illustrative of the complexities introduced by the evolving statute, whether authors may expressly abandon copyright in their works and dedicate them to the public domain—a question that can no longer be answered unequivocally in the affirmative. After surveying the changes Congress has made to vest rights inextricably in the hands of authors, the analysis turns to a consideration of the statute’s complex provisions governing the termination of licenses and transfers. The evolution of these provisions in the legislation that ultimately became the Copyright Act of 1976, and the pattern of case law construing those provisions, both show that Congress’s attention was focused on redressing unremunerative transfers made by authors in the face of superior bargaining power:[1] a policy that, whatever its normative appeal, clearly has no application to the peer-production phenomenon. The need to address the termination issue draws added force from recent cases applying traditional copyright principles to open-content licenses.
With both the technical and legal aspects of the issue on the table, Part IV considers whether existing doctrine is sufficiently flexible to accommodate a judge-made exception to the statutory termination regime for open-content works. A few tools are available to courts inclined to protect open-content licensees from the prospect of termination by the licensor. The courts might, for example, modify the existing doctrine of copyright abandonment to permit partial, conditional, irrevocable abandonments of copyright rights, to the permanent detriment of authors and their heirs. Alternatively, the courts might extend their current practice of borrowing provisions from the Patent Act when construing the Copyright Act.[2] The Patent Act presently includes several provisions that permit creators expressly to abandon rights in their creations and dedicate their works permanently to the public domain.[3] Courts might interpret the Copyright Act harmoniously with these provisions of the Patent Act as a way of sidestepping the problems that termination of an open-content copyright license would pose. Neither of these solutions, however, is optimal; either would require a reviewing court to disregard seemingly forceful counterarguments, and a court’s receptivity to arguments grounded either in a reformulated abandonment doctrine or in the Patent Act cannot be known with certainty in advance. Such unpredictability, however, only multiplies the present uncertainty surrounding the durability and permanence of open-content licenses.
With no compelling judicial alternatives in view, Part V considers legislative solutions. Congress should recognize the peer production phenomenon as an essential change in the baseline assumptions that prevailed at the time of the Copyright Act of 1976—a change that demands its own recognition in positive law. The better approach, accordingly, would be for Con-
