Cracking the Code: How to Prevent Copyright Termination From Upending the Proprietary and Open Source Software Markets

Computer software is protected by copyright law through its underlying code, which courts have interpreted as constituting a “literary work” pursuant to the Copyright Act. Prior to including software as copyrightable subject matter, Congress established a termination right which grants original authors the ability to reclaim their copyright thirty-five years after they have transferred it. Termination was intended to benefit up-and-coming authors who faced an inherent disadvantage in the market when selling the rights to their works. In the near future, many software works will reach the thirty-five-year threshold, thus presenting courts with a novel application of termination to computer software. Software’s inclusion as copyrightable subject matter has long been seen as a poor fit when compared to other copyrightable works, such as music, movies, and art. This perceived difference will soon be exacerbated because termination poses unique threats as applied to software, primarily due to the functional aspects of software that are necessarily incidental to the protected code. Problems stemming from termination will manifest differently in the two primary software markets known as proprietary software and open source software. Independent contractors may be able to terminate copyrights held in software they had previously written for a business’s proprietary ownership, whereas, in the context of open source software, exercise of termination could make void perpetual licensing agreements that serve as the foundation for the open source movement. While statutory and common law exceptions to termination, such as the work made for hire doctrine, may mitigate the effects of termination, the degree to which the doctrines may do so has yet to be determined. This Note argues that the harmful effects of termination as applied to proprietary software can be resolved through a novel interpretation of the work made for hire provision of the Copyright Act. Additionally, the harmful effects of termination on open source software can be avoided if Congress adopts a legislative amendment creating a compulsory licensing system for open source works

Work Made For Hire -- Analyzing the Multifactor Balancing Test

Authorship of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer, not the employee, being the author and initial copyright owner. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, set forth a list of factors to distinguish employees from independent contractors. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. Three years later, in 1992, the Court of Appeals for the Second Circuit decided Aymes v. Bonelli and noted that not all factors are equally weighted and that five of the factors would “be significant in virtually every situation.: This analysis was supported by looking at all the work made for hire cases decided in the three year period since Reid—six cases in total. This Article expands in both scope and time what the Second Circuit did in Aymes and systematically analyzes how courts have utilized the factors in the twenty-five years since Reid. In particular, this study has identified the universe of cases where the courts have decided whether a hired party was an employee or independent contractor and uses the data from these cases to describe what factors appear to be the most and least important in reaching these conclusions. Based on the results of this study, this Article proposes a continuum of importance, which graphically illustrates the relative importance of each factor

Who\u27s the Author? A Bright-Line Rule for Specially Commissioned Works Made for Hire

This comment argues that the best way to clarify the answer to the question Who\u27s the author? (and thus to clarify whether the creator has a termination right) is to resolve the circuit split in favor of a bright-line rule requiring execution of the written agreement prior to the creation of the work. Part I introduces the legal framework under which the issue must be analyzed. Part II reviews the holdings on each side of the circuit split. Part III presents the arguments that both proper statutory construction of U.S. copyright law and the legislative history of the termination right, which is closely related to the work made for hire provision, support the contention that the statute should be read to impose the bright-line rule. Part IV concludes

Generating Rembrandt: Artificial Intelligence, Copyright, and Accountability in the 3A Era--The Human-like Authors are Already Here- A New Model

Artificial intelligence (AI) systems are creative, unpredictable, independent, autonomous, rational, evolving, capable of data collection, communicative, efficient, accurate, and have free choice among alternatives. Similar to humans, AI systems can autonomously create and generate creative works. The use of AI systems in the production of works, either for personal or manufacturing purposes, has become common in the 3A era of automated, autonomous, and advanced technology. Despite this progress, there is a deep and common concern in modern society that AI technology will become uncontrollable. There is therefore a call for social and legal tools for controlling AI systems’ functions and outcomes. This Article addresses the questions of the copyrightability of artworks generated by AI systems: ownership and accountability. The Article debates who should enjoy the benefits of copyright protection and who should be responsible for the infringement of rights and damages caused by AI systems that independently produce creative works. Subsequently, this Article presents the AI Multi- Player paradigm, arguing against the imposition of these rights and responsibilities on the AI systems themselves or on the different stakeholders, mainly the programmers who develop such systems. Most importantly, this Article proposes the adoption of a new model of accountability for works generated by AI systems: the AI Work Made for Hire (WMFH) model, which views the AI system as a creative employee or independent contractor of the user. Under this proposed model, ownership, control, and responsibility would be imposed on the humans or legal entities that use AI systems and enjoy its benefits. This model accurately reflects the human-like features of AI systems; it is justified by the theories behind copyright protection; and it serves as a practical solution to assuage the fears behind AI systems. In addition, this model unveils the powers behind the operation of AI systems; hence, it efficiently imposes accountability on clearly identifiable persons or legal entities. Since AI systems are copyrightable algorithms, this Article reflects on the accountability for AI systems in other legal regimes, such as tort or criminal law and in various industries using these systems