ABANDONING COPYRIGHT.

• Author: Fagundes, Dave

TABLE OF CONTENTS INTRODUCTION 490 I. CONCEPTUALIZING ABANDONMENT 494 A. Abandoning Property 495 B. Abandoning Copyrights 498 II. THE SOCIAL COSTS OF ABANDONMENT 503 A. The Social Costs of Abandoning Physical Property 503 B. The Social Benefits of Abandoning Copyrights 505 1. Private Welfare Effects 505 2. Public Welfare Effects 509 3. Comparing Creative Commons 516 C. Revealed Preferences and Attempted Abandonment 523 III. THE LAW OF COPYRIGHT ABANDONMENT 528 A. Statutory Silence 528 B. Administrative Agnosticism 530 C. Judicial Uncertainty 535 1. Distinguishing Adjacent Doctrines 536 2. The Unsettled Black Letter Law of Abandonment 540 a. Verbal Disclaimers 541 b. Other Overt Acts 544 c. Partial Abandonment 549 IV. OPTIMIZING ABANDONMENT 552 A. Illuminating a Pathway to Abandonment 554 B. Recalibrating Incentives 558 1. Carrots 559 a. Tax Incentives 559 b. Cash Incentives 561 c. Golden Swan Insurance 562 2. Sticks 564 C. Availability and Abandonment As a Social Practice 566 CONCLUSION 568 INTRODUCTION

Copyright vests automatically, whether authors want it or not. The author of an original work is a copyright holder from the instant that work is fixed in some durable form. (1) But what if you do not want to own a copyright in the photo you just took or the song you just wrote? (2) Or what if, for reasons of personal gain or pure altruism, you want to abandon your existing copyright and place your work in the public domain?

In theory, copyright owners, like owners of chattel property, may abandon their works. (3) In fact, copyright law borrowed its legal test for abandonment from common law property doctrine. (4) In practice, though, it remains far from clear how an author can actually relinquish rights in a work. The Copyright Act makes no mention of abandonment, and there is no standard form to file with the Copyright Office. (5) In light of this, courts have been understandably conflicted about what acts reflect an intent to abandon. (6) And even if the law did offer a clear pathway for authors to abandon their copyrights, there is no single, definitive registry of abandoned works for would-be users to consult. (7)

The uncertainty surrounding these elementary questions of copyright ownership is problematic, in part, because it frustrates abandonment's potential to enrich the increasingly starved public domain. Copyright's constitutional lodestar--promoting the progress of science--presumes a healthy balance between privately owned works and publicly available material. (8) But after decades of unremittingly copyright-holder-friendly reforms, this balance has tipped significantly toward private rights at the expense of the public. (9) Legislation extending the term of copyright and eliminating formal requirements for protection has slowed to a trickle the flow of works into the public domain. (10) In light of these trends, an invigorated abandonment doctrine promises a voluntary means to replenish the desiccated public domain well before statutory expiration of copyright.

The desire among authors to part with their copyrights in order to enrich the public domain is not merely theoretical. Rights holders have attempted to abandon their rights in millions of photos, including hundreds of thousands from the Metropolitan Museum of Art alone. (11) Acclaimed photographer Carol Highsmith sought to abandon her rights in tens of thousands of images donated to the Library of Congress. (12) Likewise, award-winning filmmaker Nina Paley expressed her desire to place her film, Sita Sings the Blues, in the public domain. (13) And more than one hundred thousand software projects hosted on GitHub indicate the developers' intention to abandon copyright. (14) Other times, abandonment arises as a defense, as when InfoWars claimed it did not infringe Matt Furie's "Pepe the Frog" because Furie's public statements indicated that he had abandoned the character. (15) Given the state of the law, however, whether these owners have actually abandoned their copyrights remains unclear. (16)

The disarray pervading the law and practice of copyright abandonment has not inspired much scholarly examination. (17) This is unsurprising. Until the pioneering work of Eduardo Penalver and Lior Strahilevitz, abandonment of physical property received little attention from scholars either. Yet Penalver and Strahilevitz showed that, despite the dearth of attention paid to the topic, abandonment of physical property is a rich topic worthy of careful scrutiny. (18)

Similarly, this Article seeks to illuminate the largely ignored law and policy of copyright abandonment. We make the case that, just as with physical property, copyright abandonment is a question of practical and theoretical significance that deserves greater attention. The very notion of abandoning copyright is fraught with conceptual difficulty. The leading theory of abandonment--unilateral transfer--is an admittedly poor fit for copyright since abandonment results in a public good rather than a resource that can be claimed by a particular owner. (19) Moreover, the thing protected by copyright--the work of authorship--is an abstraction, rather than a corporeal object. (20) So while one can conceive of easy ways to abandon a chattel--putting your old TV on the curb with a sign reading "free," for example--expressing your intention to abandon rights in a work of authorship presents a much thornier challenge. Further, it is easy to imagine reasons that owners may want to abandon physical property: old furniture takes up space, a boat requires upkeep, and there is perhaps peace to be found in purging clutter. (21) But copyrights take up no space and cost nothing to maintain, (22) so it seems counterintuitive that authors would ever give up rights in a work. That said, the fact remains that owners do express the desire to give up rights in their works with no pecuniary reward in mind, however much this may frustrate the predictions of rational choice economics. (23)

Copyright abandonment also presents a distinctive doctrinal tangle. Black letter law outlines the same basic test for relinquishing rights in a work as it does for chattels: intent to abandon, plus some overt act evidencing that intent. (24) While there were legal mechanisms for abandoning a copyright under prior regimes, the Copyright Act of 1976 jettisoned those formal requirements, leaving owners without any clear pathway to place their work in the public domain. (25) Courts have, however, continued to apply the common law abandonment doctrine under the post-1976 Act regime, albeit with conflicting results that fail to give authors clarity as to what acts are sufficient to inject their works into the public domain. (26)

As a result, the law frustrates otherwise aligned individual and social preferences. Many copyright owners would like to abandon their works, including some high-value ones. (27) Abandonment of such works would advance copyright's constitutional goals by enriching the public domain. (28) Yet copyright law itself remains a stumbling block because of the muddled doctrinal and administrative structure of abandonment. (29)

This Article seeks to resolve this tension between the revealed preferences of creators and the constitutional goals of copyright law, on the one hand, and the interpretation and application of the law, on the other. It explores the theoretical and doctrinal terrain of copyright abandonment in order to outline reforms that could help abandonment serve copyright law's constitutional aims. It does so in four Parts.

Part I briefly outlines the conceptual foundations of abandonment in the contexts of both physical property and copyright. In Part II, we turn to the welfare effects of abandonment, contrasting the cost-benefit dynamic in physical property--characterized by high private benefit but high social costs--to that of copyright--marked by low private benefit and high social benefit. Despite this reversal in the cost-benefit calculus, we demonstrate that rights holders nonetheless seek to abandon their works for a variety of reasons.

As Part III details, however, even for copyright holders who prefer to abandon their works, the legal framework for doing so remains unhelpfully opaque. This analysis is based on our exhaustive examination of two previously unappreciated datasets. First, we collected and reviewed notices of abandonment filed with the Copyright Office over the last forty years. Second, we evaluated nearly three hundred judicial decisions, dating back to the early nineteenth century, that analyzed copyright abandonment. Our analysis establishes a number of descriptive claims about copyright abandonment, primarily that neither statutory, administrative, nor judicial copyright law provides a particularly clear path for those seeking to abandon their works, or for those hoping to mine the public domain. Finally, we outline a number of potential reforms to facilitate and optimize abandonment in Part IV.

1. CONCEPTUALIZING ABANDONMENT

   Abandonment, as a legal concept, remains poorly understood. Although Strahilevitz and Pehalver made important inroads with respect to chattel abandonment, no similar work has investigated the fundamental nature of copyright abandonment. (30) We begin by first exploring how the doctrine works in the context of physical property. We then consider how the existing accounts of abandonment track onto copyright. In so doing, we offer a theory of abandonment that rejects the leading notion of abandonment as unilateral transfer (31) in favor of one that instead models abandonment as the owner's relinquishment of a legal relationship with their property.

   1. Abandoning Property

      The familiar constituent rights of property owners--use, exclusion, and transfer--do not include the right to abandon. Yet there is an intuitive sense that if an owner does not want to continue owning something, it would be strange for law to prevent her from doing so. (32) As J.E...