gress to amend the statute to place open-content licenses outside the reach of the Copyright Act’s termination clauses.
II. Open-Content Licensing
A. The Public Benefit of Open-Content Licenses
In recent years, a vast body of content has been created and distributed under licenses that grant unspecified members of the public rights that, by statute, ordinarily belong to the copyright holder alone. Before discussing the specifics of a few such licenses, it is useful to identify some important commonalities that most open-content licenses share.
First, and most fundamentally, all open-content licenses authorize otherwise unlawful conduct: that is, they expressly permit users of the licensed works to perform actions that would otherwise infringe the licensor’s copyright. Absent authorization (or other legal excuse such as fair or de minimis use), reproducing,[1] distributing,[2] or modifying[3] a work infringes the author’s copyright. Open-content licenses make such otherwise infringing activities lawful and thereby facilitate uses of works that federal law would ordinarily prohibit.
Second, all the open-content licenses considered herein are universally available: the works are offered to all on equivalent terms[4] without the need for individualized bargaining. This is not, of course, to deny the possibility of dual licensing: a prospective licensee dissatisfied with some of the conditions of an open-content license may negotiate with the work’s author for a license on different terms.[5] Absent dual licensing, however, a licensee who
- ↑ 17 U.S.C. § 106(1) (2006) (“the owner of copyright under this title has the exclusive rights . . . to reproduce the copyrighted work in copies or phonorecords”); id. § 101 (defining “copies” and “phonorecords”).
- ↑ Id. § 106(3) (conferring upon copyright owner “the exclusive rights . . . to distribute copies or phonorecords of the copyrighted work to the public” via enumerated means).
- ↑ Id. § 106(2) (conferring upon copyright owner “the exclusive rights . . . to prepare derivative works based upon the copyrighted work”); id. § 101 (defining “derivative work”).
- ↑ One might imagine a licensing regime that permits copying or modification only by members of a defined group, of course. See Benkler, supra note 11, at 61; Lee Anne Fennell, Adjusting Alienability, 122 Harv. L. Rev. 1403, 1430 n.131 (2009) (differentiating “limited-access commons” from “open-access resources”). None of the licensing arrangements considered herein, however, has this feature—which is unsurprising in view of the participation-maximizing goals that most open-content projects share. See, e.g., Eric S. Raymond, The Cathedral and the Bazaar, in The Cathedral and the Bazaar: Musings on Linux and Open Source by an Accidental Revolutionary, supra note 9, at 27, 41–44.
- ↑ See Bruce Perens, How Many Open Source Licenses Do You Need?, Datamation, Feb. 16, 2009, http://itmanagement.earthweb.com/osrc/article.php/12068_3803101_1/Bruce-Perens-How-Many-Open-Source-Licenses-Do-You-Need.htm (last visited May 4, 2010). To be sure, this task may become infeasible as the number of authors of the licensed work increases. It probably is not realistic, for example, to expect a prospective licensee to negotiate a non-GPL license for the Linux kernel given the huge number of contributors to that project whose assent would be necessary. See Molly Shaffer Van Houweling, The New Servitudes, 96 Geo. L.J. 885, 941–42 (2008) (explaining how need to secure assent of “thousands (perhaps tens of
