open-content license may perceive the absurdity of the request, may be cognizant of the absence of any possible overreaching by the licensees, and may even regret the harm to the information commons that would surely follow were the request to be granted; yet, the court may nevertheless believe itself obliged to honor the statute’s command that any “exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright”[1] is terminable by the author or her heirs. That leaves remedial legislation as the best, and likely only viable, alternative to cure the termination problem for open-content licenses.
Legislative recognition of the effectiveness and permanence of open-content licensing arrangements would place a safety net under the emerging information commons. It would validate commons-based peer production as an alternative mode of creating value entitled to stand on equal footing with the institutional monopolies of copyright. It would confirm, as a matter of statutory law, what has been clear in the marketplace for many years—that open-content works include mature products perfectly capable of competing alongside copyrighted proprietary works on their merits. It would align the law with the reasonable expectations of authors (numbering in the millions in the United States alone) who write open-source software, contribute photos to Flickr, add content to Wikipedia or its sister sites, build architectural edifices in Second Life, or write weblogs, all while expecting and intending that their contributions will forever remain available for others to enjoy. Finally, it would signal the United States’ intent to remain in the innovation vanguard, while doing nothing to reduce the effectiveness of the ordinary copyright regime for authors and publishers who choose that alternative. For all these reasons, the better course would be for Congress to provide a statutory exception to the Copyright Act’s termination provisions for open-content works.
- ↑ 17 U.S.C. § 203(a) (2006).
Interpretation: Federal Courts And The Law 3, 20 (Amy Gutmann ed., 1997) (“Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.”).
