Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

2009

Abstract

The rule of law is currently under grave threat in cyberspace. Even as copyright laws have been strengthened in many ways in response to new digital technologies, these laws are widely disrespected and cannot be effectively enforced against all those who willfully flout them. The legislative response has been to strengthen copyright laws more and more, including expanding copyrightable subject matter, giving copyright owners new rights, and lengthening the copyright term. One example is the Copyright Term Extension Act of 1998. This amendment to federal copyright law retroactively extended the duration of copyright protection by twenty years. The judicial response to challenges to these strengthened laws has often been to insist that the threat to the rule of law requires interpreting the law to give broad rights to copyright owners, while narrowly construing the rights of others who seek to use copyrighted works. Justice Ginsburg took this approach in her majority (7-2) opinion of the U.S. Supreme Court in Eldred v. Ashcroft, a constitutional challenge to the Copyright Term Extension Act. Yet these legislative and judicial responses have not succeeded in establishing a culture of respect for copyright law.

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