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In the US, copyright has been retroactively extended multiple times. Steamboat Willie for example has repeatedly been snatched away from the public domain in the last minute.

It was first due to enter the public domain in 1955. Then in 1986. Then in 2003. Last extension (that I know of) was until 2023 which is the year I write this.

But at the same time, ex post facto laws are expressly forbidden by the United States Constitution.

So how is it possible that ex post facto copyright extensions have been passed multiple times?

As I see it the victim here is the general public. Is it simply that they haven't sued for rights? Or did they?

If I sign a contract that I will hand over my poem to you in two weeks, can I just change my mind and say "no, now it's three months" whenever I feel like it? AFAICT that's exactly what's been happening here.

Johan Walles
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See Golan v. Holder (2012). This related to an extension of copyright protection for works that had already fallen into the public domain.

  • an extension of copyright is still a "limited time" allowed by the Constitution
  • historical practice, including by the first congress, is evidence that giving copyright protection to previously unprotected works is okay
  • there is a rational basis that such extensions promote the progress of science
  • fair use continues to be available as a defence/exception

Further, no one is liable for copies of works made while a work was in the public domain. This was not imposing retroactive, ex post facto punishment. But see Justice Stevens's dissent in Eldred v. Ashcroft (2002) for such an argument—not in the punishment sense, but analogizing to a taking (the majority held that the Sonny Bono Copyright Term Extension Act was constitutional).

Jen
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