Ex Post Facto US Constitutional Rights VS US Copyright Extensions

[Greg Anos]

I have been thinking...about American Constitutional Law. And copyright changes over the years (i.e. since 1976). I was wondering of any of the lawyers in the house might unofficially weigh in on the following concept...

On of the bedrock pieces of our jurisprudence is the concept of no ex post facto law. For the non-latin speakers, that means in the US you can't make a law that applies retroactively. In other words, you can't put someone in jail for doing something that was legal when he/she did it, but the law was changed to make that act illegal later and backdated to make your act criminal, even though it was legal at the time.

I started wondering, are extension of the copyright law effective an ex post facto law change? Not for current works, but the retroactive application to previous work created under older copyright law?

RSE

[pshrynk]

Originally Posted by Ralph Sir Edward

I have been thinking...about American Constitutional Law. And copyright changes over the years (i.e. since 1976). I was wondering of any of the lawyers in the house might unofficially weigh in on the following concept...

On of the bedrock pieces of our jurisprudence is the concept of no ex post facto law. For the non-latin speakers, that means in the US you can't make a law that applies retroactively. In other words, you can't put someone in jail for doing something that was legal when he/she did it, but the law was changed to make that act illegal later and backdated to make your act criminal, even though it was legal at the time.

I started wondering, are extension of the copyright law effective an ex post facto law change? Not for current works, but the retroactive application to previous work created under older copyright law?

RSE

Not a lawyer, but...

[zelda_pinwheel]

i am pretty sure that once a work falls into the pd, it stays there, however if it is still under copyright and the law is changed, the copyright is extended (otherwise, disney wouldn't keep lobbying for longer copyright terms). this latter case would seem like a case of ex post facto to me (shouldn't the copyright in effect at the time of publication apply ??) but like pshrynk i'm not a lawyer... that's also why there are some works which are in the pd in the US but nowhere else, particularly the ones published before 1924 (? 1923 ? whatever year it was), or the ones whose copyright was not renewed, at a time when it was necessary to do so (no longer the case).

[Patricia]

Originally Posted by Ralph Sir Edward

IOn of the bedrock pieces of our jurisprudence is the concept of no ex post facto law. For the non-latin speakers, that means in the US you can't make a law that applies retroactively. In other words, you can't put someone in jail for doing something that was legal when he/she did it, but the law was changed to make that act illegal later and backdated to make your act criminal, even though it was legal at the time.

I'm no lawyer either. But it seems to me that in the case of copyright extensions there is no time when the highlighted phrase above actually applies. If the work is in copyright then it is illegal to copy it. If the copyright is extended then it is still illegal. There's no point where a previously legal copy becomes illegal.

It is noticeable that when Austalia moved from a life+50 years to a life+70 years copyright law, all works that had been PD all stayed PD, so as to avoid retrospective legislation.

[nekokami]

I think there's something fishy about extending the copyright date of stuff that was created before the change, but it's probably not covered by the "no expostfacto" rule, because as several people have mentioned, the works that are affected get extended before their copyrights actually expire, or fall into the public domain and stay there.

But I'm not a lawyer and have no intention of trying to become one or pretend to be one or even play one on TV.

[Nate the great]

This was argued before the US Supreme Court as a result of the last copyright extension. The USSC said it's not ex post facto.

I can't find a copy of the decision, but I do know one of the lawyer's involved was Lawrence Lessig.

[zelda_pinwheel]

Originally Posted by Nate the great

This was argued before the US Supreme Court as a result of the last copyright extension. The USSC said it's not ex post facto.

I can't find a copy of the decision, but I do know one of the lawyer's involved was Lawrence Lessig.

really. very interesting. i can't imagine what logic they could have used to argue that (sincerely), i'd be interested to hear (a summary...) if you find any more info.

[pdurrant]

When the UK moved for +50 to +70 on 1st January 1996, some works that had come out of copyright went right back into copyright. This included, for example, all of Kipling's works, which first came out of copyright on 1st January 1987, were in the public domain (in the UK) for nine years, and then went back into copyright on 1st January 1996 until they once again became public domain on 1st January 2007.

The justification was that the law was to harmonise with Europe, so works that were still in copyright anywhere in Europe came under copyright again in the UK for the new term.

Originally Posted by Patricia

It is noticeable that when Austalia moved from a life+50 years to a life+70 years copyright law, all works that had been PD all stayed PD, so as to avoid retrospective legislation.

[Greg Anos]

I've spent some time researching this issue on Google. The most recent legal overview (written in 2002, by I.P. lawyers) I was able to find stated that the ex post facto constitutional law is a concern, but as of that time, there had been no litigation on the matter. Their concern was for taking items back into the public domain, not the extension of copyright. I guess that implies that there is a door open for litigation, should somebody with the means (and the will) choose to pursue it. I know that the most recent Supreme Court ruling on copyright length was over whether the Congress had exceed the "limited time" definition of copyright in the Constitution. It didn't, according to the Supreme Court.

[Greg Anos]

I don't have time to read it in it's entirety (currently) but the Decision Nate The great is talking about is http://www.copyright.gov/docs/eldrdedo.pdf

Must go, I'm late, I'm late, for a very important date....

[Nate the great]

I must have remembered it wrong.

[mjh215]

Originally Posted by zelda_pinwheel

really. very interesting. i can't imagine what logic they could have used to argue that (sincerely), i'd be interested to hear (a summary...) if you find any more info.

The logic involved how many 0's were involved in the bribe amounts...

-MJ

[Greg Anos]

Originally Posted by mjh215

The logic involved how many 0's were involved in the bribe amounts...

-MJ

America has the best government money can buy....