united-states copyright ex-post-facto
How was retroactive copyright extension ever approved of?
<p>In the US, copyright has been retroactively extended multiple times. <a href="https://en.wikipedia.org/wiki/Steamboat_Willie#Copyright_status" rel="nofollow noreferrer">Steamboat Willie for example has repeatedly been snatched away from the public domain in the last minute</a>.</p>
<p>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.</p>
<p>But at the same time, <a href="https://en.wikipedia.org/wiki/Ex_post_facto_law" rel="nofollow noreferrer">ex post facto laws are expressly forbidden by the United States Constitution</a>.</p>
<p>So how is it possible that ex post facto copyright extensions have been passed multiple times?</p>
<p>As I see it the victim here is the general public. Is it simply that they haven't sued for rights? Or did they?</p>
<p>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 &quot;no, now it's three months&quot; whenever I feel like it? AFAICT that's exactly what's been happening here.</p>

<p>See <em><a href="https://supreme.justia.com/cases/federal/us/565/302/" rel="nofollow noreferrer">Golan v. Holder</a></em> (2012). This related to an extension of copyright protection for works that had already fallen into the public domain.</p>
<ul>
<li>an extension of copyright is still a &quot;limited time&quot; allowed by the Constitution</li>
<li>historical practice, including by the first congress, is evidence that giving copyright protection to previously unprotected works is okay</li>
<li>there is a rational basis that such extensions promote the progress of science</li>
<li>fair use continues to be available as a defence/exception</li>
</ul>
<p>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 <em><a href="https://supreme.justia.com/cases/federal/us/537/186/" rel="nofollow noreferrer">Eldred v. Ashcroft</a></em> (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).</p>
