endeavor,[1] and a conscious effort to provide an alternative supply of expressive resources for future authors.
The public derives at least two identifiable benefits from works produced under open-content licenses. First, perhaps most obviously, open-content works may be consumed without fear of liability. Individuals may freely use software,[2] or listen to (or share) music[3] issued under open-content licenses (assuming, as always, that any applicable conditions in the accompanying licenses are observed). This is a particularly valuable benefit insofar as it aligns with internet-user norms, which have favored the sharing and reuse of works even in the face of legal threats.[4] Second, making works available for use under open-content licenses has a multiplier effect, permitting the creation of new works which may never have come into existence absent the raw materials that the licenses place into the commons.[5] These benefits to the public, in turn, help to justify legal protections for the creators and users of open content works against the uncertainty of termination.
- ↑ See Robert P. Merges, A New Dynamism in the Public Domain, 71 U. Chi. L. Rev. 183 (2004).
- ↑ 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).
- ↑ 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).
- ↑ 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).
- ↑ 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. Organisation 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).
