ute’s termination provisions and the doctrine of copyright abandonment.[1] Professor Kreiss, however, viewed the issue in a seemingly idiosyncratic context, asking whether the exclusive licensee of a copyrighted work (rather than the author of that work) could somehow “abandon” copyright in the work as a means of thwarting the licensor’s power to terminate the license.[2] Professor Kreiss reasoned that the licensee had no power to “abandon” rights it did not actually hold and that the licensee’s purported abandonment of copyright in the work would not prevent the licensor from recovering those rights via the termination provisions. This possibility, although seemingly plausible given the breadth of the statutory termination clause, would surely surprise members of the public who had relied on the licensee’s truthful statements that “we hold the exclusive rights to this work, and we hereby dedicate said work to the public domain.”[3]
The point is not that members of the public would necessarily be liable for copyright infringement in the event of termination of an author’s dedication of a work to the public domain. Perhaps accused infringers could prevail under an estoppel theory.[4] Or perhaps they could argue that construing the statute to allow recapture of proprietary rights in a work previously in the public domain is unconstitutional.[5] The point, rather, is that under the currently existing provisions of the Copyright Act, there appears to be little the author can do ex ante to make her own dedication of a work to the public domain perpetual and irrevocable.
Although private parties may be statutorily disabled from crafting licensing instruments that avoid the Copyright Act’s termination provisions, there are some possible arguments that courts might employ to effectuate a licensor’s intent in making a non-terminable grant. As discussed below, however, these arguments may not fully match the force of the argument for termination of an open-content license based on the statute’s literal text.
IV. Construing Licenses to Avoid Termination
Siegel and Shuster gave up the legal right to control Superman and received $130.[6] Linus Torvalds did the same with the Linux operating system and received zero dollars.[7] What separates the two scenarios, beyond the obvious, is the absence in the latter of any recognizable form of coercion.
An author’s voluntary selection of an open-content license cannot plausibly
- ↑ See Kreiss, supra note 256.
- ↑ See id. at 87–90.
- ↑ See id. at 112.
- ↑ See supra note 307.
- ↑ See Golan v. Holder, 611 F. Supp. 2d 1165 (D. Colo. 2009); Yochai Benkler, Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999); cf. infra note 336 and accompanying text.
- ↑ See supra note 233 and accompanying text.
- ↑ See supra note 9 and accompanying text.
