"Shrinking the Commons": Today, Linux Is Open-source. Tomorrow, â€¦?
Thursday, August 27, 2009 at 10:11 AM EDT
I spent the summer finishing up a paper that I have been working on (off-again, on-again) for the better part of a year. The result is Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public, and itâ€™s now available on SSRN. Readers of this blog with an interest in copyright law and the open-source/peer production phenomenon may enjoy the paper.
The paper grew out of a seemingly simple question I tried to answer a couple of years ago, namely: if I put something into the public domain, can I take it out again? On the one hand, it seems like the answer would have to be â€œnoâ€ for policy reasons; otherwise, what happens to all the people who might have relied on the public-domain status of the work to create their own derivatives and remixes? But on the other hand, the copyright statute in the U.S. includes some fairly obscure provisions that seem to allow authors to change their minds any time they transfer ownership of their work. Those provisions exist to solve a completely different problem, but if applied literally, they could make it possible for authors to rescind a dedication of their own work to the public domain. As I discuss in the paper, there might be some constitutional problems with that outcome, and downstream users of a (formerly) public-domain work may be able to raise a number of valid equitable defenses to any claim of copyright infringement. But as a purely statutory matter (as many others have recognized), itâ€™s hard to find a basis for upholding a permanent, irrevocable dedication of oneâ€™s copyright to the public domain.
I argue in the paper that these parts of the statute may create a big headache down the road for the open-source software community, and for other large-scale informational projects (like Wikipedia, for instance) whose legality depends on the provisions of specialized copyright licenses. Legally, all those projects rest on an interlocking set of permissions among contributors to reuse one anotherâ€™s work. But under the statute, any of those permissions can be revoked in the future, even if the contributor promised not to. Possible problem: what happens when somebody who contributed code to an open-source project many years ago revokes permission to continue using their work?
In the paper, I take a couple of stabs at creatively reinterpreting existing copyright law to fix the problem, before ultimately throwing up my hands and kicking it over to Congress. Iâ€™ll post the abstract of the paper after the jump.
Here is the abstract:
Would love to hear any feedback.
This article originally appeared on Info/Law.