CC Licensing and Copyright Abandonment

In a fresh law review article Prof. Lydia Pallas Loren explores a number of interesting issues concerning Creative Commons licensing.

The article proposes to apply a doctrine of partial copyright abandonment to resolve legal issues that may occur if the licensor files an infringement suit against the licensee for performing acts that are authorized under the CC license. This approach rejects a possible interpretation of the CC license as a revocable grant of permission that the licensor can terminate at will. This way, people who use CC-licensed works under the terms of the license should not fear that copyright holders will attack the validity of the license by invoking various contract law doctrines.

This solution should also remedy the problem concerning statutory termination rights that generally allow rightholders to terminate transfers and licenses after a period of 35 years. Statutory termination provisions would not apply to acts that are covered by the exclusive rights on the one hand, but are allowed under the CC license on the other hand. This result would be plausible if the license manifested, in fact, a partial abandonment of rights, not a "transfer or license of copyright" captured by the termination mechanism. Clever.