Thanks, Tim! I'll reach out to Ernesto about the letter.
On Sat, Jun 4, 2016 at 9:45 AM, Timothy Vollmer <tvol(a)creativecommons.org>
wrote:
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…
> > [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_…
> > "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-…
> >>>> >>
> >>>> >> 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=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
> >>>
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> >>> information in it. If you have received this message by accident,
> please
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> advice
> >>> to, or serve as a lawyer for, community members, volunteers, or staff
> >>> members in their personal capacity. For more on what this means,
> please see
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> >>>
> >>>
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> >>>
> >>
> >>
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> >>
> >
> >
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>
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