own wishes that must be considered, for the termination power expressly extends to the contributors’ statutory heirs,[1] who may or may not share the contributors’ views as to the importance of a vibrant informational commons.
Finally, the possibility of termination may simply be perceived as a risk about which little can be done under the present state of the law. Open-content licenses preserve a commons of informational works because it is well settled (as Jacobsen illustrates) that the author of a work may attach enforceable conditions to authorized uses of the work.[2] There is no comparably settled doctrine, however, in favor of the making of a permanent and non-terminable license of rights under copyright. The statute, to the contrary, expressly circumscribes private action to create a non-terminable license.[3] Further, judicial skepticism toward the nearest existing analogue—copyright abandonment[4]—may reveal much about the limited opportunity available for open-content advocates to leverage existing law. Or, to adapt an analogy frequently deployed in commentaries on the FOSS phenomenon, the “legal jujitsu”[5] that sustains the open-content commons requires something to push against; when the issue is the creation of a perpetual, non-terminable license, that “something” may be absent.
3. Termination of Dedications to the Public Domain
The same logic may suggest trouble for an author’s attempt to abandon copyright and dedicate a work to the public domain, particularly via specialized copyright licenses.[6] When copyright rights attach automatically upon fixation and formalities are irrelevant, it is quite possible that a court may construe an author’s post-fixation dedication of the work to the public domain as a “nonexclusive grant of a transfer or license or copyright or of any right under a copyright”[7] that is necessarily subject to the statute’s termination provisions. This interpretation would allow the author to terminate her abandonment of copyright and recapture proprietary rights in the work.
This issue remains underexamined in the literature to date.[8] Nearly a
generation ago, Professor Robert Kreiss examined the interplay of the stat-
- ↑ See supra note 253 and accompanying text.
- ↑ See supra note 61 and accompanying text.
- ↑ See 17 U.S.C. §§ 203(a)(5), 304(c)(5) (2006); see also supra notes 255–56 and accompanying text.
- ↑ See generally supra Part III.A.2.
- ↑ Benkler, supra note 11, at 65. See generally supra note 99 and accompanying text.
- ↑ See generally supra Part III.A.3.
- ↑ 17 U.S.C. § 203(a).
- ↑ See Fishman, supra note 182, § 6.02[4] (suggesting that terminating one’s own abandonment of copyright may be possible, but that users of the work who believed it to be in the public domain should prevail on an equitable estoppel defense to any infringement claim); Phillip Johnson, “Dedicating” Copyright to the Public Domain, 71 Mod. L. Rev. 587, 608–09 (2008) (also suggesting that dedications to the public domain are revocable by licensor subject to estoppel defenses).
