERPRETATION 183-85 (1999) (arguing that different statutes are essentially the products of different authors writing for different audiences, and should not be interpreted as the work of a single creator); Peter S. Menell & David Nimmer, Unwinding Sony, 95 CAL. L. REV. 941, 981-82 (2007) (criticizing Court's borrowing of patent concepts when construing the Copyright Act).
335. U.S. 417 (1984).
336. Id. at 439.
337. U.S.C. § 271(c) (1982).
338. Sony, 464 U.S. at 442. The Court held that "the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." Id.
339. See id. at 443-47 (noting approval or acquiescence by many large copyright holders in public taping of their broadcasts), 447-55 (finding "time-shifting," or the recording of a broadcast for a single viewing at a later time, to be noninfringing under fair use doctrine).
340. Id. at 456.
341. U.S. 913 (2005).
342. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154, 1162-66 (9th Cir. 2004), rev'd, 545 U.S. 913 (2005).
343. U.S.C. § 271(b) (2006).
344. Grokster, 545 U.S. at 936-37.
345. Grokster, 545 U.S. 913; Sony, 464 U.S. 417.
346. Kendall v. Winsor, 62 U.S. 322, 329 (1858).
347. See supra notes 331-36 and accompanying text.
348. See supra notes 341, 347 and accompanying text.
349. See supra notes 326-30 and accompanying text.
350. See supra notes 261-62 and accompanying text.
351. Professor Reese has argued that this is not so and that it is perfectly foreseeable that authors may wish temporarily to permit reuse of their works by open-content projects, then later recapture and market the rights in their contributions. See Reese, supra note 320, manu- script at 19 ("Interpreting Section 203 to apply to Creative Commons licenses thus seems largely consonant with the policies that section implements."). Professor Reese and I simply read the record differently. Particularly where the governing licensing instruments include express representations to licensees concerning the permanence of the grant (see supra notes 74, 77, 120, 140, 215, 224-26 and accompanying text) and the open-content community has ap- parently taken these provisions at face value (see supra notes 75-76, 122, 147 and accompanying text), Professor Reese seems to endorse a simple bait-and-switch, permitting licensors years after the fact to renege on their own assurances of a perpetual grant and demand compensation from users of the licensed works. To put it another way, Professor Reese and I agree that current law seems to permit termination of an open-content license even where the terms of the license provide for a perpetual grant. We differ insofar as I regard this as a flaw, not a benefit, of the current statutory regime. (I would, of course, have no objection to authors making a limited-term grant of rights in their works to the use and benefit of the public where the temporary nature of the grant was apparent on the face of the license, nor to the application of the termination provisions to a license that was silent as to its intended duration. Nevertheless, it is not difficult to imagine variations on the latter scenario that would present a more troubling case for termination, as where the licensor by its conduct induces the licensee to believe that the license is perpetual.)
352. See supra notes 50-53 and accompanying text (summarizing history of open-content licenses, the earliest of which was promulgated long after 1976).
353. See supra notes 236-40 and accompanying text (noting that the termination provisions were intended to counteract licensees' superior bargaining power and to remedy unremunerative transfers).
354. See H.R. 1260, 111th Cong. (2009); S. 515, 111th Cong. (2009). A comprehensive patent reform bill passed the House in 2007, but legislative efforts have remained largely stalled since that time. See H.R. 1908, 110th Cong. (2007).
355. See Pamela Samuelson, Preliminary Thoughts on Copyright Reform, 2007 UTAH L. REV. 551, 556.
356. See, e.g., Jessica Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857, 861 (1987) (noting that language used in the Copyright Act of 1976 frequently "evolved through a process of negotiation among authors, publishers, and other parties with economic interests in the property rights the statute defines"); id. at 879 (questioning whether it makes sense to refer to "legislative intent" in view of the industry-driven negotiated drafting process); see also LANDES & POSNER, supra note 34, ch. 15 (discussing roles of inter- est groups in influencing copyright legislation); NETANEL, supra note 156, at 184-85 (noting the relative absence of representatives of the public interest in the copyright legislative process).
357. See, e.g., S. REP. NO. 104-315, at 9 (1996) (emphasizing risks to U.S. competitiveness if duration of existing copyrights was not extended); Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 IND. J. GLOBAL LEGAL STUD. 117, 120 n.9 (1999) (noting that this perspective is broadly shared among developed nations).
358. See Derek Bambauer, Faulty Math: The Economics of Legalizing the Grey Album, 59 ALA. L. REV. 345 (2008).
359. See David Fagundes, Crystals in the Public Domain, 50 B.C. L. REV. 139 (2009). In view of the influence that copyright holders presently exercise in the legislative process, see supra note 359, it seems unlikely that any bright-line copyright "metes and bounds" would be drafted in a way that expands, rather than curtails, the scope of uses for which members of the public do not require the copyright holder's permission.
360. See Christopher Sprigman, Reform(aliz)ing Copyright, 57 STAN. L. REV. 485 (2004).
361. See Samuelson, supra note 358, at 566-67 n.101; see also supra note 266 and accom- panying text.
362. In the present political climate, the likelihood of enacting any proposed copyright amendment likely varies inversely to its perceived effects on the existing balance of power as between publishers and users of expressive works. See Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 27, 357 (1989) ("Every proposal to change the status quo has received opposition from some camp on the ground that it would remove a perceived advantage enjoyed under current law." (footnote omitted)). But see Samuelson, supra note 358, at 556 ("Even modest reform efforts have encountered difficulties in reaching consensus."). This Article's focus on incremental reforms tailored to the specific problem at hand carries no implication that more far-reaching copyright revisions are in any way normatively undesirable, only that they are unnecessary to solve the termination problem for open-content licenses.
363. See supra note 243 and accompanying text.
364. See 17 U.S.C. § 1201(a)(1)(B)-(D) (2006); Armstrong, supra note 130, at 8 n.28 (not- ing limited reach of DMCA exemptions approved by Librarian to date).
365. See supra note 318 and accompanying text; see generally supra Part IV.A.
366. See 35 U.S.C. § 102(c) (2006). See generally supra notes 331-34 and accompanying text.
367. See supra notes 242, 308-10 and accompanying text.
368. The Copyright Act's definition of "including" should suffice to ensure that the proposed exception, although meant to reach open-content licensing arrangements, is not confined to that context. See 17 U.S.C. § 101 ("The terms 'including' and 'such as' are illustrative and not limitative."). See generally supra Part III.B.3.
369. It should not be necessary to add a definition of "abandonment" to the Copyright Act; after all, the Patent Act's abandonment provision does not define the term, either. Cf. 35 U.S.C. § 101. The courts are accustomed to filling in statutory gaps of this sort in copyright cases. See 1 PATRY, supra note 157, § 2:1 ("[C]ritical components of copyright law are judge-made. [T]he Act is a mixture of statutory and common-law features.").
370. For example, the phrase "otherwise than by will" in 17 U.S.C. § 203(a) might be amended to read "otherwise than by will or as provided below."
371. See Menell & Nimmer, supra note 255 (suggesting this test as a touchstone to govern judicial interpretations of the existing termination provisions).
372. For example, a license of the general form "exclusively to Licensee for a period of thirty-four years, thence to the public domain." The period of exclusive license would have to be shorter than the thirty-five-year duration that marks the opening of the statutory termination window, otherwise the licensee gains no ability to alter the existing termination regime by this route. (This arrangement, of course, presents a variation on Professor Kreiss's hypothetical in which a downstream licensee aims to dedicate the licensed work to the public domain as a means of avoiding termination. See Kreiss, supra note 256.)
373. For a regulatory system of such complexity and economic scope, copyright is unusual in that it has remained largely unaffected by the post-New Deal expansion in the power of administrative agencies. See Litman, supra note 365, at 356-57 (noting lack of support at the time of the Copyright Act of 1976 for proposal to extend substantive copyright rulemaking responsibilities to an administrative agency). Indeed, a large part of the complexity of the Copyright Act of 1976 stems from its inclusion of exceedingly detailed and complicated technical provisions that might be better handled by administrative regulation. See Samuelson, supra note 358, at 558 (recommending "an administrative process" to address "future advanced technology questions" as a means of "getting rid of some of the clutter in the existing statute"). Proposals to increase the role of administrative agencies recur often in contemporary copyright scholarship. See, e.g., Mark A. Lemley & R. Anthony Reese, A Quick and Inexpensive System for Resolving Peer-to-Peer Copyright Disputes, 23 CARDOZO ARTS & ENT. L.J. 1 (2005); Jason Mazzone, Administering Fair Use, 51 WM. & MARY L. REV. 395 (2009).
374. See generally 5 U.S.C. § 553 (2006).
375. See supra note 367 and accompanying text.
376. FSF and OSI, for example, maintain lists of licensing instruments that are believed to be compatible with those organizations' governing philosophies, see supra note 48, but there is no persuasive reason to limit the termination exemption to licenses that happen to appear on either organization's list. The original version of the Artistic License, for example, would make a prime candidate to be protected against termination, even though neither FSF nor OSI approved it. See supra note 279 and accompanying text.
377. See supra Part III.B.1 (discussing the Superman case).
378. See supra notes 221-29 and accompanying text.
379. See supra note 255.
380. See, e.g., Armstrong, supra note 130, at 32-36.
381. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 20 (Amy Gutmann ed., 1997) ("Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.").
382. 17 U.S.C. § 203(a) (2006).