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@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_Amendment_Coalition
> [2] https://commons.wikimedia.org/wiki/Template:PD-CAGov
> [3]
> http://leginfo.ca.gov/pub/15-16/bill/asm/ab_2851-2900/ab_2880_cfa_20160416_133937_asm_comm.html
> "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=710660699&oldid=709645905
> and last paragraph of
> https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22&diff=711100671&oldid=710966305
> ...ignore the bit about the maps :-)
>
> On Tue, May 17, 2016 at 2:37 PM, Ryan Kaldari <rkaldari@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@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@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_law_in_California_to_extend_copyright_to_CA_state_and_local_government_works
>>>> 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@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-looks-to-push-cities-to-copyright-trademark-everything-they-can.shtml
>>>> >>
>>>> >> According to http://copyright.lib.harvard.edu/states/ California 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=201520160AB2880
>>>> >> 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
>>>> >>
>>>> >> _______________________________________________
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>>>>
>>>>
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>>>
>>>
>>>
>>> --
>>>
>>> Jacob Rogers
>>> Legal Counsel
>>> Wikimedia Foundation
>>>
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