Page:Shrinking the Commons.djvu/15

 product, requiring it to be licensed under the GPL as well if it is distributed to others.

Yet just as the law celebrates “those wise restraints that make us free,” the GPL enhances far more freedom than it limits. The copyleft condition feeds the commons. It ensures that FOSS works remain free even as they evolve and protects earlier programmers against later programmers’ proprietary appropriation of their work. Because the copyleft condition applies only to software derived from GPL-licensed code, it is sometimes labeled a “reciprocity” provision. In other words, the cost of reusing GPL-licensed code in one’s own work is that one must either offer that work to all under the GPL, or offer it to no one.

Although the GPL also includes what is labeled a “termination” provision, it is important not to confuse this clause with the issue under consideration herein. The GPL provides, in essence, that if a licensee fails to honor the conditions stated in the license (and fails thereafter to cure her default), that licensee may not thereafter rely on the GPL as a defense to the original licensor’s claim of copyright infringement. In the language of the license, the rights of a defaulting user are said to “terminate.” Stated differently, a user may, by her conduct, forfeit the rights the GPL grants. This is a different issue from the question that this Article considers, namely, whether the Copyright Act permits unilateral termination of open content licenses by the author (or the author’s heirs) irrespective of any breach by the licensee.

Unless the licensee forfeits her rights by breaching a condition of the GPL, however, the license is expressly declared to be perpetual: “All rights granted under this License are granted for the term of copyright on the