Copyright and the Vagueness Doctrine

The Constitution’s void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become 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: (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. Measured against these factors, copyright law does not meet the vagueness doctrine’s minimum requirement of fair notice to the public. Copyright, by its terms, restricts free speech, and the law’s prolixity frustrates ex ante assessment of what speech is lawful. In addition, substantial similarity and fair use, the very provisions of copyright law that are generally held to rescue it from overbreadth, themselves admit considerable uncertainty into the infringement analysis. That substantial, extracompensatory damages are available against infringers, regardless of their state of mind, renders the copyright laws still more problematic under the vagueness doctrine. This Article argues that although a case can be made that the copyright laws are 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.