Image: Philip Pikart CC BY-SA 3.0 Unported

update: a better edited (thanks Torie!) version of this post ran in Slate two days after I posted it here. In the interest of simplicity (maybe?), I have appended the full Slate version below.

Today, after a three year legal battle, artist Cosmo Wenman released high quality scans of the Bust of Nefertiti currently residing in the Staatliche Museen in Berlin. This is the culmination of an extraordinary FOIA effort by Cosmo and he is rightly being commended for pushing the files into the public. You can download the files yourself here and I encourage you to do so.

Unfortunately, the files come with a strange and unexpected caveat - a license carved directly into the base of the file that purports to restrict their commercial use.

Image: Cosmo Wenman CC BY-NC-SA 3.0. Why can Cosmo license this image? I would argue because he added the blue lines on the side to try and suggest digitization, which is a creative act that is at least arguably protectable.

Is that restriction even enforceable? Is the museum that created the scan just trying to bluff its way into controlling the scan of the bust? I’m writing about it so you can guess that the answer is probably yes. But let’s go a bit deeper.

Background

The Bust of Nefertiti was not a random target for this effort. In 2016 a pair of artists claimed to have surreptitiously scanned the bust and released the files online. This drew attention in part because of the restrictions that the Staatliche Museen generally places on photography and other reproduction of the Bust. Shortly after the announcement many experts (including Cosmo) questioned the veracity of the story.

This skepticism was grounded in a belief that the scan itself was of a higher quality than would have been possible with the technology described by the artists. In fact, the file was of such high quality that it was likely created by the Staatliche Museen itself.

Believing this to be the case, Cosmo initiated the equivalent of a FOIA request to gain access to the Museum’s scan (the Staatliche Museen is a state-owned museum). This turned into a rather epic process that ultimately produced the files released today. One of the conditions placed by the Staatliche Museen on the released file was that it was released under a Creative Commons Non-Commercial license. On its face, this would prevent anyone from using the scan for commercial purposes.

Is the Non-Commercial Restriction Enforceable?

Creative Commons licenses are copyright licenses. That means that if you violate the terms of the license, you may be liable for copyright infringement. It also means that if the file being licensed is not protected by copyright, nothing happens if you violate the license. If there is not a copyright protecting the scan a user does not need permission from a ‘rightsholder’ to use it because that rightsholder does not exist.

As I wrote at the time of the original story, there is no reason to think that an accurate scan of a physical object in the public domain is protected by copyright in the United States (there is more about this idea in this whitepaper). Without an underlying copyright in the scan, the Staatliche Museen has no legal ability to impose restrictions on how people use it through a copyright license.

While the copyright status of 3D scans is currently more complex in the EU, Article 14 of the recently passed Copyright Directive is explicitly designed to clarify that digital versions of public domain works cannot be protected by copyright. Once implemented that rule would mean that the Staatliche Museen does not have the ability to use a copyright license to prevent commercial uses of the scan in the EU.

I have written previously about the role that licenses can play to signal intent to users even if they are not enforceable. In this case, it appears that the Staatliche Museen is attempting to signal to users that it would prefer that they not use the scan for commercial purposes.

While that is a fine preference to express in theory, I worry about it in this specific context. There are plenty of ways for the Staatliche Museen to express this preference. When a large, well lawyered institution carves legally meaningless lawyer language into the bottom of the scan of a 3,000 year old bust to suggest that some uses are illegitimate, it is getting dangerously close to committing copyfraud. The Staatliche Museen could easily write a blog post making its preferences clear without pretending to have a legal right to enforce those preferences. In light of that, this feels less like an intent to signal preferences than an attempt to scare away legitimate uses with legal language.

Bonus: Moral Rights

If you have made it this far into the post, I’ll throw one more fun twist on the pile. The Staatliche Museen has added quasi-legal language to the bust scan itself by carving text into the bottom. The file itself is digital, so it is fairly trivial to erase that language (by filling in the words, cutting off the bottom, or some other means). Could the Staatliche Museen claim that removing the attribution language violates some other right?

The most obvious place to look for a harm that the Staatliche Museen could claim is probably the concept of moral rights. Moral rights are sometimes referred to as part of the catchall of ‘related rights.’ These rights often include things like a right of attribution and a right of integrity. In the United States these rights are codified (in a very limited way) in 17 U.S.C. §106A (and are therefore often referred to as ‘106A rights’, or VARA rights after the Visual Artists Rights Act that created the section).

Could removing the attribution language violate the Staatliche Museen’s moral rights? I would argue not. While removing attribution or intentionally modifying the work to remove the fake license might create problems if the Staatliche Museen was the ‘creator of the work’ for copyright purposes, that is not the case here. The Staatliche Museen did not create any work that is recognized under US (and soon EU) copyright law. That means that there is nothing for the moral rights to attach to. That being said, I am far from an expert on moral rights (doubly so outside of the US). I’ll link to any better analysis that I see in the coming days.

Update 11/16/19: Marcus Cyron brought to my attention that, for reasons related to the technical structure of the Berlin museums, the name I was using for the museum in this piece was incorrect. I have therefore changed all of the references to the “Neues Museum” to instead refer to the “Staatliche Museen”. That change aside, the substance of the post remains the same.

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The Nefertiti Bust Meets the 21st Century

When a German museum lost its fight over 3D-printing files of the 3,000-year-old artwork, it made a strange decision.

It seemed like the perfect digital heist. The Nefertiti bust, created in 1345 B.C., is the most famous work in the collection of Berlin’s Neues Museum. The museum has long prohibited visitors from taking any kinds of photographs of its biggest attraction. Nonetheless, in 2016 two trenchcoat-wearing artists managed to smuggle an entire 3D scanning rig into the room with the bust and produce a perfect digital replica, which they then shared with the world.

At least, that was their story. Shortly after their big reveal, a number of experts began to raise questions. After examining the digital file, they concluded that the quality of the scan was simply too high to have been produced by the camera-under-a-trenchcoat operation described by the artists. In fact, they concluded, the scan could only have been produced by someone with prolonged access to the Nefertiti bust itself. In other words, this wasn’t a heist. This was a leak.

One of the first experts to begin to question the story of the Nefertiti scan was the artist Cosmo Wenman. Once Wenman realized that the scan must have come from the museum itself, he set about getting his own copy and making it public. He initiated the German equivalent of a FOIA request. (The Neues Museum is state-owned.) His request kicked off a three-year legal odyssey.

The museum never quite clarified its relation to the scans. But earlier this week, Wenman released the files he received from the museum online for anyone to download. The 3D digital version is a perfect replica of the original 3,000-year-old bust, with one exception. The Neues Museum etched a copyright license into the bottom of the bust itself, claiming the authority to restrict how people might use the file. The museum was trying to pretend that it owned a copyright in the scan of a 3,000-year-old sculpture created 3,000 miles away.

The Neues Museum chose to use a Creative Commons Attribution, NonCommercial, Share-Alike license. If the museum actually owned a copyright here, the license would give you permission to use the file under three conditions: that you gave the museum attribution, did not use it for commercial purposes, and allowed other people to make use of your version. Failing to comply with those requirements would mean that you would be infringing on the museum’s copyright.

But those rules only matter if the institution imposing them actually has an enforceable copyright. If the file being licensed is not protected by copyright, nothing happens if you violate the license. If there is not a copyright protecting the scan, then you don’t need permission from a “rights holder” to use it. Because that rights holder does not exist. It would be like me standing in front of the Washington Monument and charging tourists a license fee to take its picture.

As I wrote at the time of the original story, there is no reason to think that an accurate scan of a physical object in the public domain is protected by copyright in the United States. (More about this idea in this white paper.) Without an underlying copyright in the scan, the Neues Museum has no legal ability to impose restrictions on how people use it through a copyright license.

While the copyright status of 3D scans of public domain works is currently more complex in the EU, Article 14 of the recently passed Copyright Directive is explicitly designed to clarify that digital versions of public domain works cannot be protected by copyright. Once implemented, that rule would mean that the Neues Museum does not have the ability to use a copyright license to prevent commercial uses of the scan in the EU. Now, licenses can signal intent to users even if they are not enforceable. In this case, it appears that the Neues Museum is attempting to signal that it would prefer people not use the scan for commercial purposes. While that is a fine preference to express in theory, I worry about it in this specific context. There are plenty of other ways for the Neues Museum to express this preference. When a large, well-lawyered institution carves legally meaningless lawyer language into the bottom of the scan of a 3,000-year-old bust to suggest that some uses are illegitimate, it is getting dangerously close to committing copy fraud—that is, falsely claiming that you have a copyright control over a work that is in fact in the public domain. The Neues Museum could easily write a blog post making its preferences clear without pretending to have a legal right to enforce those preferences. In light of that, this feels less like an intent to signal preferences than an attempt to scare away legitimate uses with legal language.

The scary language has real-world consequences. These 3D scans could be used by people who want to 3D-print a replica for a classroom, integrate the 3D model into an art piece, or allow people to hold the piece in a virtual reality world. While some of these users may have lawyers to help them understand what the museum’s claims really mean, the majority will see the legal language as a giant “keep out” sign and simply move on to something else.

The most important part is that adding these restrictions runs counter to the entire mission of museums. Museums do not hold our shared cultural heritage so that they can become gatekeepers. They hold our shared cultural heritage as stewards in order to make sure we have access to our collective history. Etching scary legal words in the bottom of a work in your collection in the hopes of scaring people away from engaging with it is the opposite of that.

This post originally appeared on the Engelberg Center blog.

The Engelberg Center on Innovation Law & Policy is pleased to announce the publication of a new whitepaper: Data Portability and Platform Competition: Is User Data Exported From Facebook Actually Useful to Competitors?. The paper explores how useful data exported from Facebook might be to a potential competitor. The answer: not very.

The paper, authored by Gabriel Nicholas and Michael Weinberg, focuses on a seeming paradox in the current debate around the size and power of platforms such as Facebook, Google, and Amazon.

For those wary of breaking up these large platforms, data portability has emerged as an attractive alternative. Data portability would allow users to take their data from a large platform to a competitor, potentially making it easier for a competitor to grow and thrive.

The challenge with this hypothesis is that large platforms have allowed users to export their data for almost a decade, yet no major competitor has emerged. Why is that?

In order to find out, the authors leveraged the Engelberg Center’s access to New York City’s tech community. They exported data from Facebook and held a series of workshops with engineers, product managers, and executives from a wide range of technology companies. They asked participants how useful data exported from Facebook would be in building a competitor, and in doing so, learned about some of the limitations of data portability.

The paper documents the weaknesses in data portability as a tool for competition in the context of social media sites, and provides lessons for policymakers interested in integrating data portability into a large set of solutions.

You can read the entire paper here.

This post originally appeared on the Engelberg Center blog.

Today we are thrilled to be launching the Engelberg Center’s Innovation Colloquium Podcast. This is the Engelberg Center’s first podcast, and it is designed to bring you inside one of our most interesting programs of the year. You can subscribe on itunes, spotify, other other services. You can listen to the first episode in your browser below.

Each spring the Engelberg Center hosts the Innovation Policy Colloquium. The Colloquium is a semester-long program to bring in speakers built around a theme related to promoting creativity, invention, and new technology. Speakers present cutting edge, often still-in-development work and enter into a lively question and answer session with participants.

While this is a fantastic event for the current NYU Law community, it is not easy to access from further away. The podcast is an opportunity to make the Colloquium available to everyone.

In addition to their presentation at the Colloquium, as part of the Colloquium each speaker also sat down for an interview to discuss their work. Reflecting the nature of the Colloquium, these interviews touched on a wide range of topics, including celebrities trademarking their own names, how geographical indications will respond to climate change, how privacy regulation and innovation can coexist, and labeling traditional knowledge.

For the next ten weeks we will release a new episode every Wednesday featuring an interview with a Colloquium participant. As an introduction to the series, the first episode is a conversation with Professors Barton Beebe and Jeanne Fromer who oversaw this year’s Colloquium.

You can find links to subscribe to the podcast in the player above. We hope you enjoy listening as much as we enjoyed putting it together.

You should go to the website legalmadness.party right now to check this out.

Here’s the deal. Sarah Feingold (former Etsy and Vroom GC, current Engelberg Center Fellow) and I were talking about all of the stories that in-house tech lawyers have about the things they have dealt with over the years.

“We should have an open mic night where everyone gets up and shares their stories” we exclaimed together.

“But wait, confidentiality rules would prevent any lawyers from actually telling stories at an open mic night” we also exclaimed together.

“What shall be done?” we wondered aloud, again, together.

What shall be done, indeed.

We collected the stories anonymously. We compiled them into a script. We hired actors to play the role of “tech lawyer at an open mic night” to tell them. We rented out a cool club in the Village. All that is missing is you.

Join the NYC legal tech community for the greatest simulated open mic night is has ever seen. Laugh. Cry. Commiserate. Share a story (anonymously) for next year….

legalmadness.party for tickets and info

Lego recently sent a series of takedowns to websites that host 3D printable models, including MyMiniFactory.* It looks like some of Lego’s claims are legitimate, while others appear to be less so. Taken together, the claims highlight the complicated ways in which IP attaches to 3D printable models, and the ways in which various legal ambiguities can allow a large company like Lego to try and control behavior that is probably not legally within its right to control.

The Notice

The notice link received by MyMiniFactory is interesting in and of itself. While many people refer to these types of notices as “DMCA” notices (after the Digital Millennium Copyright Act), this notice actually combines both copyright and trademark claims (this is going to become relevant later).

Dear myminifactory.com: LEGO A/S, LEGO Juris A/S and LEGO System A/S (collectively but not exclusively “the LEGO Group”) hold exclusive worldwide rights to the LEGO® intellectual property, including but not limited to the famous LEGO word mark, the famous red-square LEGO logo and the Minifigure figurine. These trademarks and copyrights, registered and/or protected under US and international trademark and copyright law, are used to identify, advertise and promote products and activities developed and/or held by the LEGO Group of companies. In addition, LEGO holds exclusive Copyright and Trademark rights to the world-famous LEGO® Minifigure figurine design. The LEGO Minifigure design is protected by United States Copyright registrations VA655104, VA655230. The LEGO Minifigure design, since the first launch in 1978, is protected by copyright laws and enforceable internationally through application of the Berne Convention. I, the undersigned, state UNDER PENALTY OF PERJURY that: 1. I am an agent authorized to act on behalf of the LEGO Group, of certain intellectual property rights; 2. I have a good faith belief that the URLs identified below offer items or contain materials that are not authorized by the the LEGO Group, its agent, or the law, and therefore infringe the IP Owner’s rights; and 3. The information in this notice is accurate. Please act expeditiously to remove the listings identified below:

I understand that the notice then goes on to list a number of models, but does not make an attempt to match the individual models with any specific accusation of infringement. That leaves it up to the platform and the user to guess which rights Lego believes any individual model might infringe upon. That ambiguity makes it hard for an accused user to evaluate the claim against them.

Differences Between the Type of Right Allegedly Infringed Matters

This kind of ‘we have lots of rights so take it all down’ approach to takedown notices does a disservice to both creators and platforms. From the perspective of a platform potential liability for infringement, it makes a huge difference if the model is being targeted because of claimed copyright infringement or claimed trademark infringement.

If the claim is based in copyright, the platform is generally immune from liability because of the safe harbors created in the DMCA (the DMCA is a US law but EU law - at least as of now - currently provides the same types of protections). The DMCA also creates a system where the user can challenge the takedown without needing the platform’s permission.

If the claim is based in trademark, the platform’s liability is less clear. At a minimum, there is unlikely to be a way for an accused user to challenge the takedown request without the agreement of the platform. Since it may not be worth the platform’s time to even analyze the accusation (let alone push back on it), and a platform is unlikely to allow a user to push back if the platform itself could be held liable for infringement, in practice that makes it much easier for a rightsholder to bluff their way into having something taken down for an alleged trademark infringement than for an alleged copyright infringement. The combined nature of the notice enhances this power, as it is not clear from the notice itself which models are being accused of infringing what kinds of rights. A conservative platform doing a cursory review of the letter would assume that all of the models are being accused of trademark infringement and take them down without asking too many questions.

By combining all of these issues into an omni-notice, Lego has made it much more costly for the platform to evaluate its validity, and making it much easier (at least in the short term) to just take everything down without giving accused users a way to fight back.

Might those users want to fight back even if they could? Let’s take a deeper look at how copyright and trademark law might connect to the models.

Copyright

Although the language is not particularly clear, the only copyright that Lego claims is in the Minifig design. This makes sense, because the lego blocks themselves were patented (patents and copyrights are generally mutually exclusive, so if something is patented it is not eligible for copyright protection (there are a thousand lawyerly qualifications I could add here, so see disclaimer below)) and that patent expired some time ago.

That means it is not copyright infringement to make lego blocks, or models that are compatible with lego blocks. It might be copyright infringement to reproduce a full minifig. It is probably not copyright infringement to create an accessory for a minifig and then take a picture of that accessory with the minifig itself.

The upshot of this is that Lego’s copyright claims are probably fairly narrow, clustered around models that replicate minifigs. Anything beyond that is unlikely to be a copyright issue. That means that Lego is probably leaning fairly heavily on its trademark claims.

Trademark

Lego’s letter specifically references ownership of trademarks in the world “LEGO,” the stylized representation of “Lego” in a red box, and in the minifig (unlike patents and copyrights, trademarks and copyrights are not necessarily mutually exclusive). It is important to remember that trademarks are all about showing who is responsible for goods. That means that merely copying or using a trademark does not mean you are infringing on it.

Instead, trademark infringement is all about causing confusion in users. If you are using the Lego trademarks to make it appear that your models are coming from the Lego company you are likely infringing on Lego’s trademarks. In contrast, if you are merely using Lego’s trademarks to show that your model is compatible with Lego, you are unlikely to be infringing on that trademark (here is a longer explainer on how all of this works).

It seems that many of the targeted users are not trying to pass their goods off as official Lego goods. Instead, they are using the term “Lego” to indicate that their model is compatible with Lego-style connectors. One could argue about ways to make that more clear - say by using a term like “Compatible with Lego” or “Lego-Compatible” - but it seems unlikely that a consumer looking at at least some of these models would be confused as to their source or origin.

These Models Are Unlikely to Compete with Lego

That is all the more true because the reality of the situation is that almost no one would buy a 3D printed lego-style block if an injection molded one existed. Lego is really good at making lego bricks. In a head-to-head matchup, a lego-produced brick is going to be cheaper and better than a 3D printed one by almost any metric.

The only reason to turn to 3D printing is to create a lego-compatible object that does not already exist. If you need something custom or specific that Lego does not make, 3D printing is probably your only option. And if you need a custom lego-compatible block, that is probably because you already have many, many official Lego blocks. You are probably already a Lego superfan.

That means that the 3D printed Lego-compatible market is almost purely complimentary to the official market. Lego’s fair play guidance is interesting and helpful, but it does not define Lego’s legal rights. Complying with the guidance may help you avoid a nastygram from Lego. Stepping outside of its bounds does not mean that Lego has a legal right to stop you.

That makes MyMiniFactory’s response kind of a fun one. After inviting Lego to collaborate with the community instead of attacking it, they announced a “OGEL” competition to redesign the building blocks. Submissions close on November 14th and the winner gets a brand new 3D printer.

*As with everything posted on this site, nothing in this post should be construed as legal advice. If you have been targeted by a takedown notice that you believe to be illegitimate you should contact a lawyer who can be your lawyer. Unless I am sending you a bill I am not your lawyer.