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Image credit: The Sunlight Foundation

AB 2880 — Kill (this) Bill

Fellow Californians, please join us in opposing AB 2880, which would allow and encourage California to extend copyright protection to works made by the state government. We think it’s a bad idea that would wind up limiting Californians’ ability to post and read government information on platforms like Medium.

On Medium, people can write at length about policy (among other things) and respond to each other. We’re proud that in the few years it’s been around, Medium has helped leaders and citizens talk with each other about matters of substance.

The White House regularly posts letters, interviews, photo collections, and speeches, including the 2015 State of the Union address, which President Obama posted before he delivered it. Former Secretary Hillary Clinton posts frequently about a range of issues from domestic infrastructure to foreign policy. Senator Chuck Schumer detailed the basis for his opposition to striking a deal with Iran and Senator Elizabeth Warren analyzed the history of election year Supreme Court nominations. The U.S. Trade Representative released the draft of the Trans-Pacific Partnership for discussion. And in the past few days, Vice President Biden and Senator John McCain exchanged views about civility and leadership, inspiring others to join their conversation.

Here in California, Lieutenant Governor Gavin Newsom has written about marriage equality and gun control. San Francisco Board of Supervisors Member Scott Wiener posts on topics like public transit and and parental leave. Rep. Barbara Lee posted thoughts about Cuba and Silicon Valley’s race problem. Congressman Mike Honda posts about a range of topics. Representative Kevin McCarthy, Congressman Sam Farr, Representative Maxine Waters — it goes on.

Citizens can use Medium to engage both leaders and fellow citizens in debating the details of proposed laws. POPVOX California posts frequently about pending legislation. Danny Sullivan posted a thorough evaluation of California’s proposed anti-drone law, and Dave Maass wrote a detailed open letter to Governor Brown about CalECPA. Former Governor Arnold Schwarzenegger posted comments on SB 32 along with broader thoughts on California infrastructure and energy policy.

But, our dream for Medium working with government goes even further than providing a place for leaders to publish statements and citizens to write open letters. We want it to be a place where anyone can post primary documents, like transcripts of legislative proceedings, environmental impact reports, or agency research reports, or embed content like videos of city council meetings. These primary documents can help anchor substantive debate about the details of what our government is working on.

AB 2880 would weaken the potential for these uses by putting California’s government documents under copyright by default. Posting documents like these to Medium in their entirety (with or without commentary) is exactly what we hope citizens will do. But AB 2880 would make anyone who does this a copyright infringer subject to potential penalties that would easily run to hundreds of thousands of dollars (leaving aside legal fees).

We want to be clear: the problem is not just whether, under this bill, a person would ultimately be found to infringe by posting government information. An equally big problem is the chilling effects that will be created by uncertainty about what is legal to post. In a world where government documents are free of copyright restriction, everyone knows they can copy and distribute them however and wherever they want. By contrast, in a world where the legality of posting a government document depends on a set of complex and subjective legal mechanisms, people will refrain from posting because they don’t want to take the risk of winding up on the wrong side of a copyright lawsuit. Large and uncertain copyright liability under the existing statutory damages regime would be a scary thought for anyone thinking about posting government documents online without explicit, advance permission. The regime contemplated by AB 2880 would give rise to norms of prior restraint — ask permission to post government material online or risk an expensive lawsuit — and cut off important civic conversations before they start.

Extending copyright protection to government documents bears no relation to the constitutional aim of copyright law: to promote progress by incentivizing people to write and create. Public servants need no such incentive to write the texts or film the meetings that structure and explain our state’s government. Taxpayers fund their creation because they are functionally necessary. No further incentive based on control of distribution is needed. Even worse, if extra revenue could be made by restricting distribution of a government document, it could only come at the cost of unfettered public access to it. The incompatibility between copyright incentives and government work is clearly embodied by the federal Copyright Act’s provision explicitly declining to protect works created by federal government workers. The incentives are no different for state government.

Further, this bill would create unnecessary bureaucracy. As just two examples, AB 2880 requires the state’s Department of General Services to track the copyright status of works created by the state government’s 228,000 employees, and requires every state agency to include intellectual property clauses in every single one of their contracts unless they ask the Department in advance for permission not to do so. This bureaucracy will burden, not encourage, the state’s development of material for its citizens.

In short, copyrighted government documents would restrict taxpayers’ access to the very information they’ve already paid to create. This outcome would at once distort the constitutional purpose of copyright law and undermine our state government’s admirable transparency. We ask our state leaders to consider that this bill threatens more harm to the public domain and transparency in state records than it stands to do good in other areas, and reject it.

The Sunlight Foundation and Electronic Frontier Foundation have published statements analyzing and opposing the bill. The Columbia Journalism Review published an analysis of its potential effects.

Californians, if you oppose this bill, you can use this handy web form provided by the Electronic Frontier Foundation to tell your representative.