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.

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 another’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.  I’ll post the abstract of the paper after the jump.

Here is the abstract:

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used “open content” licensing arrangements, such as the GNU General Public License (”GPL”) for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.

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.

Would love to hear any feedback.

[T]he most difficult challenge — both to grasp and to solve — of the cloud is its effect on our freedom to innovate. The crucial legacy of the personal computer is that anyone can write code for it and give or sell that code to you — and the vendors of the PC and its operating system have no more to say about it than your phone company does about which answering machine you decide to buy. [snip] This freedom is at risk in the cloud, where the vendor of a platform has much more control over whether and how to let others write new software.

If you think about info/law very much, none of this is quite new. And as I have said before about Zittrain’s work, I think he is too pessimistic about the certainty of lockdown (after all, we were worried about the walled gardens of AOL and Compuserve too, and look what happened).

But the danger is real and must be addressed, presumably in large part by the audience who reads the Times op-ed page. JZ is such an excellent communicator and synthesizer, and he conveys the seriousness and complexity of the problem very nicely to a key audience in a format where it is difficult to do that. Go read the whole op-ed right now.

[UPDATE: Adam Thierer does not care for this op-ed at all, and has some interesting responses.]

• The move to Web applications challenges the open source model – copyleft only works if you’re distributing software to your users. With network services, for example, the GPL becomes a permissive license – if you’re running a Web server that is under the GPL, you aren’t distributing the code, so there’s no obligation under the license to provide that code to your users. Web apps thus can undercut open source goals / obligations, and also have the effect of equalizing the various flavors of licenses (BSD, GPL, etc.).

• The Affero GPL seeks to move network-based services closer to the PC-based model for open source licensing – the AGPL modifies the GPL’s bargain by linking the source provision requirement to the modification of the underlying code and its distribution user interaction over a network [Update 26 May: Aaron corrected me!]. Copyright remains the fulcrum: modification (creation of a derivative work) gives the license its grip, ensuring that users have access to source code. In addition, the AGPL reduces vendor lock-in: if the vendor goes out of business, or begins behaving badly, users have the code. However…
• Data is the primary challenge to open source in cloud computing – access to source doesn’t help much if the data from a Web application remains inaccessible. Often, the only interface to a Web application’s data is via the site itself – if there’s no API, or a limited API, the transaction cost of shifting to a different vendor or application increases dramatically. This may be particularly acute for financial or business data.
• The set of social relationships that is critical to the Web – think Facebook – isn’t yet addressed by the open source model. Being able to set up your own version of Facebook is effectively worthless if you can’t migrate the social connections that characterize social networking. It’s hard to replicate the value of a Web community by taking the underlying code and installing it on your computer or server. (How well would “Bambauer’s Book” fare if I decided I was sick of Facebook and wanted to start my own?) Network effects can thus create lock-in.
• There are three key challenges in a world of cloud computing: data portability, privacy (typically governed by contract, but think also about Fourth Amendment issues), and compatibility (particularly protecting the integrity of social relationships during migration). Before networked apps, access to source took care of these concerns – you could examine both the data formats and how the data was processed by the code to address concerns. Terms of service – the parameters of the relationship between the user and the networked service – thus become critical in addressing these worries for cloud computing…
• For the GPL model to migrate to networked services, copyright and licenses aren’t enough – we also need technological features that protect user freedoms. This becomes difficult to mandate, though, as the universal applicability of copyright no longer does this work for us. To enable user autonomy, for example, data has to be portable, which means that network services must provide APIs to communicate with other services. Take for example LiveJournal – the code is under the GPL, but there’s no way to get access to all of the relevant data that a user creates and depends upon. In terms of data security, banks have become a model for why protected is needed.
• To replicate the GPL model for Web services, we need three things: 1) access to source, 2) carefully designed terms of service, and 3) technological features (such as data APIs).
• Aaron identified Identi.ca, a micro-blogging service ( = like Twitter), as a key proof of concept for open source Web services. It’s licensed under the AGPL v3 (#1 above). The service’s ToS specify which data is private and which is not (#2 above) – private data isn’t shared, but is only used to provide services to users, and Identi.ca will only turn data over to the government under a court order. The service also describes exactly what it does with the public data it stores, constraining its freedom with regards to that information. Finally, Identi.ca has an API (a clone of the Twitter API, evidently) that lets users get their data out of the service (#3 above). Users can also export relationships in a standardized format (Friend of a Friend). Identi.ca addresses the vendor lock-in concern by implementing the Open Authorization protocol, which allows separate instances of the network software to communicate with each other. This enables interoperability without exposing private data. If you want, you can have your own Identi.ca version – and it can talk with other versions! For Twitter addicts, Identi.ca will talk to Twitter (well, at Twitter) if you have an account for Tweeting.

I thought Aaron’s talk was absolutely fascinating. The key worry that remained with me is that we’re really dependent on vendors to make the open source model work: if they don’t enable tech features, such as data APIs, or put together obnoxious terms of service, we won’t get the equivalent of the GPL’s freedoms in the networked services world. It’s not clear how to counteract this – Aaron is bullish about best practices and the example set by services such as Identi.ca – but at least, thanks to Aaron and SFLC, we have an accurate sense of the challenges.

Now if we can just get the law review editors to stop insisting on Microsoft Word, we will be getting somewhere.

As I wrote when the Democrats took over Congress in 2006, these are not usually partisan issues and a switch in party control did not herald much change. At the time I especially lamented that Rep. Howard Berman (D-CA), who is wonderful on many issues but a relentless promoter of MPAA positions down the line on IP and communications law, was likely to take over the helm of the main intellectual property subcommittee. He did. Now, however, Lantos’ death opens up the chairmanship of the full House Foreign Affairs Committee. The chances that Berman will ascend to this post exceed 99% and, because members can hold only one chair at a time, someone else will get his IP spot. The next in line is Rep. Rick Boucher (D-VA), whose position on Info/Law issues is just about the exact opposite of Berman in every way. Indeed, as I also said back in ‘06, there is no one else in Congress with nearly the same emphasis on balanced information policy, with a special focus on library issues and fair use.

Now, as the Ars Technica story makes clear, one should not overstate the importance of this change. Berman will still sit on the IP subcommittee. The full Judiciary Committee will still be chaired by Rep. John Conyers (D-MI) who, while not ferociously wedded to the content industries like Berman, is at least going steady with them. (Again, I like Conyers in other ways too — but Info/Law is a funny issue in Washington…) And, of course, the general inertia in Congress against reform in these areas is great. But Boucher could do some fun stuff, including holding hearings on subjects Berman would ignore (DMCA abuses anyone? Digital libraries?). Perhaps he can move bills that were DOA in a Berman-chaired committee. One more caveat: Berman can keep both chairs temporarily, so the transfer to Boucher may not occur immediately. But since Boucher and Berman both hold safe seats and it is extremely unlikely that the Democrats will lose control of the House, it will happen eventually. (And my perusal of the current committee rosters suggests that Boucher has no other juicy chairs coming his way for a long time…)

The question: do Linux folks care? Do Notes proponents care? Even Linus Torvalds is a skeptic about Linux on the desktop. (Sorry, Tim!)

The fun part is that this is the sequel to Symphony – the original, released in 1984, ran on DOS and was named by John Dvorak as one of the 10 worst software disasters. (Symphony is #4, Microsoft Bob is #10. That hurts.) Thus, IBM is recycling a trademark – and one with questionable associations to boot. (That “boot” may take a while if you use Windows.)

From a classical trademarks perspective, this makes sense. Trademarks allow IBM, as the Lanham Act tells us, to “identify and distinguish [its] goods… from those manufactured or sold by others and to indicate the source of the goods.” Computer users see “Symphony” and know immediately that IBM produces the software. (Let’s assume the users understand that IBM bought Lotus back in the 1990s.) As law students learn, trademarks help reduce consumers’ error costs by helping them find goods generated by a particular producer.

But trademarks do much more than that, and this is what interests me. Do you think Ford has plans to revive the Edsel? No? After all, car consumers probably know instantly that Edsel = Ford. But they also think Edsel = lemon. Trademarks indicate not only source, but also product characteristics. The challenging part is that those characteristics aren’t stable – Symphony, Tab, Taurus – and it’s not clear why we protect a brand trademark that may no longer usefully convey information about what the product is rather than who it’s from.

Technically, trademark law has a tool for this: abandonment. If you take actions that cause your brand to “lose its significance as a mark,” then your mark can be canceled – and your competitors may move to do so. But abandonment is difficult to show, and courts are reluctant to find abandonment. Moreover, it’s not clear what “significance as a mark” means. When Ford slaps Taurus on an entirely different model – the Five Hundred – car buyers still know instantly that the model is a Ford. They just don’t know what the car itself is like. So, if “significance” means only “source designation,” then abandonment doesn’t work well.

I think we need a legal tool to police moves by mark owners that may lead consumers astray when a mark for a model or product type – think iPod or Blackberry – no longer accurately reflects the product’s characteristics. There are at least two hard problems here. First, producers need to innovate; freezing consumer expectations at a given point in time is not helpful. Second, how do we measure and capture the key characteristics of a product that consumers associate with a mark? How much does Coca-Cola have to change the drink before we force them to call it New Coke? I’d love your thoughts on this.

The IFE runs Linux, boots over the network and has a full qwerty keyboard. All the processing is done locally, with the media residing on three servers living in the rear cargo area. Every seat includes 110v power, ethernet jack and USB ports. The USB ports are handy for charging your iPod or Blackberry, but you can also plug in a keyboard to use with the IFE. There are even two wifi base stations onboard, with internet access promised sometime next year.

*     *     *

I had erroneously believed that use of Open Source as a competitive advantage was no longer possible. I thought that the agility and cost benefits had spread across all industries in the same way it has taken over Wall Street. It was surprising to me to hear that Open Source technologies and a modern service-oriented architecture drastically lowers costs for Virgin and increases the speed of innovation. There is no surprise when you hear that most of the IT staff don’t come from an airline background, but are Silicon Valley engineers. I wonder what other industries are ripe for an technological infusion to shake them up?

Those of us living in flyover country won’t get to sample this creamy tech goodness ourselves any time soon (and, just looking at the photos of the plane’s interior, I’m not quite sure I ever want to experience quite so much purple in my environment). Still, it will be fascinating to see whether VA’s enthusiastic embrace of open source prompts any competitive responses from larger carriers (such as our local behemoth here in Cincinnati), who seem forever to be hunting for new ways to cut costs.

Starting with the fourth issue of our ninety-ninth volume and moving forward, all of our content has been, and will continue to be, available as a PDF download through our past issues tab. As a result, anyone will be able to find Northwestern University Law Review content using an internet search engine, and download it for free. Furthermore, we will maintain a fully permissive policy regarding authors who wish to post drafts of their forthcoming articles to SSRN, Bepress or other locations on the web. That’s the easy part.

The hard part is that we are currently sitting on a mountain of information which is not readily convertible to PDF format — nearly 100 years of scholarship published solely in print in the Law Review. We are committed to making this information freely available as well. However, the technical and financial challenges that accompany scanning the mountain of material that was published before PDFs existed make this a project that will be ongoing, and contingent on donated funding.

This is really wonderful news, particularly the part about bringing the Review’s older printed material into the modern era of digital permanence. But I still think that Larry Solum’s “three cheers for the Northwestern University Law Review” is too generous by a factor of one cheer.

Issuing current scholarship in PDF format makes a certain amount of logistical sense. What was a relative rarity (although not at all unheard of) when I went to law school is now commonplace: spurred by economic considerations, more and more journals have taken the digital typesetting process in-house. Articles are edited in digital format (chiefly Microsoft Word, it seems) and laid out according to the journal’s own in-house templates, yielding a final PDF copy that can then be transmitted electronically to be printed and bound. Because the journal is going to produce a PDF copy anyway for its own purposes, it takes little extra effort to post the PDF online, and voilà, you’ve gone open-access.

But in circumstances where a journal wouldn’t be producing PDFs for independent in-house reasons (such as when digitizing one’s back catalog), why standardize on PDF? PDF is fine, but it’s still a proprietary format. It’s a proprietary format that makes sense when one needs to preserve the exact layout and formatting of a page to be printed, but why do that with the older issues? Why not simply convert to HTML/XHTML/XML instead?

Posting journal articles online in a truly open format like HTML is a way of bringing those articles, even older articles, into the contemporary debate in a way that PDF can’t hope to match. To take only two examples:

• If an HTML-ized article has been properly tagged, other web sites can hyperlink directly into the portion of the article they’re citing. I can write an article with a link that takes the reader directly into the portion of the 100-page original piece that I’m most interested in. It’s needlessly clumsy to give a reader a link to a PDF-format article and then tell them to manually locate page 478 within that article to find the part you’re citing. This is one of the limitations of the printed page that the Web potentially frees us from, if we simply take advantage of it.
• Cutting and pasting text from a PDF for purposes of quotation is a dicey proposition. It’s altogether impossible if the PDF has been generated as a scanned series of images instead of as OCR’ed text; and even if there is text within the PDF that can be copied-and-pasted, the original’s formatting may come along for the ride. This necessarily entails removing surplus line breaks, deleting surplus hyphens, and generally “fighting” the page formatting of the original piece in circumstances where it’s no longer relevant.

Even where the original page formatting is important for some reason—such as for the purpose of enabling pinpoint cites—that alone isn’t a sufficient reason to use PDF, it seems to me. For example, FindLaw posts Supreme Court opinions in HTML format, with the original page breaks maintained intact through small intralineal notations in a different color. Unobtrusive, but sufficient to permit citation (and hyperlinking!) directly to the pertinent page of a decision.

None of this is meant to detract from the value in what Northwestern is doing, and it would be wonderful to see other journals follow suit. Many of the big-name law reviews have decades’ (and in some cases, more than a century’s) worth of important pieces in their stacks that aren’t accessible online in any form (even in the big-name commercial research databases, which go back only so far). It would be wonderful to get all those resources online in freely accessible format. Those who strive towards the goal of open access, though, would do well to consider that the greatest strides will come from choosing the most open formats available.