Had the Stop Online Piracy Act passed, would it have had complications with Ex Post Facto clauses?
That is to say, per SOPA or any other legislation to come from Internet activity, would there not be a free pass for some, or all of the actions? Granted Copyright Law is already in place, but wouldn’t Ex Post Facto essentially be a Gotcha! at this point, to new laws?
At least, I think this is how it should work.
What am I missing here?
It’s not ex post facto, since the crime is still going on after the act goes into effect. If the site takes all the offending material down before the act is in effect, then they can’t be charged with violating it (which would be ex post facto).
It’s as if “no fishing – $50 fine” is declared on a certain stream. You can’t be charged if you fished before the law went into effect. You can be charge if you fish after it goes into effect. And if you start fishing before it goes into effect, and continue after it’s in effect, you can be charged.
But that’s not to say, that the laws already in effect, before the offense, would still be in effect. … But then, could the defense be “But we are Online” and therfore the wording in effect doesn’t affect us! ?
No. It’s like the people who had LSD before it was made illegal in California. They couldn’t argue “It was legal when we bought it” if charged with possession.
The only special case is that they broke the old law before the new law went into effect. They could be sued under the old law, of course, but not under the new one – if they took the offending material down before the law went into effect.
But the effects of the new law were not retroactive. Anyone charged under it would be charged for violating the copyright after the new law went into effect. The defense can’t say “the new law doesn’t apply because we broke the law earlier” if they continue to break the law after the new law (any indictment would specify the date where the material was found).
To put it more clearly: If you put certain content on-line and leave it there for a while, then having it there is an on-going activity. Suppose the new law says you will be fined $100 a day for it. You couldn’t be fined for the days it was there before the law (I should hope), but you could be fined for each day it’s there once the law takes effect.
Sometimes the law (or the interpretation by the DA or the court) holds that each day the content is there once the law takes effect is a new violation. Well, I don’t know of any internet content laws like that – but this is a common way that things like building code violations are enforced. If the city council passes a law that you can’t have orange curb-side mailboxes (or anything else that municipal codes may say) then you have to remove (or repaint) any orange curb-side mailboxes you have, or be fined (or at least threatened with fines) for each day the orange box remains.
Then there’s what is common practice in US law today, the OJ Defense - you may end up not guilty, but you’ll go bankrupt from legal fees getting there…
Unless I am mistaken, unless it is an emergency measure, Acts of Congress are not effective for 90 days. This is to insure that Due Process affords a potential law breaker the “notice” his actions are illegal.
What exactly are the acts that you think would not be covered? The offense is offering unauthorized material online. When the law goes into effect, unauthorized material online at that time will constitute an offense at that time. Where is the ex post facto problem?