A Pragmatic Workaround for Perpetual Copyright

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Article I, Section 8, Clause 8, United States Constitution

One of the few Congressional powers specifically enumerated in the Constitution over two hundred years ago allows for the protection of intellectual property rights for a limited period of time.  Limited is, like much of the Constitution, intentionally vague.  In theory, depending on the whims of the judiciary in place, limited could be defined as anything up to the heat death of the universe.  Recent judgments put this within the realm of possibility.  I will not use this space as a discussion (rant) about copyright law or reform, mostly because there are much better and more interesting places to read about that.  I will, however, describe my experiences as a user of copyright and propose a workaround for some of its woes.

The Copyright Act of 1976, as confirmed in Kahle v. Gonzales, changed copyright from an opt-in system requiring registration to an opt-out system, in which any copyrightable work is automatically copyrighted upon publishing.  That means that without any intervention on my part, under current copyright law and assuming no further extensions, this blog post will enter the public domain April 25th, 2080 if I croak immediately after hitting the Publish button.  As my red meat intake has been limited recently and Congress is still in the pocket of big business, I expect the actual date will be much later.

Many rightly find this unreasonable, hence the rise of the copyleft and free culture movements.  Practically perpetual copyright isn’t so bad when the work is opened by a permissive license like Creative Commons Attribution or three clause BSD or a reciprocal license like the GPL.  Or is it?  If in 2134, a brain hacking hobbyist decides she wants to repurpose and distribute a Python game I wrote in 2009 as a retro eyesaver, should she really have to include the ISC license stating that my corpse disclaims all warranties including implied warranties of merchantability and fitness?  I argue that in a sane society, she should not, as the work would long have been in the public domain.  However, the license I attached to the work will remain valid for the entire absurd length of its copyright.

I propose a simple workaround for this problem: a self-destruct wrapper for licenses.  That is, a legal instrument by which the owner of a work can specify that he or she voluntarily and automatically relinquishes the work into the public domain after a specific number of years.  This is à la carte copyright, in which the creator may choose a length that seems sane, like the 14 years we started with in 1790.  This also has the effect of trumping any further extensions Congress may enact to keep Steamboat Willie in the vault, preventing a work I publish today from remaining under copyright in 3010.  One could use such a wrapper on any license, permissive, reciprocal, or restrictive.  An individual or company could profit from a work for a period of time of their choosing, and automatically grant it to the betterment of society at the self destruct date of the license.  A software developer can protect a piece of code from going proprietary with the GPL today without forever limiting projects that use it to a copyleft license.  I could protect myself from exploitation by marking a photograph I’ve taken as CC by-nc-nd for now without preventing its public use long after my death.

I can’t even pretend to be a lawyer, but here’s a proof of concept ripped from a piece of the Creative Commons Zero license.

Upon the date of publication, the License shall be deemed effective.  Upon
X years from the date of publication, the Waiver shall be deemed effective.
To the greatest extent permitted by, but not in contravention of, applicable
law, Affirmer hereby overtly, fully, permanently, irrevocably and
unconditionally waives, abandons, and surrenders all of Affirmer's Copyright
and Related Rights and associated claims and causes of action, whether now
known or unknown (including existing as well as future claims and causes of
action), in the Work (i) in all territories worldwide, (ii) for the maximum
duration provided by applicable law or treaty (including future time
extensions), (iii) in any current or future medium and for any number of
copies, and (iv) for any purpose whatsoever, including without limitation
commercial, advertising or promotional purposes (the "Waiver"). Affirmer makes
the Waiver for the benefit of each member of the public at large and to the
detriment of Affirmer's heirs and successors, fully intending that such Waiver
shall not be subject to revocation, rescission, cancellation, termination, or
any other legal or equitable action to disrupt the quiet enjoyment of the Work
by the public as contemplated by Affirmer's express Statement of Purpose.

Since I am not a lawyer, I have no idea if a self-destructing license is legally possible.  I would like to get lawyerly advice on the idea before I start attaching it to my projects, but this is certainly something I plan on using.  Hopefully it appeals to others too.  Since the bug fix for perpetual copyright isn’t coming any time soon, this workaround will have to do.

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