licensed works and impose enforceable conditions upon the exercise of those rights.[1]
The ongoing vitality of “commons-based peer production”[2] of informational goods depends critically upon the assumption that the governing licenses will make earlier users’ contributions freely available in perpetuity for later users to copy, modify, and redistribute.[3] The termination provisions of the Copyright Act, however, may call that assumption into doubt. Nothing more definitive may yet be said, for the peer-production phenomenon is sufficiently recent that issues of termination have not yet arisen.[4] The courts have not considered, for example, whether a computer programmer may release software code to the public under commonly used software licenses such as the GNU General Public License (“GPL”)[5] or the BSD License,[6] and then “terminate” that license many years later and recapture all of the exclusive rights that ordinarily accompany ownership of copyright in a work. Nor has precedent established whether the author of an expressive work published under a Creative Commons license[7] may later terminate the license and sue anyone who distributes or remixes the work (in reliance on the stated terms of the license) for copyright infringement. Nor do we know, to take the most extreme example, whether an author may use the statute’s termination provisions to rescind her own express dedication of a work to the public domain,[8] although countervailing policy considerations may weigh particularly heavily against allowing termination in this instance.[9] The point is simply that the Copyright Act’s termination clauses may, by their terms, reach some or all of these situations, even though none of these scenarios presents the problem of unequal bargaining power that motivated Congress to enact the termination provisions. Particularly when one considers that the Copyright Act allows persons other than the original author to terminate a license in some circumstances,[10] the possibilities for gamesman-
- ↑ See infra notes 277–85 and accompanying text.
- ↑ This is Yochai Benkler’s useful formulation, which concisely encapsulates a number of complex analytical constructs. See Benkler, supra note 11, at 59–132; Yochai Benkler, Coase’s Penguin, or, Linux and The Nature of the Firm, 112 Yale L.J. 369, 375 (2002).
- ↑ See, e.g., infra notes 74–76 and accompanying text.
- ↑ The first version of the GNU General Public License (“GPL”) for software, for example, was issued in 1989. See Free Software Found., GNU General Public License Version 1.0 (1989), http://www.gnu.org/licenses/old-licenses/gpl-1.0.txt [hereinafter GPLV1]. As discussed below, the most likely applicable statutory termination provisions do not take effect until thirty-five years after the execution of the transfer or license. See infra note 244 and accompanying text. It will be some years, in other words, before the earliest works licensed under GPLv1 become subject to possible termination. See infra notes 294–96 and accompanying text.
- ↑ See infra notes 50–76 and accompanying text.
- ↑ See infra notes 80–88 and accompanying text.
- ↑ See infra Part II.C.2.
- ↑ See infra Parts III.A.2–3.
- ↑ See infra notes 311–12 and accompanying text.
- ↑ See infra note 253 and accompanying text.
