Ex post facto (Was: U.K. Copyright Duration)

On Mon, 25 Jan 1999, Earl Horsefield <ehorsefield[_at_]usgs.gov> wrote:
>
> I am not a lawyer, but have a question about the legal aspects of what
> is said here... in the United States, it is my understanding that no
> law can be ex post facto, which I think is latin meaning after the
> fact...so if something goes into the public domain, it cannot be put
> back out of the public domain in the U.S. - you lawyers and law profs
> out there - is this true or not? If it suddenly RESTORES rights is that
> not ex post facto and thus has no validity in the law?

My understanding is that the ex post facto prohibition (in Article I, s. 9 of the Constitution) applies only to criminal or punitive laws. There have been cases, for example, where income tax laws applicable to a particular year are made in the subsequent year, not only after the income in question was earned, but clearly after the time period on which accounting is based was made.

In any event, criminal/punitive distinctions aside, I don't think this would constitute an ex post facto facto law, because it doesn't affect past activities. That is, it imposes no liability for reproduction, etc. of the works prior to the enactment of the statute. What it does is change the status of the work so that future reproduction, etc. may impose liability.

-- 
Terry Carroll       | "Report of the Committee On Governmental Affairs,
Santa Clara, CA     | United States Senate, To Accompany S. 1364, An Act To
carroll[_at_]tjc.com     | Eliminate Unnecessary and Wasteful Federal Reports."
Modell delendus est |  - Title of U.S. Senate Report 105-187, May 11, 1998