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?

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.

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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 <http://assembly.ca.gov/legislativedeadlines> 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 &lt;ml(a)gondwanaland.com&gt; wrote: -- Jacob Rogers Legal Counsel Wikimedia Foundation NOTICE: This message might have confidential or legally privileged information in it. If you have received this message by accident, please delete it and let us know about the mistake. As an attorney for the Wikimedia Foundation, for legal/ethical reasons I cannot give legal 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 our legal disclaimer <https://meta.wikimedia.org/wiki/Wikimedia_Legal_Disclaimer>. _______________________________________________ Publicpolicy mailing list Publicpolicy(a)lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy

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 &lt;rkaldari(a)wikimedia.org&gt; wrote: _______________________________________________ Publicpolicy mailing list Publicpolicy(a)lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy

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 <https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22&diff=710660699&oldid=709645905> &diff=710660699&oldid=709645905 and last paragraph of https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22 <https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22&diff=711100671&oldid=710966305> &diff=711100671&oldid=710966305 ...ignore the bit about the maps :-) On Tue, May 17, 2016 at 2:37 PM, Ryan Kaldari &lt;rkaldari(a)wikimedia.org&gt; wrote: _______________________________________________ Publicpolicy mailing list Publicpolicy(a)lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/publicpolicy

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 &lt;johnpsadowski(a)gmail.com > 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&gt; 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 &lt;johnpsadowski(a)gmail.com&gt; > 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 &lt;rkaldari(a)wikimedia.org&gt; >> >> > >> 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 &lt;jrogers(a)wikimedia.org&gt; > >> 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 &lt;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 &lt;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 > >>> > >>> NOTICE: This message might have confidential or legally privileged > >>> information in it. If you have received this message by accident, > please > >>> delete it and let us know about the mistake. As an attorney for the > >>> Wikimedia Foundation, for legal/ethical reasons I cannot give legal > 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 > >>> our legal disclaimer. > >>> > >>> > >>> _______________________________________________ > >>> 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 > > > > _______________________________________________ > Publicpolicy mailing list > Publicpolicy(a)lists.wikimedia.org > https://lists.wikimedia.org/mailman/listinfo/publicpolicy > > > > > > -- > > Invest in an open future. 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