Welcome to the blawgosphere for Professor Tom Ulen, a leading law-and-economics scholar with a leading license plate (I kid you not: LAWECON). Professor Ulen has a much more nuanced and much less "the business of America is business"-like view of economics, law, and so on, which is a refreshing change from the factionalism too common in L&E scholarship.

One comment that he made a couple of days ago concerning the Creative Commons license requires a couple of additional remarks. From me, since I apparently inspired the entry. (Whether that is a good thing or not…) The CCL purports to "renege" on copyrights. Unfortunately, the longest guaranteed-valid term for such a license is thirty-five years, due to the operation of 17 U.S.C. § 203 (or, for works first published before 01 January 1978, § 304(c), but for other reasons that probably can't happen). Admittedly, for the vast majority of works that might be published using a CCL, that's more than long enough; of course, that's true for copyright in general.

I can sense that someone, somewhere, is trying to figure out what § 203 does. (Frankly, it's so badly drafted that I suspect most practitioners and professors who haven't been confronted with a live dispute haven't, either.) Basically, it allows the author, or certain of the author's heirs, to revoke/terminate the publishing contract thirty-five years (or so; just trust me, the mechanics are enough to leave one with nightmares) after initial publication. On its face, it seems like the CCL merely overrules this particular provision for that particular work. Not so fast; the Act prohibits agreements that would assign or otherwise promise not to exercise these rights! That is, no matter what the CCL says, it cannot overcome the revocation/termination right.

And that is just the beginning; there are textual (and other, more-compelling) reasons to believe that, under the 1976 Act and the Berne Convention, a statement that a work is "dedicated to the public domain" is essentially meaningless. In the end, all the CCL constitutes is a promise not to attempt to enforce the copyright; but that promise has a statutory sunset, and in any event may not be enforceable.

I don't oppose the CCL; in fact, I think it fills a necessary niche in the ecology of intellectual property and reuse thereof. It does not, however, do what many digerati think it does; and, therefore, like virtually everything else in the law, remains imperfect.