ARTICLE
SHRINKING THE COMMONS: TERMINATION OF COPYRIGHT LICENSES AND TRANSFERS FOR THE BENEFIT OF THE PUBLIC
Timothy K. Armstrong[* 1]
Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.
These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used “open content” licensing arrangements, such as the GNU General Public License (“GPL”) for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively with drawn from public use, with potentially chaotic results.
Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part,
- ↑ Associate Professor of Law, University of Cincinnati College of Law. B.A. 1989,
M.P.Aff. 1993, J.D. 1993, The University of Texas at Austin; LL.M. 2005, Harvard Law School.
The author received valuable feedback after presenting earlier versions of this work at
the 2009 Intellectual Property Scholars Roundtable at Drake University Law School, at faculty
colloquia at the University of Pittsburgh School of Law and the University of Cincinnati College
of Law, and at the Cincinnati Intellectual Property Law Association’s 2009 Symposium
on Open Source and Security. Michael Madison and Ria Schalnat also provided insightful
comments on the issues considered herein, and Christopher St. Pierre, a 2008 graduate of the
University of Cincinnati College of Law, clarified some of the technical issues and tradeoffs
involved in software development. The author gratefully acknowledges the research support of
the Harold C. Schott Foundation and the research assistance of Scott Brenner.
Copyright © 2010, Timothy K. Armstrong. This work is licensed under the Creative Commons Attribution-Share Alike 3.0 United States license. To view a copy of this license, visit http://creativecommons.org/licenses/by-sa/3.0/us/, or send a letter to Creative Commons, 171 2nd Street, Suite 300, San Francisco, California, 94105, USA. For purposes of Paragraph 4(c) of the said license, proper attribution must include the name of the original author and the name of the Harvard Journal on Legislation as publisher, the title of the Article, the Uniform Resource Identifier, as described in the license, and, if applicable, credit indicating that the Article has been used in a derivative work.
