the problem of unequal bargaining power that the termination provisions were designed to remedy.
2. Termination of Open-Content Licenses
A literal reading of the Copyright Act’s termination provisions suggests possible difficulty for users of works distributed under the various open-content licensing arrangements illustrated earlier.[1] Each of the open-content licenses considered above authorizes members of the public to copy, to distribute, and (in most cases) to modify the licensed works,[2] actions that would otherwise be reserved by statute to the copyright holder alone. Thus, every open-content license creates a “nonexclusive grant of a . . . license of . . . any right under a copyright”[3] within the meaning of the statute’s termination provision.[4] Accordingly, individual contributors[5] to a host of open-content projects would appear to be empowered under the statute to terminate licenses and recapture the copyright rights in their contributions to the project.[6] Existing derivative works based on those contributions could continue to be used, but no new derivatives could be created.[7] Thus, although the issue is less than perfectly clear, the existing statutory text suggests that open-content licenses are not (and cannot be) truly perpetual, notwithstanding the intent of licensors and the settled understandings of the open-content user community.[8]
- ↑ 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.
- ↑ 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.
- ↑ 17 U.S.C. § 203(a) (2006).
- ↑ 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).
- ↑ 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.”).
- ↑ See 17 U.S.C. § 203(b).
- ↑ See id. § 203(b)(1).
- ↑ Additional counterarguments against this plain-language reading of the statute are considered infra Part IV.A.
