visions that might affect the economic or competitive interests of market incumbents, accordingly, are unlikely at present. This places some of the more far-reaching copyright reform proposals that have been articulated—such as curtailing copyright holders’ power to control derivative works,[1] drawing other bright-line boundaries that limit the scope of copyright holders’ rights as against members of the public,[2] or resuscitating statutory formalities[3]—off the table almost irrespective of their merits in supporting a sustainable commons. It is also probably too much to expect Congress to revisit the statutory termination regime itself, in view of the effects that amendments to this portion of the statute would have on both authors and publishers, although it seems quite debatable whether the termination regime has in fact accomplished its purpose.[4]
More narrowly targeted statutory reform, however, may enjoy better prospects.[5] The unintended threats that the statute’s termination provisions pose to open-content licensing schemes may be remedied without affecting the remainder of the statute. Statutory amendments to protect open-content projects from the risks of termination might take two forms. Congress might amend the statute’s termination provisions to exclude certain transfers and licenses from their scope, much as the statute presently excludes works made for hire and transfers by will.[6] In the alternative, Congress might empower a government agency to promulgate exceptions to the statute’s termination regime, much as the Librarian of Congress presently enjoys the power to craft exceptions to the statutory anticircumvention provisions of the Digital Millennium Copyright Act.[7]
- ↑ See Derek Bambauer, Faulty Math: The Economics of Legalizing the Grey Album, 59 Ala. L. Rev. 345 (2008).
- ↑ See David Fagundes, Crystals in the Public Domain, 50 B.C. L. Rev. 139 (2009). In view of the influence that copyright holders presently exercise in the legislative process, see supra note 359, it seems unlikely that any bright-line copyright “metes and bounds” would be drafted in a way that expands, rather than curtails, the scope of uses for which members of the public do not require the copyright holder’s permission.
- ↑ See Christopher Sprigman, Reform(aliz)ing Copyright, 57 Stan. L. Rev. 485 (2004).
- ↑ See Samuelson, supra note 358, at 566–67 n.101; see also supra note 266 and accompanying text.
- ↑ In the present political climate, the likelihood of enacting any proposed copyright amendment likely varies inversely to its perceived effects on the existing balance of power as between publishers and users of expressive works. See Jessica Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 27, 357 (1989) (“Every proposal to change the status quo has received opposition from some camp on the ground that it would remove a perceived advantage enjoyed under current law.” (footnote omitted)). But see Samuelson, supra note 358, at 556 (“Even modest reform efforts . . . have encountered difficulties in reaching consensus.”). This Article’s focus on incremental reforms tailored to the specific problem at hand carries no implication that more far-reaching copyright revisions are in any way normatively undesirable, only that they are unnecessary to solve the termination problem for open-content licenses.
- ↑ See supra note 243 and accompanying text.
- ↑ See 17 U.S.C. § 1201(a)(1)(B)–(D) (2006); Armstrong, supra note 130, at 8 n.28 (noting limited reach of DMCA exemptions approved by Librarian to date).
