This may be one of our last blog posts about Star Athletica v. Varsity Brands, the cheerleader uniform case we’ve been writing about since last year. As you may recall, while nominally about copyright and cheerleader uniforms, the case is really about how copyright protects objects that combine decorative elements and by contrast, does not protect functional elements.
Since so many 3D printed objects combine both decorative and functional elements, this is an important question for the 3D printing community. Conversations about licensing 3D printed objects cannot happen until everyone understands the types of rights that actually protect those objects. Right now there are at least ten different tests geared towards figuring out if and how copyright might protect an object that is both functional and decorative. Unfortunately, this situation has not yet proven to be helpful.
In the next few months the Court will schedule oral arguments in the case. After that – probably next year – an opinion will be declared.
We will be sure to keep you posted as events unfold. In the meantime, you can read the brief here. In addition to the substance, you should take a moment to appreciate the font that Charles designed exclusively for Supreme Court briefs – exceedingly rare among lawyers – to master the inclusion of imagery in legal briefs.
One of the things that makes open source hardware licenses hard is that – unlike software – it isn’t always easy to determine what parts of a product (if any) are covered by copyright. Since traditional open source licenses rely on copyright to make them enforceable, understanding how copyright applies to a piece of open source hardware is the first step in deciding how you might want to license it.
Finding copyright can be complicated because it protects creative and decorative works (including code), but not functional items. Pieces of open source hardware often combine both creative and functional elements. This makes it critical to understand how to break out the copyright-protectable parts from the non-copyright-protectable ones.
Unfortunately, today in the United States there are at least ten different and somewhat contradictory tests to guide that process. That makes it hard for copyright experts to draw the line between copyrightable and non-copyrightable, and essentially impossible for everyone else.
That’s why OSHWA joined the International Costumbers Guild, Shapeways, Formlabs, Printrbot, the Organization for Transformative Works, the American Library Association, The Association of Research Libraries, and the Association of College and Research Libraries on a brief written by Public Knowledge in the Supreme Court case Star Athletica v. Varsity Brands. While the case is nominally about cheerleader uniforms (really), it boils down to a simple question: which test should be used to separate out the copyrightable and non-copyrightable elements of an object that includes both?
The brief does not advocate for a specific test. Instead, it simply urges the Supreme Court to pick a simple, easy to understand test. That clarity alone would be a huge benefit to the entire open source hardware community.
Although we are filing the brief now, the Court’s decision probably won’t be until next year. Once it comes out, we’ll do our best to explain what it means for the entire open source hardware community.
Shapeways has long been a supporter of Net Neutrality, so we were happy to be able to join a letter from the European startup community in favor of strong open internet rules in the EU.
Shapeways started in the Netherlands and has continuously relied on a neutral Internet to reach our customers. To the same extent, the Shapeways community uses the open internet to connect with other members and customers around the world.
Fundamentally, our letter asks the EU not to weaken net neutrality rules with loopholes. Regardless of whether they are called ”specialised services,” “data cap exceptions,” or “class-based traffic management,” loopholes that allow ISPs to pick winners and losers undermine the core ideas of net neutrality.
All of this and more is why we join the call for strong net neutrality rules in the EU. We will be sure to let you know what happens as this process develops.
Last month Creative Commons hosted a meeting with members of the 3D printing community to discuss how Creative Commons licenses can continue to work well with 3D printed products and files. Shapeways was thrilled to be included in the initial meeting and our hope is that this acts as a catalyst for a more impactful collaboration between 3D printing and Creative Commons.
The purpose of the initial meeting was for the community to gain a better understanding of how the Creative Commons licenses work with 3D printing today as well as identifying key areas for improvement moving forward. We have raised some questions about the dynamic between Creative Commons and 3D printing in the past, and part of the initial meeting was to revisit these topics with other groups.
While this was the first major Creative Commons and 3D printing meeting, we expect that it will not be the last. The discussion was wide ranging and freewheeling, and it is probably safe to say that there are a number of opportunities for collaboration going forward. This is an especially opportune time to begin the collaboration as Creative Commons is in the initial phase of a 5 year plan to reinforce and grow the Commons.
We will continue to discuss the collaboration as it evolves and the initial meeting was successful in helping us to flag a few key areas for focus. Through discussion, attendees were able to confirm the areas of concern that were generalizable beyond one or two parties. You can read Creative Commons’ debrief here. Two of those areas, a micro and a macro, deserve mention here.
Micro-Challenge: Attribution
The question of attribution presents a specific challenge in the context of 3D printing. It is a “micro” challenge in the sense that it is highly specific, but its impact can be widespread.
This question actually breaks down into two parts: attribution in the file and attribution in the object.
The file attribution part may be the most straightforward. There are a number of new 3D printing file formats which are currently under development. Many of these formats include the ability to attach specific license information to files. With this capability, giving attribution may be as simple as adding (and maintaining) the correct metadata in a file. While there are a number of implementation challenges, file metadata does at least appear to be the place to focus on for file attribution. Building visibility for this feature among developers of new file formats goes a long way towards solving this problem.
Attribution in the object is less straightforward. Some 3D printed objects integrate the designer’s name directly into their surface, making attribution automatic. However, those cases are the minority. For other objects, what is the best way to give attribution? Thingiverse provides physical attribution tags, which can be great for displaying objects at trade shows or at galleries. However, they may not work in other contexts. For example, it is probably unrealistic to expect people to hang physical attribution tags from 3D printed bracelets or earrings. Developing a system on how to handle these types of situations will take time and collaboration.
Macro-Challenge: Applicability of Copyright-Based Licenses
You can expect to hear a lot more about this issue going forward. This concern is larger than 3D printing, although for various reasons 3D printing is an area that tends to throw it into stark relief. Briefly, Creative Commons licenses are based in copyright. However, unlike the photos, movies, songs, and stories that formed the original core of the Creative Commons, not all 3D printed objects are eligible for copyright protection (this paper takes a deeper dive into why that is and what it means). For those objects, the terms of the Creative Commons license are not enforceable.
The implications of this incompatibility are potentially far reaching, and the initial meeting was not the time to describe them all as other topics took precedent. Even explaining the problem can be complicated, and one thing that we will be working on going forward are more and better ways to communicate this challenge to the community.
Keep an eye out for more to come soon. For now, we are excited to be developing a community of stakeholders who will drive the collaboration with Creative Commons to bring you the most valuable information. We will continue to keep you up to date on these efforts and plan to invite community participation as these efforts expand. Until then, please comment with any questions or concerns.
Imagine you are selling a porcelain coffee cup in your Shapeways shop. It is a complicated piece with a complex handle and an intricate design on the outside of the cup. The lip of the cup is also funkily askew. After the cup has been selling for a few weeks, you get a letter informing you that – unbeknownst to you – the lip of your cup may infringe on someone else’s design patent. If the letter is correct, what kind of damages should you have to pay to the person who owns that patent? Should you have to pay them all of the profits you have made on the cup, or just the percentage of the profits that can be attributed to the lip covered by the patent? Shapeways, along with Engine, just filed a brief with the U.S. Supreme Court urging them to get this rule right for 3D printing designers.
The U.S. Supreme Court is trying to decide which rule to apply in the context of a long running dispute between Apple and Samsung over smart phones. Apple had a handful of design patents on elements of the iPhone such as its shape and icons, and accused Samsung of infringing on those patents. Apple won the dispute, which meant that the court had to decide what damages Samsung should pay.
In regular utility patent infringement cases, infringement damages are generally tied to the value that the part of the object covered by the patent brings to the entire object. So if, for example, a car company infringes on a patent for a bolt that holds the tire onto the car, the damages are proportional to the relative importance of that bolt to the entire car. In other words, the fact that part of a car infringes on a patent does not mean that the patent holder gets all of the profit generated by the entire car.
However, a lower court interpreted the rules differently for design patents. There are many elements of a Samsung phone that make it valuable for a purchaser that are totally unrelated to its rounded edges (for example, its ability to make and receive phone calls). However, the court decided that because the Samsung phone incorporated elements that infringed on Apple’s design patents Samsung should have to give Apple all of the profits from the phone. The U.S. Supreme Court is now trying to decide if that rule makes any sense.
What Does This Have to do with 3D Printing?
Although Shapeways designers do not sell smart phones in their shops (at least not yet….), they do offer many objects that could potentially be covered by a design patent. That means that they could potentially be infringing on design patents – even on design patents they do not realize exist. If and when that happens, it is important that the remedies for infringement are proportional to the value that the elements protected by patent bring to the final object.
In our brief, which was primarily drafted by Katherine McNutt and Hyosang (Mark) Kim of the Juelsgaard Intellectual Property and Innovation Clinic at Stanford University Law School, we argue that design patents should use the same sort of proportional damage system as the utility patent system. Just as someone who owns a patent in a bolt should not be able to recover the profits for an entire car, someone who owns a patent in a lip should not recover the profits for the entire cup.
Fundamentally, this sort of proportionality is the just result in disputes over complex objects that include many elements unrelated to a single design patent. It also avoids problems where the first patent holder who sues recovers all of the profits, leaving any additional patent holders with limited options for recovery.
It also helps disincentive the creation of design patent trolls. If a patent holder can lay claim on a designer’s entire profits simply because they own a design patent that may cover a small element of an object, the value of a design patent infringement claim increases exponentially. The prospect of recoveries well beyond the value of the patent’s contribution to the final object could encourage the same sort of patent troll behavior that we have seen in traditional patents.
Although the brief was filed this week, it will be some time until the Supreme Court makes a decision in this case. When they do, we’ll be sure to update you on the case and try to explain what the decision means for our designers.
