California Assembly Looks To Push Cities To Copyright & Trademark Everything They Can

from the this-is-a-bad,-bad-idea dept

Here’s a bad idea. California Assemblyman Mark Stone is trying to get state and local governments to register copyright on basically anything they can. He may be doing so for what he thinks is a good reason, but the logic is very, very flawed.

If you’ve followed Techdirt (or US copyright law) for any length of time, you’re probably familiar with the fact that the federal government is barred from claiming copyright on any work created by the federal government (but it is able to hold copyrights that were transferred to it, which is another issue for another day). However, with state law, it’s a bit more murky. Many have (quite reasonably) argued that this same rule should apply to state laws as well. But states sometimes like to claim copyright in their works — and thus, for now, it’s officially a matter delegated to each state to decide for its own works. Remember when the state of Oregon claimed copyright in its own laws?

Here in California, government entities can claim copyright, but in very limited circumstances. In an important ruling back in 2009, a state appeals court said that under California’s Public Records Act, public entities could only copyright a very limited set of things if first receiving explicit approval from the state government. The ruling in Santa Clara County v. Superior Court noted that based on the state’s public records laws, government-created works should be assumed to be public domain, unless the state explicitly deems a category of work to be covered by copyright. In talking about the fact that California’s Public Records Act says that nothing is intended to “limit any copyright protections” the court said:

In our view, that phrasing operates only as a legislative recognition that copyright protection for software is available in a proper case; it cannot be read as an affirmative grant of authority to obtain and hold copyrights. The Legislature knows how to explicitly authorize public bodies to secure copyrights when it means to do so.

It then goes on to list out a few examples where the code explicitly allowed California public entities to get a copyright. This is why, last year, when the City of Inglewood in California tried to sue a critic for copyright infringement for posting mocking videos of city council meetings, the court quickly tossed it out.

Well, Assemblymember Mark Stone and some of his colleagues appear to want to change that with AB-2880. It would not just allow California public entities to get a copyright, but would pressure them to do so. Here’s the key bit that is fairly concerning:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires.

Later in the bill, it then forbids state agencies from waiving any intellectual property rights:

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.

It further notes that any such contract that waives the state’s intellectual property rights “shall be deemed void.”

Other questionable things in the bill would include requiring state entities to develop databases to track any intellectual property (which will only serve to increase the amount of claimed works, because once you have a database and information is tracked, it’s natural to want to see the data grow). The bill also would create an “outreach campaign” to teach public entities all about how they should use intellectual property — and to “develop sample language for licenses” that would be designed to prevent anyone else from using California public entity works.

Really.

Now, here’s the part, where I note why I think Assemblymember Stone and his colleagues meant well, even if they’re proposing a horrific idea here that would be immensely troublesome for a variety of reasons. Remember Yosemite? Earlier this year, the famed national park had to dump a bunch of classic and traditional names because it got into a legal fight with the previous “concessions vendor” in the park, who had received a trademark on many of the famous names in the park, and was demanding many millions of dollars in compensation to allow Yosemite to continue using those names.

From what we’ve heard, AB 2880 is something of a reaction to that totally ridiculous situation. And we agree that what happened with Yosemite was ridiculous and never should have happened, but it appears that Stone et al. got exactly the wrong message out of it. Unfortunately, it’s the message that legacy copyright industry players have been falsely trying to indoctrinate the world with, and it’s that everything must be owned somehow. The end result? Don’t want a concessions company to own the name “Curry Village” or “Ahwahnee Hotel?” Well, then make sure a state entity (in this case, Yosemite Park) owns the rights to them.

This solution, of course, totally ignores the much better and more appropriate solution which is simply don’t grant intellectual property monopolies on such things in the first place. The concession company should never have received those trademarks. But the California legislators pushing this bill don’t even seem to consider that. They seem to come from the incorrect (and dangerous) view that everything must be owned and, therefore, if it must be owned, why not make sure the public entity does the owning.

The public domain exists for a reason. The California Assembly should embrace it. Having California works go into the public domain isn’t something that needs to be stopped, it needs to be supported. There is no “loss” when that happens, the public only benefits. The Yosemite trademarks never should have been valid in the first place. The exact wrong answer is to think “Well, Delaware North shouldn’t have them, Yosemite should!” The right answer is: “There is no need for a trademark here.”

Of course, there’s also another big problem with the bill, even if it was designed to address the Yosemite situation. That one dealt with trademarks. But this bill is inclusive of any kind of intellectual property, including copyrights. It’s problematic enough when governments get trademarks, but it’s much more troubling when they get copyrights — which is why the federal government is barred from getting copyrights on works it creates in the first place. That’s a good example to set — and it’s one that the sponsors of this bill are explicitly rejecting.

One hopes that this bill was just an ill-thought out response to the ridiculous Yosemite result and that someone can explain to the sponsors of this bill what a huge mistake it is. I’ve met Assemblyman Stone in the past (he came to one of our Copia events last year) and was quite interested in building stronger relationships between government and the tech industry. Hopefully he’s coming to recognize that this bill would not do that at all, but would create a dangerous mess, in which important government records would be locked up. We’ve seen how this backfires in other states, or other countries that have concepts like Crown Copyright — and it’s frequently used to silence criticism, free speech and commentary. This bill is a bad idea all around.

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Comments on “California Assembly Looks To Push Cities To Copyright & Trademark Everything They Can”

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53 Comments
That One Guy (profile) says:

How about a trade?

Any government or state agency or group that files for a copyright/trademark on what they create is barred from using public funds to pay for anything related to it.

Commission a report and try to copyright it? They pay for the entire cost of the report out of their own pockets.

Decide to give your department a catchy new logo or catch-phrase to try to update your image and draw in tourists, filing for a trademark on either? Anything with that logo and/or catch-phrase is paid for personally by those in the agency or group who owns the trademark.

The public already pays their wages and funds them in the form of taxes, forcing them to pay again, or having something the public has paid for locked away from the public is absurd. If they want to try something like that they can pay for it themselves, no using public funds for it.

Jason says:

Re: How about a trade?

The public already pays their wages and funds them in the form of taxes, forcing them to pay again, or having something the public has paid for locked away from the public is absurd. If they want to try something like that they can pay for it themselves, no using public funds for it.

As far as I’m concerned that’s why any level of government—federal, state, and local—should be barred from claiming copyright on any work they create. It was paid for by the public, therefore it should be in the public domain.

I’d almost be willing to concede a few limited cases for trademark (or trademark-like) protection, but usually only for things like logos, seals, etc., to prevent misuse, falsely implying endorsement or official status, that kind of thing. But not copyright. If my tax dollars funded the creation of those records, I should be able to get my hands on them.

John Snape (profile) says:

BAD Idea

As someone who compiles California law books, from public domain sources, I hope this fails miserably.

There already is a (false) copyright on the California Code of Regulations, with a single company able to print (and charge an arm and a leg for) those laws.

If this is passed, it won’t be too long where the statutes are covered, and you’ll need to pay some company for the right to read the laws that, if you don’t follow them, could land you with fines or jail time.

dnball (profile) says:

States own many thousands of patents on inventions created with taxpayer funds [and make millions in licensing fees].

States — and cities and the federal goverment — own thousands of trademarks because they’re all marketplace participants [remember “Got Milk?].

Yet States shouldn’t own the copyrights in the works their employees create at taxpayer’s expense? Maybe not. But the idea should not be dismissed out of hand.

Copyright automatically attaches to every computer program every City and State directly creates and all created with City, State and Federal taxpayer funds. Should they all be public domain? Nope. Not only would that eliminate the government’s ability to recoup the creation expense by licensing or sell the program, it would be difficult to persuade a vendor to create any if its work product had to be disclosed to everyone [including competitors].

Mike Masnick (profile) says:

Re: Re:

States own many thousands of patents on inventions created with taxpayer funds [and make millions in licensing fees].

States — and cities and the federal goverment — own thousands of trademarks because they’re all marketplace participants [remember “Got Milk?].

I think both of those are problematic (especially on the patent side) and have said so for years. I can see no legitimate justification for them.

Yet States shouldn’t own the copyrights in the works their employees create at taxpayer’s expense? Maybe not. But the idea should not be dismissed out of hand.

It’s not out of hand. It’s with tremendous thought and experience over years of understanding what happens in these cases.

Copyright automatically attaches to every computer program every City and State directly creates and all created with City, State and Federal taxpayer funds. Should they all be public domain? Nope.

Yes, actually. They absolutely should be. Which is why the federal gov’t right now is looking to do exactly that.

Not only would that eliminate the government’s ability to recoup the creation expense by licensing or sell the program

The government is not a business. Repeat that line over and over again.

it would be difficult to persuade a vendor to create any if its work product had to be disclosed to everyone

This is misleading to wrong. As stated clearly, works done by outside contractors are subject to copyright. It is only work done by gov’t employees that are not.

nasch (profile) says:

Re: Re:

Not only would that eliminate the government’s ability to recoup the creation expense by licensing or sell the program

Keep in mind that they would be recouping these expenses from members of the public, and that’s who already funded the expenses with tax money. So there is no need to recoup anything; if it’s worth doing then let the taxpayers fund it, and if it’s not, then don’t do it.

dnball (profile) says:

Re: Re: Re:

No, the state government does not recoup its invention creation costs “from members of the public.” It recoups those costs from companies [worldwide] who chose to license the patented technology to create products the public needs.

Win [new invention], Win [state collects patent license fee], Win [public gets new product].

nasch (profile) says:

Re: Re: Re:3 Re:

Why would a private company spend its resources to turn an invention into a product if any other could freely do so as well? None will.

So there are no products without patents? Before patents nobody sold anything, and in markets or parts of the world without patents, there are no products being sold?

Which is why patent exclusivity is necessary.

Beneficial, maybe, but not necessary, and certainly the terms we have now are way, way too long.

dnball (profile) says:

Re: Re: Re:4 Re:

MOST products are not patented. Yet still many companies make nonpatented brooms, bleach, lampshades, salt shakers, ink, paint, plastic etc. etc. etc. — all of which, as a general matter, can lawfully be copied by competitors.

Research using public funds that generates information which merely tweaks or makes obvious improvements to already-existing inventions don’t go through the patenting process. They’re screened out as economically not useful. Whoever wants to commercially use that information may do so.

But research using public funds that generates patentable inventions is economically useful because those patents can be exploited to recoup the public’s investment. Why is this not obvious to you?

nasch (profile) says:

Re: Re: Re:5 Re:

Why is this not obvious to you?

The question is why do you think it’s so obvious? You still have not provided any evidence that society or the economy is better off with these patent fees than without them. We’re all aware of the theoretical justification for patents, which is all you’ve provided, but that doesn’t mean it actually works that way in general, and certainly doesn’t imply anything for any particular example.

dnball (profile) says:

Re: Re: Re:10 Re:

I take it you chose not follow the link I provided to the University of California Technology Transfer webpage that publishes the last 15 years of its annual reports. How about you do so, read a bit, and then conclude whether there’s evidence for my assertions.

And then ask yourself what evidence you have to share to support your assertion that patents do not stimulate innovation and new, life-saving and life-enabling products.

nasch (profile) says:

Re: Re: Re:11 Re:

I take it you chose not follow the link I provided to the University of California Technology Transfer webpage that publishes the last 15 years of its annual reports.

I did. Perhaps you didn’t see my response. There are two problems with that source of evidence:

1. it provides only revenue, not expenses
2. it cannot possibly say anything conclusive about the net effect of the program on society, only on the university

Since you’re claiming that the program is a net economic benefit to society, this is not useful in proving your point.

And then ask yourself what evidence you have to share to support your assertion that patents do not stimulate innovation and new, life-saving and life-enabling products.

I would be interested if you could point out where I made that assertion.

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

Inventions aren’t used. Products are used. Why would a private company spend its resources to turn an invention into a product if any other could freely do so as well? None will.

This is ridiculously ignorant. History has shown time and time again that there is massive innovation and product development with a LACK of patents. It’s when patents enter the space that the pace of product development slows down, because it limits competition.

The reason people make products — even when they can be copied — is to sell them or to serve their own needs. The idea that no one will invest in making products because others will copy makes no sense. You have tremendous advantages in making actual products, especially if you’re first to market, can build a brand and can better serve customers.

The idea that you can’t compete against a knockoff product suggests only a company that doesn’t belong in business.

Your knowledge of how business works is severely lacking.

Mike Masnick (profile) says:

Re: Re: Re:5 Re:

You can deny that patent protection stimulates innovation and promotes the creation of new products all you want. You have the right to be wrong.

I see. So now all you’re left with arguing is “nyah, nyah, nyah”?

The evidence is on my side. I pointed to studies showing most tech transfer is an economic loss. There is evidence showing that patents are rarely an incentive for building products.

And when we’re talking about publicly funded technology, the “businesses” you name have mostly been patent trolls, rather than useful services. Yes, there are some exceptions, but few and far between. And none of them required the patents.

The fact that businesses have been built based on university patents is not an argument in your favor. It just means that someone’s figured out a way to skim money off the inefficiencies in the system, not that it’s created overall economic benefit.

Gwiz (profile) says:

Re: Re: Re:7 Re:

…this is your little blog.

Interesting choice of words to describe a blog with 3/4 of a million unique readers a month, but whatever.

But if you can only tolerate sychophants who blow smoke up your backside and echo your worldview…

As a casual observer of this entire exchange, I will say that if I was serving on a jury concerning this, you would most definitely lose the case. You have backed up your assertions with very little supporting evidence and the evidence you have supplied doesn’t really back up what you are claiming.

Talk is cheap. Hard verifiable facts are what actually sways people.

dnball (profile) says:

Re: Re: Re:8 Re:

$118M in patent royalties in 2014 for UC alone and 86 new startups. Hard enough?

And why do I have the burden to prove patent monetization by states is bad policy?

Why isn’t the burden on those who believe [with no proof] that innovation and new products will magically appear in the marketplace if inventions [not products] created with public funds are made freely available?

nasch (profile) says:

Re: Re: Re:9 Re:

$118M in patent royalties in 2014 for UC alone and 86 new startups. Hard enough?

The problem is not that you aren’t providing numbers, the problem is that they don’t prove what you claimed.


And why do I have the burden to prove patent monetization by states is bad policy?

I thought you were trying to prove it’s good policy. And it’s your burden because you’re the one making the claim.

Gwiz (profile) says:

Re: Re: Re:9 Re:

$118M in patent royalties in 2014 for UC alone and 86 new startups. Hard enough?

Not really. Without a comparison, that “86 new startups” number is meaningless. Without the patents, there might have been 200 new startups using UC’s knowledge and all of them would be employing people and paying taxes too.

Gwiz (profile) says:

Re: Re: Re:11 Re:

Both of you either need to prove your position or just be quiet.

I’ve never stated any position on this at all, so I’m not sure what I would need to prove. All I’ve stated is that what you have thus far put forth as proof doesn’t actually prove what you are claiming.

You, on the other hand, have asserted your position, so the responsibility falls to you back up your claims. That’s how a debate between adults works.

nasch (profile) says:

Re: Re: Re: Re:

It recoups those costs from companies [worldwide] who chose to license the patented technology to create products the public needs.

Those are the members of the public I was talking about. The only cases when there’s even any possible net benefit to taxpayers as a whole is when the patent is licensed to a foreign company. That doesn’t seem worth the cost to me, but the case should be made based on that single scenario, not by pretending that licensing fees are magical money that comes from nowhere to fund the government.

dnball (profile) says:

Re: Re: Re:2 Re:

Hmm. “The only cases when there’s even any possible net benefit to taxpayers as a whole is when the patent is licensed to a foreign company.”

Yeah, that’s completely false. And silly.

Public funds dedicated to research fosters new information and inventions. Turning both into useable products takes more money — private money which demands a return on investment. This is Economics 101.

nasch (profile) says:

Re: Re: Re:3 Re:

Public funds dedicated to research fosters new information and inventions.

Then fund the research. No need to get patents involved.

Turning both into useable products takes more money — private money which demands a return on investment.

You’re saying companies wouldn’t be willing to take this public research and use it to make money unless they could be assured of exclusivity? Another assertion you have not proven.

dnball (profile) says:

Re: Re: Re:

The University of California collected $118M in patent licensing fees in 2014 alone. And spun off 86 startups [all who will employ people and pay taxes]. University technology transfer throughout the country — from public schools alone — is very lucrative and beneficial to the economics of our society. Those benefits are just rewards from taxpayer investment in public universities.

http://www.ucop.edu/innovation-alliances-services/innovation/innovation-impact/technology-commercialization-report.html

nasch (profile) says:

Re: Re: Re: Re:

University technology transfer throughout the country — from public schools alone — is very lucrative and beneficial to the economics of our society.

You have not demonstrated that. You would have to provide some evidence that the net benefit to society of licensing fees to the university is greater than the net benefit of letting people use those inventions for free. It’s possible that the university is better off, but that’s a much smaller claim, and one also not supported by the evidence you provided since those documents detail only revenues and not expenses.

dnball (profile) says:

Re: Re: Re:2 Re:

I have no burden to demonstrate anything.

We have a demonstrable and steady flow into California state goverment coffers of hundreds of millions of dollars collected from patent licensing that would not be collected if [as you prefer] the publicly-funded inventions were not patented and licensed. We have hundreds of start-up companies being formed in California in order to commercially exploit those inventions — companies that hire taxpayers and who then pay taxes.

What do you have in support of your scheme to dedicate to the public inventions created using taxpayer funds and what do you have to prove that those inventions would even be converted into products [requiring regulatory approval, branding, marketing, manufacturing, distribution, etc.] without offering private enterprise the exclusive right to exploit the inventions? Nothing.

Mike Masnick (profile) says:

Re: Re: Re: Re:

The University of California collected $118M in patent licensing fees in 2014 alone. And spun off 86 startups [all who will employ people and pay taxes]. University technology transfer throughout the country — from public schools alone — is very lucrative and beneficial to the economics of our society. Those benefits are just rewards from taxpayer investment in public universities.

This is wrong. Yes, Cal made a ton of money being a patent troll, but the “benefits” to the public are unproven. And the VAST majority of tech transfer offices have lost money. A very small number (Stanford, MIT, Cal) make money, but most do not.

https://www.techdirt.com/articles/20131122/01322825335/patenting-university-research-has-been-dismal-failure-enabling-patent-trolling-its-time-to-stop.shtml

And unfortunately, of the few that do make money, like Cal, they’ve mostly focused purely on trolling — using broad patents to shake down actual innovators, rather than actually transfering inventions into the commercial sector.

That Anonymous Coward (profile) says:

See that concession vendor could have gotten millions!
We can fix our budget, register all the IP and everyone will pay us!

IP isn’t our greatest asset, it is our greatest burden. So obsessed with IP we sacrifice common sense & dignity on the altar. Building more thickets of IP law, benefits no one except the lawyers.

Doesn’t CA have bigger problems to consider than trying to create new IP to be snapped up & then try to invent ways to profit from it?

Wendy Cockcroft (user link) says:

Re: Re:

I think that maybe next time I go off on an ancient Greek Cassandra-style rant I’ll just post “Ditto.”

Calling trademarks, copyright, and patents “intellectual property” tends to get people thinking of it as “property” because the word “property” is in there. This is loaded language, the idea being to attach all the emotion that goes with the desire to protect one’s own home, family, and stuff, etc., to ideas and words, etc., as if they are as real as your home, your family, and your stuff, etc.

And boy, does it work. This concept has so permeated the public consciousness it’s gone beyond the idea that everything must be owned. Indeed, you may find that many very public-spirited people who gladly pay their taxes and just love the idea of publicly owned parks, etc., become furiously defensive in discussions on copyright, etc., because they don’t even know where they got the idea from, they just “know” it. I know this because I’ve had those conversations many times. Indeed, I’ve had the most ridiculous shouting matches with people I’m normally friendly with over it. Why? Because every single individual I’ve ever had this argument with believes they have an idea that will make them some moolah and they don’t want some other toerag to make money off it first.

So please, for the love of {$deity or cause of your choice}, stop. Calling it. Property.

~ One exasperated Pirate, who should really just copy the above rant so she can paste it over and over again to save herself all the damn typing.

dnball (profile) says:

Re: Re: Re:

Then what is “property”?

The classic definition is the right to possess and use something to the exclusion of others.

You really need to get your head around the fact that intangible property rights have been part of Western law since at least 550 A.D. when codified in the Justinian Code [Book II, Titles I(33),(34) & II(2),(3) & IV & XX(22)].

The right to inherit, the right of continued possession of land, the right to recieve the benefit of a bargain, the right to have your product on an eye-level retail store shelf instead of the bottom shelf. LOTS of rights are intangible. And their all intangible. They exist only in the ether.

Your hurdle too high is to envision “property” as including the intangible end-products of inventive and creative mental processes. Why? Why is my poem any less “property” than your contractual right to remain in your rented apartment or your future possessory interest in land?

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