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 The policy of protecting authors from their own mistakes reached the point of reductio ad absurdum on March 1, 1989, the effective date of the Berne Convention Implementation Act (“BCIA”). In the name of bringing the United States into compliance with the Berne Convention’s “no formalities” mandate, Congress made compliance with formalities not only nonessential, but irrelevant. The language of the key statutory provision on notice of copyright was changed from the mandatory “shall” to the permissive “may,” and the provision allowing authors to cure defective formalities was amended to have purely retrospective application. Thus, although defects in formalities for works published before March 1, 1989 can still result in forfeiture of copyright if not cured, later-published works are at no risk of forfeiting copyright protection due to noncompliance with statutory formalities. The conditional protections given to authors under the Copyright Act of 1976 against unintentional, inadvertent losses of their rights had become absolute.

As a result, there is a colorable argument that copyright legislation in the United States has gradually converted copyright from a selectable privilege to an indefeasible entitlement. That argument, and the presumption of strong rights for authors upon which it rests, may influence courts’ willingness to entertain arguments that an open-content licensor should be disempowered to terminate her grant of rights under a license and recapture ownership of copyright in the work. To complete the picture, however, it