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