is willing to observe the conditions stated in an open-content license is free to use the work without the particularized approval of (and indeed, without notice to) the licensor. An unavoidable consequence is that an open-content licensor ordinarily has no way of knowing the identities of all the licensees, for the parties to the license may never communicate.
Third, the universal availability of the content on the terms stated in the license minimizes transaction costs. Open-content licenses are available “off the shelf” to accommodate several types of concerns that may confront users of the licensed works.[1] Use of the works in a fashion consistent with the license entails no greater burden than reading the license; there is no need to incur the expense of negotiating an individual usage agreement (again, assuming that the licensee is satisfied with the conditions stated in the license). Even the burden of reading the license, moreover, is minimized, because a relatively small number of standard-form licenses govern a wide variety of projects available from different open-content suppliers.[2] There is, correspondingly, a diminished need to become familiar with particularized license terms that may vary from one vendor to the next outside the open-content domain.
Finally, combining the foregoing characteristics yields the defining feature of all open-content licenses: they promote freedom. Open-content licenses expressly authorize a large community of users, at their sole election and without further negotiation or expense, to use a variety of works in a manner that would otherwise infringe copyright. In doing so, the licenses facilitate at least some uses that would not otherwise occur. The licenses create, in economic terms, a commons: a pool of raw materials upon which members of the public are free to draw for their own consumptive or productive ends.[3]
The public domain presents a possibly more familiar model of such a commons. Any creator is free to draw from public-domain materials and to incorporate them into her own creation.[4] A growing literature recognizes the
- ↑ See Perens, supra note 31.
- ↑ See, e.g., infra note 50 and accompanying text.
- ↑ See William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 14–15 (2003); Benkler, supra note 11, at 60–62.
- ↑ See, e.g., Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33–34 (2003) (“The rights of a patentee or copyright holder are part of a carefully crafted bargain under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution.” (internal quotations and citation omitted)); Golan v. Gonzales, 501 F.3d 1179, 1193 (10th Cir. 2007) (“each member of the public . . . has a non-exclusive right, subject to constitutionally permissible legislation, to use material in the public domain”); Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 710 (2d Cir. 1992) (recognizing that software developers are free to incorporate public-domain materials and techniques into their programs).
There is, as others have recognized, not a single “public domain,” but many, the contours of which vary depending on the purpose for which the term is used. See, e.g., James Boyle, The Public Domain: Enclosing the Commons of the Mind 38–39 (2008); Pamela Samuelson,
thousands) of contributing users” inhibits relicensing of Linux). But cf. infra notes 141–47 and accompanying text (describing recent successful effort to relicense Wikipedia).
