Forever Minus a Day

One of the innovations of my ill-fated (to jump the gun a bit on the postmortem) media empire crowd-funding experiment was to offer, in what is known in the parlance as a "stretch goal", to render some or all of the production of the songs of days into the public domain, utilizing the Creative Commons tool that exists (I was surprised to discover, having never heard of it before) for this purpose.

And you know, I know, I know, it's perhaps questionable largesse to offer to set free what nobody is really buying.  Even so, if you'll forgive my hubris I think you all missed the boat on that one.

So now instead I have rolled my own Royalty-Free License deal which is also a steal because, like, the information wants to be free, man.  But not too free. Give me five dollars dammit.

Seriously though, both topics have put me in mind of something I've been thinking about for a while,  namely how well these license strategies are going to hold up to the test of time.  My speculations on the subject began with open source software licenses, and certainly there's already been a certain amount of wrangling in that vicinity and I guess the principle of the license held up...

Here's the scenario I wonder about, and it applies just as much to things like Creative Commons licenses or for that matter the probably somewhat legally inept license terms I cooked up for my lyric offerings.  Someone offers their work on a creative commons license.  They die and the copyright that gives that license its legal authority passes to their estate without any guiding instructions.  Their estate says hey I never signed off on these deals,  the person who did doesn't have the authority to define the terms of my ownership of these copyrights, it's all void - and starts suing everyone who is making their putative property available under the Creative Commons.

Really I don't know anything about the law so maybe wiser minds could call this out as legal nonsense, though like as if that's ever stopped anyone from suing before.

I believe in the principle of the commons but when I start to go deep into it even I get confused... What about when the original copyright term expires? If nobody renews it what then? There doesn't seem to be much clear guidance on what an orphaned copyright really signifies.  The assertion that a license like Creative Commons should apply to a work until it enters the public domain gives me pause.  People (generally seen as the "bad guys" in the ongoing copyright) representing generally Big Media have advocated perpetual copyright - no public domain, essentially. Sometimes invoking the legal absurdism of copyright lasting "forever minus a day", an attempt to end-run around the clear Constitutional mandate for limited copyright by defining its term as something with a theoretical endpoint which in practical application never comes (of course many people feel that for all practical purposes this situation is already in effect as Big Media shifts the goal posts with a massively lobbied push to have Congress extend copyright terms every time Mickey Mouse's entry into the public domain looms).

To me though asserting that an external licensing scheme the original creator of a work imposes carries legal authority for as long as a a work is covered by copyright (regardless of who owns it) bears some uncomfortable resemblance to that "forever minus a day" mentality.  Obviously it is in service of a better cause but that justification is always dangerous.

There is a better way of course which is to give copyright the reworking it desperately needs for the information age.  I would advocate this include tightening up copyright terms to bring them back in line with the Constitution's original guidance.  I think a formal process for entering a work into the public domain and for that matter codifying the principles of Creative Commons licensing into law and dealing with these questions explicitly would be highly worthwhile and a boon to society (changes I'd naturally hope would extend into other countries and international law).

I won't be holding my breath.

For myself I'll state for the record that my intent would be for any extension of my individual rights I make on the things I create - whether private licenses I sell or if I use public tools like the Creative Commons - extend until these properties enter the public domain - and I hope whoever ends up owning them respects that intent.  If I end up having the time, the wherewithal and the means, I will establish a trust in my estate to administer those rights.  Or maybe modern society will collapse under the burden of global warming and the idiocy of late-model capitalism and hey, moot point.