Copyright (c) 2012 All rights reserved. http://works.bepress.com/bradley_abruzzi Recent documents in Bradley E Abruzzi en-us Fri, 23 Nov 2012 05:49:31 PST 3600 http://works.bepress.com/bradley_abruzzi/2 http://works.bepress.com/bradley_abruzzi/2 Sat, 05 Mar 2011 19:16:11 PST The Constitution’s void-for-vagueness doctrine is itself vaguely stated. The law does little to describe at what point vague laws — other than those that are entirely standardless — might be unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three “collateral factors” that affect its inclination to invalidate a law for vagueness, including (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Against this backdrop, it is fair to say that copyright law, in its current configuration, does not meet the vagueness doctrine’s minimum requirements of fair notice to the public. Copyright by its terms restricts free speech; the law’s prolixity frustrates ex ante assessment of what speech is lawful. The question whether speech infringes copyright requires reference to a multiplicity of top-level interlocking questions or doctrines — each with its own manifold of subsidiary legal issues. Still more troubling is the uncertainty that inheres in “substantial similarity” and fair use, the very copyright doctrines that are generally held to rescue copyright from charges of First Amendment overbreadth. This Article argues that although a case can be made that copyright is unconstitutionally vague, invalidation of all or any portion of the Copyright Act is unlikely and not constructive. Reforms undertaken specifically to cure copyright’s indeterminacy are not likely to be effective, either. However, a consideration of the vagueness doctrine’s collateral factors and how they apply to copyright suggests an appropriate reform of the law. For cases involving expressive use of copyrighted content, lawmakers should adopt a three-tiered system of civil infringement liability by which strict liability is preserved in cases brought for injunctive relief only, while suits for statutory and actual damages require proof of willful and negligent infringement, respectively.

]]> Bradley E. Abruzzi Communications Law Constitutional Law Intellectual Property Law http://works.bepress.com/bradley_abruzzi/1 http://works.bepress.com/bradley_abruzzi/1 Sat, 24 Jan 2009 12:29:00 PST Expression is simultaneously creative and referential. It is copyright’s task both to supply ownership incentives sufficient to promote the creation of expressive works, and to carve out creative (and for that matter, expressive) space from those rights for subsequent creators. Fair use and uses of copyrighted content that the Copyright Act has traditionally privileged are therefore themselves critical to expression. Purveyors of expressive content on the World Wide Web would challenge copyright’s careful balance by conditioning access to content on the user’s acceptance of nonnegotiable, contractually binding terms of use (“TOU”). Website TOU commonly impose “personal use-only” restrictions on users that prohibit uses copyright law would permit. If enforced against critical and scholarly uses of web content, these TOU could undermine the great democratizing potential of the come-one/come-all Internet. Trends in the case law suggest that express and conflict preemption and unconscionability defenses will likely be unavailing to authors who engage in prohibited uses of TOU-restricted web content — even if these uses would be “fair” under the Copyright Act. Although individual parties should be free to negotiate away copyright-approved uses in their dealings with content owners, courts should not be constrained in finding TOU unconscionable or preempted by copyright, when circumstances suggest the content purveyor means to augment its rights unilaterally through nonnegotiable bulk “contracting.” Indeed, when a copyright-approved use of content subject to TOU is expressive in nature, courts should consider a possible constitutional defense to enforcement of the TOU.

]]> Bradley E. Abruzzi Communications Law Computer Law Constitutional Law Contracts Intellectual Property Law Law and Technology