Abandonment

[Rod Dixon, J.D., LL.M.]

At the outset I think your hypos generally indicate exactly why  a system
that characterizes works in the public domain only by operation of law is
superior, in clarity and consistency, than systems that permit works to
enter the public domain by general declarations or vague dedications.
Generalized attempts to *push* works into the public domain by unrecorded
dedications do not serve the public interest well.

I think the public will not be inclined to freely use works that present
hair-splitting questions regarding their public domain status.  Trying to
*push* works into the public domain in this manner actually discourages use
of such works rather than enhancing the public domain because it becomes
unduly burdensome to determine whether a work has successfully entered the
public domain. Your hypos sem to illustrate this point quite nicely. (Was
that your intent?)  In this regard, open source licensing offers a better
solution than the declarations presented in your hypos because the licenses
do not confuse the status of the works.

Hypo 3 looks like a typical copyright infringement claim. If Roe is a
copyright holder, he has the exclusive rights to control his bundle of
copyright interests. It is unclear whether you were attempting to show
abandonment or forfeiture. Even so, the formailties of the 1909 Copyright
Act no longer apply. As long as Roe has filed a registration with the
Copyright Office, his suit will not be dismissed on the basis of the facts
in hypo 3.  I agree with you in hypo 1.  Doe's copyright infringement suit
probably gets tossed by the court. Doe cannot make a showing that he is the
copyright holder, if the transfer was not recorded. If we have competing
filings, then the court will look to see which one was filed first. I raise
an eyebrow as to whether the "Copyright-Office registered affidavit" is a
competing document i.e. probative of abandonment. As for hypo 2, it is not
exactly clear who Doe is or on what basis he brings suit. Presumably, Roe
transferred his exclusive interests to Doe after he ostensibly transferred
those interests to the public domain (through a dedication)? Roe is clearly
crazy. But, more to the point, once a work *enters* the public domain, it
stays there. Hence, Doe's infringement suit would be dismissed, if a court
could be convinced that a work could enter the public domain in the manner
that Roe has attempted.


>
> Consider a work created by Roe.  You make and distribute copies before
> the copyright term has expired.
>
> Hypothetical 1: You are sued by Doe, who claims to be the
> successor to Roe's
> original copyright.  You produce a Copyright-Office registered affidavit
> by Roe showing abandonment of copyright that predates the
> supposed transfer.
> Doe seems to me to pretty clearly have no case: the assignment of
> copyright
> is an assignment of a nonexistent right.
>
> Hypothetical 2:  You are sued by Doe etc.  You show that the copy that you
> reproduced was manufactured before the supposed transfer of copyright, and
> contains the statement "I dedicate this work to the public domain
> -- Richard
> Roe."  Now the court has to decide which of Roe's two explicit intentions
> is controlling.  I doubt whether Doe has a case, though he might be able
> to assert copyright w/r/t copies that were manufactured under his license
> after the transfer of copyright.
>
> Hypothetical 3:  You are sued by Roe himself this time.  You
> demonstrate that
> Roe's work has been copied openly and with Roe's full knowledge by
> you and others for many years, to Roe's commercial detriment.  Though
> copyright is a creation of statute, an adverse-possession theory looks
> plausible, and may save you.
>
> What do you think?
>
> --
>
> Schlingt dreifach einen Kreis um dies! || John Cowan
> <jcowan at reutershealth.com>
> Schliesst euer Aug vor heiliger Schau,  || http://www.reutershealth.com
> Denn er genoss vom Honig-Tau,           || http://www.ccil.org/~cowan
> Und trank die Milch vom Paradies.            -- Coleridge (tr. Politzer)
>