Courts that have considered the abandonment question have generally concluded that abandonment is an all-or-nothing proposition; an abandonment is effective only if the author renounces all rights in the work.[1] This rule may limit courts’ receptivity to arguments that an author has abandoned her rights, because the consequence of accepting the argument is that the author loses all rights to prevent any copying or other use of the work.[2] Judicial reluctance to impose such severe consequences, absent the most unequivocal indication that such was the author’s intent, may do much to explain the comparative scarcity of cases finding abandonment of copyright.[3]
For whatever reason, however, it seems difficult to avoid the conclusion that the doctrine of copyright abandonment is presently something of a paper tiger.[4] Courts refuse to apply the doctrine in nearly every case. In many, perhaps most, of the decisions in which the abandonment doctrine is cited with approval, the doctrine is unnecessary to the resolution of the case. Copyright abandonment, accordingly, thus likely does relatively little to counteract the strongly proprietary trend of recent statutory enactments, which have collectively tended to restrict the entry of new works into the public domain.
3. Abandonment by License
Perhaps influenced by highly restrictive judicial interpretations of the copyright abandonment doctrine, open-content advocates have sought to facilitate the growth of an expressive commons by drafting what are, in essence, copyright abandonment licenses—instruments that seek to express, with maximum clarity, an author’s attempt to abandon copyright and dedicate a work to the public domain. These projects remain both incomplete and untested. The very breadth and specificity of the extant abandonment licenses, however, only underscores the complexities entailed in seeking to depart from the strongly proprietary regime of current law.
- ↑ See, e.g., Paramount Pictures Corp. v. Carol Pub. Group, 11 F. Supp. 2d 329, 337 (S.D.N.Y. 1998) (“Defendants invite the Court to boldly go where no court has gone before and recognize the doctrine of limited abandonment. The Court declines the invitation.”), aff’d mem., 181 F.3d 83 (2d Cir. 1999). But see Micro Star v. FormGen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) (“abandoning some rights is not the same as abandoning all rights”); Fishman, supra note 182, § 6.02[3] (questioning whether rule against limited abandonment still makes sense in view of divisibility of copyright under the 1976 Act).
- ↑ It is for precisely this reason that some authors have suggested altering abandonment doctrine to permit partial, conditional abandonments of rights under copyright. See infra Part IV.A.
- ↑ See also Johnson, supra note 70, at 400 (noting that one consequence of according a work public-domain status is that it may be reused in ways objectionable to its author).
- ↑ See 2 Patry, supra note 157, § 5:155 (“It is difficult to fathom how, in ordinary circumstances, one can be deemed to have abandoned one’s copyright in a system of formality-free, automatic protection, and where one can pick and choose whom to sue.”).
