55 Fla. L. Rev. 779 (2003)
Prolegomenon to a Memetic Theory of Copyright: Comments on Lawrence Lessig's the Creative Commons

handle is hein.journals/uflr55 and id is 813 raw text is: PROLEGOMENON TO A MEMETIC THEORY OF COPYRIGHT:
Thomas F. Cotter'
I would like to thank the Florida Law Review for inviting me to
respond to Professor Lawrence Lessig's Dunwody Lecture, The Creative
Commons.' As the following discussion will show, there is little if anything
in Lessig's analysis with which I disagree.2 I nevertheless thought it might
* Professor of Law and Director of the Intellectual Property Program, University of Florida
Fredric G. Levin College of Law. I thank Lyrissa Lidsky and Bill Page for their thoughtful
comments. Any errors that remain are mine.
1. 55 FLA. L. REV. 763 (2003).
2. Well, maybe one thing. For most of our history, Congress required authors to comply with
a variety of formalities as a condition to the existence or enforcement of federal copyright rights.
These have included, at various times, deposit and registration requirements; a requirement that
copyright owners take affirmative steps to renew their copyrights; a rule that publication of copies
without copyright notice resulted in the forfeiture of federal copyright; and a requirement that
copies of certain works be manufactured in the United States or Canada. See generally 2 MELVILLE
W. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT ch. 7 (2002) (discussing formalities other
than renewal); 3 NIMMER & NIMMER, supra, §§ 9.02-.07 (discussing renewal); I WILLIAM F.
PATRY, COPYRIGHT LAW AND PRACTICE ch. 5 (1994) (discussing formalities). Over the years,
Congress has prospectively abolished most but not all of these formalities. See 17 U.S.C.
§ 304(a)(3)(B) (2003) (since 1992, making copyright renewal automatic, for works for which
renewal otherwise would have been required); id. §§ 401-405 (effectively making copyright notice
optional with respect to works published on or after March 1, 1989); id. § 407(a) (requiring deposit
of works published in the United States, but stating that compliance is not a condition of copyright
protection); id. § 408(a) (making registration optional); id. § 601(a) (requiring U.S. or Canadian
manufacture only for certain works published on or before July 1, 1986). But see id. § 304(a)(4)
(providing incentives to register a claim to copyright renewal); id. §§ 401(d), 402(d) (providing
incentives to use copyright notice); id. § 407(d) (providing monetary penalties for failure to
deposit); id. §§ 410(c), 412 (providing incentives to register); id. § 411 (a) (requiring registration
of United States works, as defined in § 101 of the Copyright Act, as a precondition to filing a civil
action for infringement). In his lecture, Lessig appears to advocate reintroducing deposit and
registration requirements. See Lessig, supra note 1, at 767-68. He makes this point more explicitly
in his recent book, in which he also advocates reintroducing copyright renewal. See LAWRENCE
[hereinafter LESSIG, FUTURE OF IDEAS] (proposing that copyright owners should be entitled to, at
most, fifteen renewable five-year terms); see also WILLIAM M. LANDES & RICHARD A. POSNER,
INDEFINITELY RENEWABLE COPYRIGHT (U. Chi. L. Sch. John M. Olin L. & Econ., Working Paper
No. 154 (2d Ser.) 2002), available at http://ssm.com/abstractid=319321 (discussing the merits of
either an indefinitely renewable copyright, or a copyright that could be renewed periodically for up
to 100 years). Lessig does not advocate resuscitating copyright notice requirements or the blatantly
protectionist manufacturing requirement. See Lessig, supra note 1, at 774-75.
For now, I remain skeptical of the notion that the reintroduction of copyright formalities would
be a worthwhile endeavor. For one thing, reintroducing mandatory formalities into U.S. law might

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