VI. Conclusion
For the open-content movement, termination is a problem worth solving. Open-content advocates have skillfully leveraged copyright concepts to create a vibrant and growing commons of freely reusable creative works of many types—a grand achievement given the proprietary production paradigm implicit in the language and structure of the Copyright Act. The new open-content commons rests upon a set of remarkable licensing instruments that use the architecture of control as a means to create freedom. That freedom, however, finds itself imperiled by other provisions of the statute, provisions that have been insufficiently scrutinized to date for their possible effects on the open-content commons. If applied according to their literal terms, these statutory clauses cloud the question whether the open-content commons is sustainable. The issue has not yet been adequately presented due to the lapse of insufficient time. Fewer than thirty-five years (the statutory minimum) have elapsed since the widespread adoption of open-content licensing arrangements. Absent preventive action, however, termination problems may substantially complicate open-content projects in the future.
The natural inclination for open-content advocates would surely be to seek to solve the problem through skillful redrafting of the governing licensing instruments. The CC0 license, while not without flaws, reflects the best recent thinking in this regard; it recognizes its own potential infirmity under existing law and supplies an alternative means to effectuate the licensor’s intent.[1] The same statutory provisions that create the termination problem in the first place, however, simultaneously limit the curative power of private drafting arrangements. Because the statute expressly overrides licensing agreements that purport to limit or deny authors’ termination rights, the simplest and most direct private responses to the risk of termination are effectively off the table. Furthermore, although some courts have suggested that licensors can postpone the termination issue by relicensing their own prior grants of rights,[2] requiring open-content licensors to (for example) continually execute new instruments that supersede their own prior grants of rights to the public would provide, at best, a cumbersome way of avoiding the termination problem.
Judicial action, too, may be inadequate to the task. On the one hand, courts do carry substantial policymaking responsibilities in copyright matters, certainly more so than in other areas that are nominally governed by statute.[3] On the other hand, ours is a textualist age, and judges have warned (in other contexts) against looking outside the enacted text to ascertain Congress’s intent.[4] A court presented with an actual attempt to terminate an
