This post originally appeared on the Shapeways blog. And yes, I know that this story was on hyperallergic well before it made it to the New York Times. I wrote this as they started boarding my flight to Tokyo for the International Conference on Digital Fabrication and didn’t have time to do as much hyperlink due diligence as I would have liked. That’s also why the questions that open it don’t have reference links. But enough meta-post, let’s get on to the post.
There is a lot to discuss following The New York Times’ Swiping a Priceless Antiquity…with a Scanner and a 3-D Printer about the Bust of Nefertiti in the Neues Museum that was surreptitiously 3D scanned by two German artists: Is their story of how they obtained the scan true? What does it mean for the ongoing dispute about the appropriateness of such an artifact residing in a German museum? Should more museums be releasing high quality 3D scans of their collection? Where can I get a copy of the file?
Some people also eventually start to wonder about copyright. Are the artists infringing on any rights by creating the scan? Do the artists have any new copyright in their scan? If the museum wanted to control scanning of objects, can they use copyright? If you are one of those people, this post is an attempt to give you some answers.
Is Scanning the Bust Copyright Infringement?
No. The bust itself is more than 3,000 years old. There was no concept of copyright when it was created (as far as I can tell—legal scholars of ancient Egypt, prove me wrong!), and we are well beyond the current life plus 70 years term of copyright protection today. The bust is firmly in the public domain and, at least from a copyright perspective, available for anyone to copy, remix, and build upon without permission.
Do the Artists Who Created the Scan Have Rights in Their Scan?
Most likely not. In the United States the creator of a digital scan does not get a copyright on the scan file independent of the object being scanned. The situation is a bit less clear in the EU, but there are strong arguments [outlined here] to come to the same conclusion.
Note that this is different than how photographs are treated. Why the difference? The short version is that copyright is designed to reward creativity. These types of digital scans may take a lot of work to be accurate, but they are designed to avoid introducing creative variation into the file. The goal of the scan is to copy the object as perfectly as possible – integrating creative interpretation would be counter to that purpose. (If this explanation feels incomplete to you, keep watching this space. We’re working on a whitepaper that takes a bit of a deeper dive into the issue.)
Can Museums Stop This Sort of Scanning?
Not with copyright. However, there are potentially other ways. Museums control access to the artifacts and can condition that access on all sorts of rules. Just as they can require you to pay a fee or leave your bags at the door in order to see an artifact, they can say that in return for access to the artifact you agree to not take a scan.
However, that sort of restriction has at least two shortcomings. First, enforcement is restricted to people who agree to the terms. That means that they can punish the person who physically accessed the object for violating the terms. But a person who just downloaded the scan never agreed to those terms – and therefore shouldn’t be held responsible for violating them.
Second, as this incident vividly illustrates, trying to prevent scanning may be a fool’s errand. While museums may be able to impose these sorts of rules, it may be better in the long run to create their own high-quality scans and release them instead of waiting for bootleg versions to leak out.
Today we are happy to announce the Shapeways transparency report for 2015. This report is designed to give everyone in the Shapeways community insight into how our systems governing intellectual property disputes and third party access to Shapeways user information work.
What is a transparency report, and why publish it?
A transparency report is a public document that sheds light on how internal processes here at Shapeways work in practice. While the entire Shapeways community is impacted by our policies covering things like copyright disputes and privacy, in most cases individual disputes over those issues happen behind closed doors. This is a good thing in specific cases – community members should be able to resolve their differences outside of the spotlight. However, it can also make it hard for people who are not directly involved in a dispute to understand how the process works, or how those processes are working in aggregate.
The transparency report helps to summarize how our processes work and to give the entire community a better understanding of the trends emerging from them. It also helps the larger public and policymakers understand how systems grounded in law play out in reality. As we note in the report, it is impossible to evaluate the laws that control how Shapeways operates without understanding how those laws impact Shapeways and the Shapeways community.
What’s in this report?
I encourage you to check out the report itself, but some high level points are worth mentioning. The most striking is how trademark takedown requests are interacting with traditional copyright takedown requests. Last fall we, along with a number of similarly situated companies, raised concerns to the White House about a trend in takedown requests. We noticed that rightsholders were combining trademark claims with copyright claims. A side effect of this combination – intended or not – is to remove the dispute from the notice and takedown process that provides protections for users accused of copyright infringement.
This report puts some numbers behind that concern. Of the 761 copyright-related takedown requests we received in 2015, 582 (that’s 76%) also included trademark requests. As a result, 76% of the copyright takedown requests were outside of the notice and counternotice process established by the Digital Millennium Copyright Act (DMCA). That means that only about a quarter of the copyright takedown requests we get are actually covered by the DMCA process created by the U.S. Congress to govern such requests.
The report also contains some spaces without numbers. The report contains sections for requests for user information by governments and by third parties with court orders. Shapeways did not receive any such requests in 2015. However, we included these sections in the report so community members could be confident that the absence was because we did not receive them, not that we were avoiding talking about them. Along those lines, we have also registered our warrant canary with CanaryWatch.org.
We hope that this report is helpful to our community. If you have any ideas of how to make it better, feel free to hit me up via email at firstname.lastname@example.org or in the comments below.
Probably, but not for a while and not in the ways we’d anticipate.
This is an embarassingly late post. At the beginning of the year professor Timothy Holbrook at Emory University School of Law wrote a piece (thanks Andrew!) tied to a paper he and professor Lucas Osborn at Campbell University School of Law published about 3D printing and patents. The article appears to call for something of a copyright-ification of patents with strict liability for transmitting files for patented objects over the internet. Today, in order to infringe on a patented object you need to make the patented object. The article argued in favor of making it infringement to merely distribute a file that represented a patented object. This struck me as a bad idea, but it was interesting enough that I downloaded the paper myself. While the paper didn’t convince me, it did raise some interesting questions about the future of patent and 3D printing.
Tying patent infringement to distributing things like plans about a patented object would be a big change to the way patent law thinks about infringement. Part of the bargain of patent law is that you get your patent in exchange for telling the public about your invention. The public can learn from the invention, but can’t use or produce it without your permission. Preventing people from distributing CAD files for 3D printable patented objects would make the learning part of the bargain a whole lot harder. It could also make things kind of crazy if the USPTO started accepting CAD files as part of patent applications. To the authors’ credit, they do a good job of cataloging all of the times that courts have declined to expand patent law in this way in the past.
That is not to say there isn’t a kind of logic to the idea. In a world where everything can be automatically replicated with the touch of a button, it may be that the costs of turning distributing CAD files of patented objects into infringement are outweighed by the benefits of giving patent owners a way (maybe the only way?) to stop infringement.
However, that comes with a big ‘if’ that captures what I’ve grown to think of as a classic flaw in many 3D printing-related policy arguments. To simplify, it is the leap that goes from “there is a thing called 3D printing” to “3D printers can replicate everything perfectly at the touch of a button.” This leap skips past all of the messy details about how 3D printing can be imperfect and limited, and how those imperfections and limitations can reduce the need for revolutionary policy responses.
After reading the article, that is pretty much where I thought I would stop: another call for revolutionary expansion of rights before the revolutionary change in technology is anywhere close enough to know if it is necessary.
However, in the second half of the paper the authors lose the courage of their convictions, and I mean that in the best possible way (really!). This was surprising to me, especially for a law review article (the format of which was once described to me as “spend 50 pages arranging deck chairs and then 5 pages at the end making a point.”).
I found the second half of the article to be an interesting analysis of the types of considerations that policymakers would need to weigh before making a big change in patent law: how easy is it to actually turn a CAD file into the object that represents it? what legitimate purposes might someone download a CAD file for? how interchangable must an object and a file that represents an object be before you can call them equivalents? how do you quantify the benefits of widespread digital distribution of objects before exposing it to patent liability? what costs would such a shift have on the legitimacy of the patent system as a whole?
None of these questions are necessarily new, but I found that the paper did a good job of bringing them together, walking through the analysis, and framing the argument. It was also nice to read the analysis as framed by actual patent experts, as opposed to kicking ideas around in my non-patent expert head.
Long story short: if you are interested in patent and 3D printing the paper is worth checking out. Don’t let the argument about massively expanding patent liability throw you - the rest of the paper is full of useful analysis.
As the headline suggests, this is a second blog post that continues on this post. All of the disclaimers and facts from that post apply, including that this is a general analysis of issues of copyright and 3D models which may or may not apply to any specific model.
The short summary is that a company called Just 3D Print has downloaded a number of files from thingiverse and is selling them on eBay in violation of the Creative Commons (CC) licenses applies to those files. When contacted by the designers, Just 3D Print replies that does not need permission for reasons discussed in the previous post and expanded upon below which boil down to a claim that they are in the public domain.
I have now contacted Just 3D Print and confirmed that the behavior and justifications attributed to them in fact come from them. After reading their lengthly response in the thingiverse comments, I asked them for additional comment. The rest of this post is my attempt to contextualize their justifications. As I explained to Just 3D Print, while unfortunate, in some ways I view this dispute as beneficial. It takes a number of somewhat theoretical discussions and gives them concrete facts. If nothing else, that may make the discussion somewhat easier to understand.
I’m going to start with the specific justifications Just 3D Print made to me in their email response (which they sent with a proviso that I was free to share it) and then include one or two that they only included in the thingiverse comments. I’ll quote or summarize in a way that I hope makes this reasonably understandable, so keep an eye out for quote marks to know where the language itself comes from.
1. “No United States court has ruled a Computer-Assisted-Design file, or a
derivative thereof, as inherently copyrightable (unlike photographs,
This is absolutely true. As I wrote yesterday, in many if not most cases involved in this dispute, it is also largely irrelevant. The copyrightability of CAD files is highly important if the object represented in the file is not protected by copyright or if the file was not created by the person who created the object represented in that file (i.e. if it was scanned or modeled based on an existing object). Sculptural works - that is, physical non-functional items - are protected by copyright law. See 17 U.S.C. (a)(5). Many of the objects in dispute will qualify as sculptural works. They do not lose their protection simply because they are represented in a CAD file. If that was the case the act of scanning any sculpture would automatically put it into the pubic domain.
2. “The essence of a CAD file is that it is a set of instructions for
producing a physical item. There is a rich history of United States IP
law, that goes back to before the United States was even a country,
regarding physical items. This history says that physical items are not
protect-able by their owners/inventors unless they have a patent, are
sourced from a pre-existing copyright, or are a “work of
art”/copyrightable. 90%+ of all products on sites like Thingiverse.com
clearly do not fall into one of these three buckets- which means anyone
and everyone can produce said products for any legal purpose.“
This mixes a few things, none of which support the position that everything on thingiverse is in the public domain. As for the “set of instructions” argument, it goes back to the copyrightability of CAD files again. I’m actually in the middle of a longer paper on this topic, but for now let’s just say that even if a CAD file is just a non-copyrightable set of instructions (something I believe to be largely true), everything in my response to 1 above still holds. That is, many of the non-functional objects represented in the files are still protected by copyright.
As for the physical items, I believe that this conflates “physical items” with “functional items.” Functional items are in fact outside of the scope of copyright protection. As a result, if they are not protected by patent they are largely in the public domain. However, not all physical items are functional items. Many sculptural or decorative items are well within the scope of copyright protection and have been for some time. Again, see 17 U.S.C. (a)(5).
3. “In order for individuals to keep a patent, copyright, or most other
IP valid, they have to take reasonable steps to prevent other
individuals from infringing on their IP. Even if one assumes that, in
the future, a court finds CAD files/derivatives thereof copyrightable
(which is highly unlikely), individuals who post said designs online for
anyone and everyone to download are doing the exact opposite of taking
reasonable steps to protect their IP.”
Let’s set aside the question of if you need to take reasonable steps to protect your IP rights in order to maintain them. In the vast majority of cases this is not the case, but I can think of enough lawyerly caveats that I want to avoid the digression.
Fortunately, I can dodge that question entirely because thingiverse designers are not posting “designs online for anyone and everyone to download.” Well, at last that isn’t all they are doing. Thingiverse designers are making their works available to the public explicitly conditioned on a license. While the terms of the license may be different, as a legal tool it is identical to what governs every movie available for streaming on netflix. If, for the sake of argument, it is required to take steps to protect your copyright in order to maintain it, distributing works with a license strikes me as a completely reasonable step to protect your copyright.
4. “Some claim that the Creative Commons license protects designers who
upload their CAD creations online. This is false. The CC license
directly contradicts existing United States IP law and has never been
challenged in a United States Court (in the entire world, it has been
involved in 10 cases-https://wiki.creativecommons.org/wiki/Case_Law- and in these cases it was either not even discussed or existing IP law/precedent was used instead of the CC license).”
I’ve never read an argument as to why CC licenses “directly contradict existing United States IP law” so I don’t really understand where it is coming from. If someone has a link I’m happy to add it here. In fact, CC licenses were explicitly designed to use existing US IP law to make sharing easier and do a pretty solid job of that. If the model is protectable by copyright (see 1 above), a CC license is as valid as any other.
5. This point, which I am summarizing from a long paragraph, is essentially that 3D printing has grown in large part because of the expiration of patents on the printers themselves, and that somehow copyright on 3D models would impact this. In the spirit of fairness I’m going to quote the point in its entirety now:
The biggest reason that 3D printing, and the online design community
that supplies CAD models for 3D printing, has taken off in the
incredible way it has these last few years is because the main/most
fundamental patents relating to 3D printers expired in the early 2000s
and a wealth of innovation poured into the space with 500+ companies
producing cheap, consumer friendly 3D printers instead of five companies
producing $20,000+ printers. Imagine a world where the patent holders
claimed that the physical innovations they came up with, or the computer
files used to create said items, were “works of art”/copyrightable. In
this world, 3D printers would not be widely available to the public
until 2050 or later. If this was true, what is to stop other
manufacturers from also claiming their products are “works of
art”/copyrightable? New drugs, technologies, and all physical products
would be granted a government-protected monopoly that would extend to
the current age of Mickey Mouse. Considering that we, and online
designers, are only partaking of the 3D printing renaissance because of
the United States reasonable policy of allowing innovations to be open
to the public after a patent expires, it is incredibly ironic that
members of this same community would spit on this tradition in favor of
extending an extremely long government monopoly on all physical
products. So, in the best interest of the community, we hope that the
public, and courts, will agree with us and prevent CAD models from being
inherently copyrightable-or the consequences will be incredibly severe.
I totally agree that a big part of the explosion of 3D printing has to do with the expiration of patents on 3D printers themselves. I have no idea why copyright protecting individual 3D models has is impacted by that observation one way or the other. Again, if someone can flesh it out I’m happy to link it here.
6. “We have found that the vast majority of designers who post their designs
to sites like Thingiverse.com do not care about their monetization
(after all, in uploading them to Thingiverse they are granting the
site’s owner/public traded Israeli company Stratasys, Inc. a license to
do what they will with the design), but would like to be credited/linked
whenever the design is used. We, and most others, are happy to do this.
The only issue is that eBay, Amazon, Etsy, etc. block us from putting
links in our listings to external sites (with select few exceptions). We
are currently working with eBay, others to see if this can be changed.
Until such a time, all we can do is have a plain text reference.“
This does not appear to be the response that they gave designers who contacted them about crediting the design in compliance with the license. If they are now complying with the BY provision of the CC license, that’s a great thing. However, if the CC license also has a non-commercial restriction then credit alone isn’t enough to comply. They could certainly get an additional license to sell the model commercially, but that license is not implied simply by putting the model up on thingiverse.
7. The next three points are drawn from Just 3D Print’s response in thingiverse comments. I’m just going to summarize them because you can read the entire text here. The first point is that this is only coming to light because a competitor emailed designers to give them a heads up about Just 3D Print’s behavior.
I don’t see how that point is relevant at all. If Just 3D Print is violating the copyright of designers, the fact that the designer did not know about it until they were tipped off does not change the infringement. The fact that other parties may be infringing in similar ways is also irrelevant. Designers are free to pick and choose who to go after for infringement.
8. I can quote this one because it is short: “Yes, all photographs are copyrighted by their
creators, but in order to defend a picture/tell people not to use it,
it must be registered with the U.S. copyright office. “
This is false. Helpfully, the US Copyright Office has a FAQ question that is exactly on point. While you may need to register your copyright in order to bring an infringement lawsuit, your copyright can still be infringed prior to registration. Copying a copyright-protected photo outside of the scope of a license (absent fair use) is going to infringe upon the copyright in the photo regardless of its registration status. In other words, you can tell people not to use your photos without registering them. (This actually creates a huge issue with what are know as “orphan works,” but boy if you think I’m going to make this post any longer by writing about that you have another thing coming.)
9. To summarize the last point I’ll address in this post, thingiverse violates the noncommercial restrictions on the licenses so the licenses are invalid.
Two reasons that this is wrong. First, thingiverse is not bound by the terms of the CC licenses because designers have a separate agreement with thingiverse. When you sign up for a thingiverse account you agree to terms and conditions, and those terms and conditions govern how thingiverse can use your models. There is nothing improper about having different licenses for the same work. To go back to the example I used yesterday, the license that allows HBO to stream Mad Max to its subscribers is very different from the license that allows me as a subscriber to view Mad Max.
Second, the fact that someone else is violating a license generally does not give everyone else permission to violate the license.
If you made it this far, thank you I guess? I’m bothering to write this because as 3D printing and design grows I think it is important for everyone to have a strong understanding of what is - and is not - protected by various types of copyright. Hopefully it is of some use to some people. As I mentioned yesterday, I’ll do my best to update this post or add a new post as more info becomes public. Finally, if you think I missed something or got something wrong, don’t be shy. There are public and private ways to get in touch on my about page. Send me a link to all of the reasons you think I am dumb.
Image: Sad Face! IMPORTANT NOTICE by thingiverse user loubie. Since this photo is licensed under a CC-BY license, including this credit allows me to reproduce this image without violating loubie’s copyright. Since the photo was offered under a CC-BY license on thingiverse, it also means that I didn’t need to ask for additional permission to use it because the license itself grants me permission. update: Richard Horne called me out (nicely) on twitter about my assumption that the CC license on a thingiverse page extends to the photo. I do think that there is a bit of ambiguity around the relationship between the two (setting aside any fair use arguments I might have in this specific case), but have to concede that his reading is probably better. I reached out to Loubie on twitter and she graciously granted me permission to use the image here.
[edit 2/20/16: After getting more specific information about Just 3D Print’s legal arguments I addressed them point by point here.]
For better or worse, I
need to open this post with a disclaimer.
This post comments on a dispute on thingiverse that involves thousands
of models. It is not legal advice, and
the legal analysis for any individual model may turn on facts specific to that
model. In light of that, if your models
are directly impacted by this dispute you should consider talking to a lawyer
before taking any specific action. OK,
on to the post.
This post is about a dispute on thingiverse first raised (to
my knowledge) by thingiverse user loubie.
Here’s her post,
and I recommend taking a look before reading on. It is short and gives all of
the context, although I’ll try and summarize below. The dispute turns in part on what I interpret
to be a misunderstanding of how copyright in CAD files works. Since I’ve written
about this sort of thing with an emphasis on the limits of copyrightability in
CAD files it seemed worth jumping in. The tl;dr version is that right now it is very hard for me to see the justifications offered by the alleged infringer as being valid.
Loubie has alleged that ebay seller
just3Dprint pulled around 2 thousand models and associated images by
multiple designers from thingiverse to sell on an ebay store. Just3Dprint is allegedly doing this without
permission of the designers and, at least in some cases, in violation of the
terms of various CC licenses on the models.
[edit 2/20/16: I have confirmed from Just 3D Print that they are using
the models as described and that the arguments being put forward are
theirs.] When Loubie reached out to just3Dprint she received a response that
deserves to be quoted in its entirety:
“When you uploaded your items onto Thingiverse for mass
distribution, you lost all rights to them whatsoever. They entered what is
known in the legal world as "public domain”.
The single exception to public domain rules are
“original works of art”.
No court in the USA has yet ruled a CAD model an original
work or art.
Therefore, you have no right to exclude others from
utilizing the CAD models you have uploaded.
Furthermore, if in the future we do get a precedent in the
USA for establishing CAD models as “original works of art”, we would
still likely be just fine as we are not re-selling your CAD models, but rather
“transformative” adaptions of them in the form of 3D printed objects.
P.S. When you created these CAD files, did you really want
to limit the amount of people who could enjoy them to the 0.01% of the USA with
a 3D Printer? 100% of America can purchase the items from us at a reasonable
cost and enjoy them-creating made in the USA jobs in the process as well.
Furthermore, if you hate the idea of people profiteering from your work, you
may want to take it up with Makerbot/Stratasys who only hosts Thingiverse for
AD revenue, to sell more 3D printers.“
For the purposes of this blog post and to analyze the issue,
I’m going to assume that all of these allegations are true and that the models
and images in question are licensed under a variety of CC licenses. Let’s break down why this response is wrong.
Copyright in CAD
I’ll admit that this case has given me a bit of pause in how
I talk about CAD and copyright. In at least twowhitepapers
on the topic (and probably other blog posts and speaking opportunities), I have
tended to focus on the “legally interesting” cases of a CAD file that represents an object that is not itself eligible for copyright protection (think a purely functional object like a screw or mechanical part). I have done this because cases where the object being modeled is categorically eligible for copyright protection (think a statue or other artistic work) are much easier to deal with. The model is protected by copyright, in its CAD form or any other tangible form. Case more or less closed.
To say it slightly differently, in most cases questions about an independent copyright in a CAD file is only interesting if there isn’t already a copyright in the model itself. If the subject of the model itself is protected by copyright, the fact that the model is depicted in a CAD file does not remove copyright protection. When I write about CAD copyright, I’m usually doing it in the context of using copyright in the CAD file as a fallback when copyright in the model itself isn’t available. In those cases I am highly skeptical of essentially adding copyright protection where it does not usually exist merely because it is is depicted in a CAD file.
But for many of the models featured on the ebay shop, that skepticism doesn’t matter. The underlying model is protected by copyright. Which means the model is protected by copyright even if it is contained in a CAD file, the same way that this blog post is protected by copyright even though it lives as some HTML in your browser.
If the Model is Protected by Copyright, a Copyright License is Binding
Admittedly, I’ve written about how Creative Commons (CC) licenses can sometimes be complicated in some 3D printing contexts. However, that complication is limited to challenges with giving attribution to a physically printed object. What is not complicated is if CC licenses can be applied to 3D printable objects, or if their terms are enforceable. That answer is clearly yes if the model itself is protected by copyright. To repeat, CC licenses can be applied to 3D models that are protected by copyright.
Furthermore, attribution is easy if you are selling a model on a website. You can just provide a name and link to the designer in the description. That makes my concern much less relevant in this context. The non-commercial restriction is also as valid in the 3D printing context as it is in any other.
What does this mean? If you have a copyrightable model and someone is using it in violation of the license you attached to it, that someone is likely infringing on your copyright (unless the use is protected by something like fair use). If a seller on eBay is infringing on your copyright, you can report the violation to eBay. eBay has a policy that a repeat infringer will also be removed from their marketplace.
What About the Photographs?
The above analysis mostly focused on models and files. However, the allegations include that just3Dprint took photographs of models from thingiverse pages without permission. Regardless of the copyright status of the models or the files, in most cases the photographs will be protected by copyright. I’ve always thought that it was a bit unclear if the CC license on a thingiverse page applies to the photos as well as the model. However, there are basically two choices - either the photo is covered by the CC license or it is not covered by the CC license. If it is covered, the license means that a random third party can use the photo as long as they comply with the terms. If it is not covered, a random third party cannot use the photo at all (again, subject to fair use) because it is not licensed at all to them. Neither of those is permission for a random third party to use the photo as they see fit.
Two More Things
License to Thingiverse is not a license to everyone
In the response, just3Dprint suggests that uploading the model to thingiverse somehow puts the model in the public domain and that the uploader loses all rights to the model. This is false. For one thing, if it was true, the CC license wouldn’t matter - things in the public domain are free from copyright protection and therefore licenses don’t matter.
Printing a 3D model is not usually going to qualify as a transformative use
just3Dprint claims that even if the models were protected by copyright, printing and selling them would not violate copyright because doing so is a “transformative adaptation.” Honestly, I have no idea what this means. Transformation is often part of the first prong of a fair use analysis (good overview of how this works here) and, to simplify things almost beyond recognition, often focuses on adding something new to the work (a viewpoint, a context, or things like that). While there are always interesting discussions to be had around transformation and fair use, it is hard to imagine that simply downloading and printing 3D models without any additional context would qualify as transformative in a fair use analysis.
To summarize: assuming that the facts as repoted by loubie are accurate, I think it is safe to say that I’m skeptical of just3Dprint’s claims. There are situations where just3Dprint may not need the permission of a designer to reprint and sell a model uploaded to thingiverse, but none of the justifications offered feel legitimate to me or seem to address those situations. I may be wrong, or convinced otherwise, and new information may come out. If any of that happens, I’ll do my best to update this post.