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Retroactive copyright licenses and co-owners

By Rebecca Tushnet

James K. Rothstein, Unilateral Settlements and Retroactive Transfers: A Problem of Copyright Co-Ownership, 157 University of Pennsylvania Law Review 881 (2009):

Excellent summary of the arguments and counterarguments. I still disagree with the conclusion that Davis v. Blige was rightly decided, largely because I think we have different prototypes of the average infringement case in which a retroactive license from a co-author is offered as a defense. Rothstein thinks my favored rule would encourage willful infringement; I don?t think people calculate the chances of finding a pliable co-author and factor that into infringement decisions. Davis v. Blige is a good example: Davis showed up claiming to be a previously unrecognized co-author. Most of the other retroactive licensing cases fit the pattern: infringement (often alleged infringement that could also be read as a strike suit, see Silberstein v. Fox Entertainment Group) that seems accidental at most. Deterrence just isn't that fine-grained. Anyway, Rothstein does a good job of presenting both sides fairly, convincing me the question is harder than I thought.

Full post as published by 43(B)log on May 04, 2009 (boomark / email).