ship and abuse of the termination regime in the realm of open-content works appear substantial.
An author’s termination of an open-content license would present a host of practical difficulties. Rapid evolution characterizes many of the works created under such licenses, and untangling a terminating author’s long ago contributions from the contemporary version of a work may represent an exceedingly complex undertaking. In addition, open-content works often include contributions from many authors—thousands, or even millions, in the case of large-scale projects like Linux or Wikipedia—and the task of excising a terminating author’s contributions while simultaneously preserving later users’ contributions would prove particularly vexing.
Even aside from these practical considerations, termination would undoubtedly chill the vibrant creative environment that presently surrounds the development and use of open-content works. It would likely surprise later contributors to the project who had been led to believe that earlier users’ contributions would remain available for reuse in perpetuity (and whose own contributions may well have been made in reliance on that understanding). It would also present a clear affront to the community norms of nonproprietization and mutual sharing that characterize a number of the most vibrant open-content projects.
For all these reasons, the Copyright Act’s termination provisions make a poor fit with open content works. Because those provisions nevertheless appear on their face to permit termination of open-content licenses, clarification or revision of the law is necessary. Although some judge-made doctrines may be pressed into service towards this end, courts may be understandably reluctant to depart from what would appear to be plain statutory text. Therefore, protections against termination for open-content works may find firmer grounding in new legislation.
Part II of this Article will illustrate the variety of copyright licensing arrangements that underlie the peer-production phenomenon. The objective here is not to advance normative claims about the strengths or weaknesses of peer production as a mode of creative endeavor or to contrast it favorably or unfavorably with the more traditional proprietary model of production. This assessment occurs instead at an analytically “lower” level. It takes the peer-production phenomenon as a given and examines the particular licensing arrangements that bind open-content projects and their creators together. Given the dozens, or even hundreds, of model licensing instruments in existence, this inquiry can do no more than summarize a few of the most widely used alternatives, including the GPL and BSD Licenses for software and the GNU Free Documentation License (“GFDL”) and Creative Commons family of licenses for works of other types.
Part III then situates the licensing issue within federal copyright law. The termination clauses represent only one way in which the Copyright Act has evolved to make it more difficult for creators to make irrevocable grants of rights in their works to others. This portion of the Article considers, as
