EFF's organizing a letter to the California Senate in opposition to this.
I'm not sure what the mechanism is for WMF to act on this, but if it is
interested in reading it/signing, it should send a note to Ernesto Falcon
at EFF (ernesto(a)eff.org). Several orgs are signing on, including:
Association of Research Libraries
Creative Commons
Association of College and Research Libraries
Sunlight Foundation
American Library Association
Niskanen Center
Californians Aware
Creative Commons USA
Northern California Association of Law Libraries
Data Coalition
Open Media and Information Companies Initiative
Student Press Law Center
Public Knowledge
Fight for the Future
timothy
On Fri, Jun 3, 2016 at 11:03 PM, John P. Sadowski <johnpsadowski(a)gmail.com>
wrote:
Hi all,
This bill passed the California Assembly (one of the two houses of the
California State Legislature) yesterday, but it was amended to include the
following language [1]:
*13988.3 (b) (1) When a state entity creates a work that is otherwise
subject to copyright protection, the work shall be released into the public
domain unless the state entity reasonably determines any of the following:*
*(A) The work has commercial value, and the release would jeopardize the
integrity of the work.*
*(B) The release would infringe upon the property interests of a third
party.*
*(C) The release would detrimentally affect the state’s interests in its
trademarks, service marks, patents, or trade secrets.*
*(2) If a state entity reasonably determines that a work meets the
criteria described in paragraph (1), the entity shall catalog those works
and submit the information to the department for the purpose of tracking
intellectual property generated by state employees or with state funding as
provided in Section 13998.2.*
…
*(e) Nothing in this section requires a state entity to own, license, or
formally register intellectual property that it creates or otherwise
acquires.*
*(f) This section shall not apply to the use of expressive works created
by nonstate employees or without state funding.*
*…*
*(c) A public agency that releases a public record that is subject to
copyright protection pursuant to paragraph (1) of subdivision (b) of
Section 13988.3 shall issue the requesting party a license to use the
record in a manner that is consistent with the rights provided under this
chapter and that is considered an act of fair use under the federal
Copyright Act. The license may restrict the holder from using the record
for a commercial use only if such use would result in economic harm to the
public agency or to the public’s interest.*
Are we happy with this? I suppose that letter I was writing may be moot
now…
John
[1]
https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=20…
*From:* Publicpolicy [mailto:publicpolicy-bounces@lists.wikimedia.org] *On
Behalf Of *Timothy Vollmer
*Sent:* Thursday, May 19, 2016 1:05 PM
*To:* Publicpolicy Group for Wikimedia
*Subject:* Re: [Publicpolicy] US/California AB 2880 vs PD-California?
FYI--
CC wrote a post about it -
https://blog.creativecommons.org/2016/05/19/california-bill/
Also, EFF has an action page up now where California residents can send a
message to state reps.
https://action.eff.org/o/9042/p/dia/action/public/?action_KEY=10331
tvol
On Wed, May 18, 2016 at 1:26 AM, Mathias Schindler <
mathias.schindler(a)gmail.com> wrote:
Hi,
I think it is worth repeating that fixing this issue can happen on a
federal level via
https://law.resource.org/pub/edicts.html. It should
be within the scope of the mission of WMF and its affiliates to
suggest and support such a legislative move.
Mathias
On Wed, May 18, 2016 at 5:32 AM, John Sadowski <johnpsadowski(a)gmail.com>
wrote:
The situation is a bit odd. IANAL, but my
understanding is that the
California Public Records Act doesn't explicitly put state government
works
in the public domain, but there was a court case
in 2009 that interpreted
its language as omitting any provision that would allow the state to
claim
copyright [1]. The people on Commons find this
sufficient to consider
these
works as public domain [2], but the state claims
that the courts are
misinterpreting the law. That's why they're calling this a
"clarification",
because they claim that the law never put
anything in the public domain
in
the first place [3]. From the experience of
another editor I've
interacted
with on Wikipedia, the state government is still
requiring permissions to
use state works even now [4]. Given this, there seems to be uncertainty
about the older works would still be considered public domain, and thus
whether we could continue to use them should this bill pass.
John P. Sadowski
[1]
https://en.wikipedia.org/wiki/County_of_Santa_Clara_v._California_First_Ame…
http://leginfo.ca.gov/pub/15-16/bill/asm/ab_2851-2900/ab_2880_cfa_20160416_…
"Although it has always been the intent of
the Legislature to ensure that
California agencies can own, hold, and acquire intellectual property,
this
bill clarifies existing law by explicitly
providing that a California
public
entity may own, license, and if deemed
appropriate, register intellectual
property."
[4] Last paragraph of
https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22&diff=710…
and last paragraph of
https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22&diff=711…
...ignore the bit about the maps :-)
On Tue, May 17, 2016 at 2:37 PM, Ryan Kaldari <rkaldari(a)wikimedia.org>
wrote:
>
> If we can find out when this is coming up for a vote, it would be
possible
> to use Geonotice
(
https://en.wikipedia.org/wiki/Wikipedia:Geonotice) to
> alert editors in California to call their legislators. It would be good
to
> go ahead and start working on a Wiki page to
direct interested people
to.
>
> On Tue, May 17, 2016 at 10:27 AM, Jacob Rogers <jrogers(a)wikimedia.org>
> wrote:
>>
>> For what it's worth, typically laws are interpreted against being
>> retroactive. What that means is that unless a law specifically says
that
it
>> applies retroactively (and doing that can
make a law run afoul of
>> constitutional rules sometimes) it usually doesn't. So this is really
>> worrisome, but mostly going forward rather than to existing documents.
>>
>> Also, for the legislature, I'm not following them closely, but the
>> California State Assembly Calendar has a deadline listed in June for
them
to
>> vote on bill introduced in that house
before the summer recess, then
another
>> deadline in August before the fall
recess.
>>
>> On Mon, May 16, 2016 at 9:41 PM, Mike Linksvayer <ml(a)gondwanaland.com>
>> wrote:
>>>
>>> On 05/15/2016 08:07 PM, John P. Sadowski wrote:
>>> > That is quite troubling, given that the committee approvals were
>>> > near-unanimous. Is it possible that the bill could be interpreted
>>> > to apply retroactively, meaning we'd have to remove those 1048
items?
>>>
>>> I don't see anything retroactive in the text, but I also don't see
>>> anything that would strictly prohibit state agencies and local
>>> governments from treating previous publications as subject to
copyright.
>>>
>>> I see that User:Gazebo has posted at
>>>
>>>
https://commons.wikimedia.org/wiki/Commons:Village_pump/Copyright#Proposed_…
>>> to no discussion yet.
>>>
>>> > Any idea when the bill comes up with a vote? Wikimedia DC could
>>> > possibly draft and send a letter giving Wikimedia-specific examples,
>>> > or we could work with the Foundation legal team to do so.
>>>
>>> I don't know when it can be expected to come up for a vote. I should
>>> know more about California lawmaking than I do, which is almost
nothing.
>>> I've copied wikimedia-sf; maybe
some local California government maven
>>> lurks there and could say.
>>>
>>> Mike
>>>
>>>
>>> >> On May 15, 2016, at 9:47 PM, Mike Linksvayer
<ml(a)gondwanaland.com>
>>> >> wrote:
>>> >>
>>> >>
https://www.eff.org/deeplinks/2016/04/ab-2880
"California's
>>> >> Legislature
>>> >> Wants to Copyright All Government Works"
>>> >>
>>> >> More background at
>>> >>
>>> >>
https://www.techdirt.com/articles/20160417/09213934197/california-assembly-…
is
>>> >> one
>>> >> of the three most "open" regarding government works.
Presumably it
>>> >> won't
>>> >> be anymore if AB 2880 becomes law.
>>> >>
>>> >> California is one of only two U.S. states with a category under
>>> >>
>>> >>
https://commons.wikimedia.org/wiki/Category:Public_domain_by_government
>>> >> --
https://commons.wikimedia.org/wiki/Category:PD_California (1048
>>> >> items).
>>> >>
>>> >> I haven't investigated whether and how many of those items would
be
>>> >> subject to copyright had AB 2880 been California law at the times
of
>>> >> their publication.
>>> >>
>>> >> Skimming the bill's changes to present law at
>>> >>
>>> >>
https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=20…
>>> >> it seems the one or two
maybe dangerous additions are these:
>>> >>
>>> >>> A public entity may own, license, and, if it deems it
appropriate,
>>> >>> formally register intellectual property it creates or otherwise
>>> >>> acquires.
>>> >>
>>> >> The assembly's analysis views this as a clarification, but it
could
>>> >> open
>>> >> the door to widespread use (or copyright apologists would say,
abuse)
>>> >> of
>>> >> copyright by local government, as the EFF says, "to chill
speech,
>>> >> stifle
>>> >> open government, and harm the public domain."
>>> >>
>>> >>> (A) A state agency shall not enter into a contract under this
>>> >>> article that waives the state’s intellectual property rights
unless
>>> >>> the state agency, prior
to execution of the contract, obtains the
>>> >>> consent of the department to the waiver.
>>> >>>
>>> >>> (B) An attempted waiver of the state’s intellectual property
rights
>>> >>> by a state agency that
violates subparagraph (A) shall be deemed
>>> >>> void as against public policy.
>>> >>
>>> >> It is not clear to me whether this addition might serve as a
barrier
>>> >> to
>>> >> agencies deciding to publish material under open licenses. In the
>>> >> meantime, I assume it will foster such barriers in practice.
>>> >>
>>> >>
https://twitter.com/mitchstoltz/status/731282363674562560 says
>>> >> "[EFF]'ll
>>> >> probably issue an action alert, but meantime, call your state
>>> >> assembly
>>> >> member's office & ask them to oppose."
>>> >>
>>> >> If this is indeed a threat, I wonder if there's anything
Wikimedians
>>> >> can
>>> >> do to oppose it, in addition to those of us in California calling
our
>>> >> state assembly members?
>>> >>
>>> >> Mike
>>> >>
>>> >> _______________________________________________
>>> >> Publicpolicy mailing list
>>> >> Publicpolicy(a)lists.wikimedia.org
>>> >>
https://lists.wikimedia.org/mailman/listinfo/publicpolicy
>>> >
>>> > _______________________________________________
>>> > Publicpolicy mailing list
>>> > Publicpolicy(a)lists.wikimedia.org
>>> >
https://lists.wikimedia.org/mailman/listinfo/publicpolicy
>>> >
>>>
>>>
>>> _______________________________________________
>>> Publicpolicy mailing list
>>> Publicpolicy(a)lists.wikimedia.org
>>>
https://lists.wikimedia.org/mailman/listinfo/publicpolicy
>>
>>
>>
>>
>> --
>>
>> Jacob Rogers
>> Legal Counsel
>> Wikimedia Foundation
>>
>> NOTICE: This message might have confidential or legally privileged
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please
>> delete it and let us know about the
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