be analogized to a transaction in which a powerful licensee pressures an author into an unremunerative exchange. The Copyright Act’s termination provisions were enacted to strengthen authors’ resistance to such pressures, and courts may rightly question why the statute should be applied in circumstances, such as open-content licensing, where these pressures are manifestly absent.
A. Modifying Copyright Abandonment
Professor Lydia Pallas Loren recently made a cogent and forceful argument that Creative Commons licenses should not be subject to termination.[1] Professor Loren noted that allowing a licensor to “terminate” a Creative Commons license and recapture full ownership of copyright in the licensed work would be unjust in two distinct respects. First, it would flout the intent of the author as expressed at the time the work was created.[2] Second, it would unfairly surprise members of the public who reasonably relied on the author’s assurances that the content was free to copy.[3] Professor Loren concluded that the courts should craft a new doctrine of limited copyright abandonment that would preclude application of the Copyright Act’s termination provisions to grants that are (1) overt, (2) clear, and (3) to the public.[4] Although Professor Loren focused her analysis on the Creative Commons family of licenses, the definition she proposed to employ for limited copyright abandonment would apply equally to other open-content licenses (or, indeed, to an author’s express abandonment of copyright in a work).
Nevertheless, it may be a mistake to rely too heavily on the courts to create a novel doctrine of limited copyright abandonment. Precedent is against it, as Professor Loren recognized.[5] A number of considerations, moreover, may make the courts less inclined to resist the force of stare decisis here.
First, although permitting termination of a Creative Commons license would be inconsistent with the intent of the author at the time of publication, the statute’s termination provisions make the author’s original intent non-dispositive:
they allow authors to change their minds (by forbidding waiver
- ↑ See Lydia Pallas Loren, Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright, 14 Geo. Mason L. Rev. 271 (2007).
- ↑ See id. at 297 (arguing that when an author elects to “select[ ] a semicommons status for his work” rather than full copyright protection, “the law should recognize the binding nature of that commitment.”).
- ↑ See id. at 295 (“When a work is marked with a notice that it is licensed under a Creative Commons license, the public is informed that instead of the default rules of copyright law, some uses that copyright law would prohibit are instead permitted.”).
- ↑ Id. at 323–24.
- ↑ See supra note 208 and accompanying text.
