September 16, 2009
If You Put Something into the Public Domain, Can You Take It Out Later?
One of Cincinnati Law's better young gun law profs, Tim Armstrong, has deposited Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public in SSRN. The article addresses the possible consequences of one of the worst features of U.S. copyright law, termination-of-transfers as it may apply to open source licensing arrangements, such as the GNU General PublicLicense ("GPL") for software, or the Creative Commons family of licenses for other expressive works.
On his highly recommended blog, INFO/LAW, Armstrong writes
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 “no” 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), it’s hard to find a basis for upholding a permanent, irrevocable dedication of one’s copyright to the public domain.
From the article's abstract:
Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public - a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.