of termination rights)[1] and permit parties other than the author (if the author is dead) to decide whether termination occurs.[2]
Second, the reliance argument—that members of the public, having reasonably relied on the provisions of the author’s Creative Commons grant, are entitled not to have the grant terminated—is ultimately circular, because the public’s reliance is reasonable only if the grant is not subject to termination in the first instance. A court might just as readily reason that when members of the public receive a grant of rights under an open-content license, they do so with express statutory notice that all such grants are terminable and can have no reasonable basis for relying on the license being permanent.
Third, although Professor Loren correctly notes that the termination provisions seem to apply most naturally to arm’s-length transactions between two named parties, rather than an author’s release of rights to unknown (and unknowable) members of the public,[3] the statutory text imposes no requirements as to the form of the parties’ transaction.[4] Indeed, the statute is conspicuously broad; the termination power extends to any “exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright.”[5] As one court recognized, “common sense, good business judgment and even a modicum of legal intuition dictate that a transfer should clearly name the transferee, [but] neither the statute nor the case law require it.”[6]
In sum, although a new doctrine of limited copyright abandonment may avoid the risks that the termination provisions presently pose to users of works distributed under open-content licenses, it is far from clear that existing doctrine is sufficiently flexible to accommodate such a development.
As an alternative, however, the courts may be able to justify limits on termi-
- ↑ See R. Anthony Reese, Are Creative Commons Licenses Forever?: Authors’ Termination Rights and Open-Content Licensing (Aug. 31, 2009) (unpublished manuscript at 15, on file with author) (noting that the “statute’s policy is clearly to allow the author … to change her mind, terminate [a] transfer, and attempt to resell the recaptured rights,” and that “it is not clear that the same policy should not apply in the Creative Commons situation”).
- ↑ See supra notes 252–54 and accompanying text.
- ↑ See Loren, supra note 315, at 319 (noting that Creative Commons licenses “do not contain an execution date (nor do they contain a signature)” and do not identify licensees to whom termination notices would need to be sent). This characteristic typifies open-content licenses, which do not mimic the form of arm’s-length transactions. See supra notes 30–33 and accompanying text.
- ↑ Professor Anthony Reese has also highlighted sound policy justifications against limiting the scope of authors’ termination rights to those grants signed by the author. See Reese, supra note 320, manuscript at 9–13.
- ↑ 17 U.S.C. § 203(a) (2006); see also id. § 304(c) (termination power reaches “the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it”).
- ↑ Sunham Home Fashions, LLC v. Pem-Am., Inc., 2002 WL 31834477, at *7 (S.D.N.Y. Dec. 17, 2002), aff’d, 83 Fed. App’x 369 (2d Cir. 2003). It would be odd, as well, to hold nonexclusive licenses to a higher standard of formal regularity than actual transfers of copyright ownership.
