nate portion of the millions of lines of code that made up the Linux kernel, extract any portions of the code copyrighted by SCO, and write noninfringing replacement code—a potentially daunting prospect.[1] The termination provisions of the Copyright Act, however, make every FOSS contributor another potential SCO: contributors may revoke permission, years after the fact, to copy and reuse their contributions, thereby potentially requiring significant re-engineering of open-content projects.
Several factors likely contribute to explaining why the Copyright Act’s termination provisions have gone largely unrecognized as a source of potential trouble within the open-content community thus far. First, too little time has passed to make termination an immediate and concrete threat. To take a purely hypothetical example, consider a FOSS work licensed under the GPL and released on August 25, 1991.[2] The earliest possible date for termination of the license for that work under § 203 would be August 25, 2026, thirty-five years after the date of the grant. The latest possible termination date would be August 25, 2031, forty years after the grant.[3] Notice of termination would have to be served between August 25, 2016 and August 25, 2029.[4] Thus, even the very earliest works issued under open-content licenses will not become subject to possible termination until several years from now. Nevertheless, the mere possibility of future termination likely conflicts with user expectations in the open-content community, which presume that the licensed works will remain available for free use in perpetuity.[5]
Second, termination may be viewed as less of a threat within the open-content community because contributors to that community who act from a desire to build a commons of freely reusable expressive works are thought not to be likely to change their minds and seek to reacquire proprietary rights in their works.[6] Not all open-content contributors share that motive, however,[7] and it is näıve to assume that none of the millions of individuals who have contributed to open-content projects will ever become interested
in recapturing copyright rights. Furthermore, it is not only the contributors’
- ↑ 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).
- ↑ 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.
- ↑ See generally supra note 244 and accompanying text.
- ↑ 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.
- ↑ See supra notes 74–76, 120–29, 134–42 and accompanying text.
- ↑ 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 proprietary 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.
- ↑ See supra note 153 and accompanying text.
