Update 7/14/19: the chapter itself is now available here.

Occasionally I find myself in the highly fortunate position to be asked to contribute to a scholarly publication without having any professional incentive to do so. This is exciting because I’m as flattered as anyone when someone else is interested enough in what I’m doing to want to publish it. It also gives me a chance to come into contact with the kinds of contracts that academic publishers offer their contributors. To put it mildly, these contracts are insane. In exchange for an unpaid contribution, the contracts expect the authors to give the publishers all sorts of exclusive rights and to indemnify the authors against any sort of infringement lawsuit.

Fortunately for me, and unlike so many people who are confronted with these types of contracts, I have no professional incentive to publish in academic journals (at least as of now). That makes me free to push back against the contract terms. The worst thing that happens is that the publisher decides I’m more trouble than I’m worth - it isn’t going to knock me off tenure track or anything.

This situation first came up in 2016 with a contract from the academic publisher Kluwer. At the time, in what I hoped was a service to others who were confronted with these contracts without the ability to walk away, I published the edited version of the agreement that Kluwer agreed to.

Today I’m in a position to do the same thing with an Elsevier. I have XXXXXX’d out the specific terms of the work and the editors because I don’t think it is relevant. I hope that this information will help other authors avoid the most ridiculous terms of the agreement.

Thank you for agreeing to contribute to XXXXXXX (the “Work”) edited by XXXXXXXX (the “Editor”). This Agreement between you (the “Contributor”) and Elsevier Inc. (the “Publisher”) regarding your contribution (the “Contribution”) outlines the Contributor’s and the Publisher’s respective obligations and rights.

A. The Contributor agrees that the Contribution will be the agreed-upon length, will contain the content and substance, as instructed by the Editor, and will be submitted in the form and manner and by the date as agreed upon. If requested, the Contributor also agrees to review proofs of the Contribution in the designated time period, making any necessary revisions and answering queries, to help ensure the accurate publication of the Contribution. The Contributor will keep one complete copy of the Contribution to ward against loss.

The Contributor shall also deliver with the manuscript the relevant illustrations (meaning photographs, multimedia content (if any), drawings, sketches, diagrams, charts, maps, tabular matter and any other accompanying material), along with captions for all such illustrations and the Contributor shall obtain the rights to use such Illustrations in the Contribution.

The Contributor shall also deliver with the manuscript an abstract of approximately 100-150 words of the Contribution to the Work, and a list of approximately 5 - 10 keywords of the Contribution to the Work all of which shall for purposes of this Agreement be included in the Contribution.

B. It is understood and agreed that the copyright in the Contribution is owned by Michael Weinberg. To facilitate publication of the Contribution, the Contributor grant to the Publisher, the non-exclusive license to publish, distribute and otherwise exploit the Contribution throughout the world. Such license includes without limitation the right to produce, reproduce, transmit, sell, license and otherwise distribute the Contribution in all media now known or hereinafter devised to create or have created any revision thereof, to make derivative works, abridgements or translations, and to license and authorize others to do so, and all subsidiary and translation rights. The Contributor agree not to publish or permit publication of the complete or substantially complete Contribution in a competing work for 3 years from the publication of the work. The following copyright notice shall be used in the contribution: “Copyright © 20__ Michael Weinberg. Published by Elsevier Inc. All rights reserved.”

C. The Publisher will provide each contributor with one (1) free print copy of the Work. Each Contributor may purchase additional copies of the Work, and other books published by the Publisher in print form (excluding the Publisher’s Major Reference Works program) directly from the Publisher at a discount of thirty percent (30%), all for personal use and not for resale.

D. The Contributor confirms that the Contribution is original to the Contributor, has not been previously published (except for the materials already published in previous editions of the Work and third-party material that is either in the public domain or for which appropriate permission has been obtained), and the Contributor has the right to grant to the Publisher the rights described above; the Contributor confirms that the Contribution does not contain any material that infringes any third party rights or is harmful to the user. The Contributor also confirms that to the best of the Contributor’s knowledge the Contribution contains no libelous, unlawful or otherwise actionable matter. Further, the Contributor also confirms that the Contributor is familiar with all applicable conflicts of interest and outside compensation laws and regulations as well as policies and rules of the Contributor’s employer or institution (if applicable), and that the Contributor’s acceptance of this appointment (including the acceptance of any complimentary copies of the Work), and the terms of this Agreement and the Contributor’s performance under this Agreement is and will be in compliance with those laws, regulations, policies and rules. If the Contributor and/or any of the co-contributors reside in Iran, Cuba, Sudan, Burma, Syria, or Crimea, the Contribution has been prepared in a personal, academic or research capacity and not as an official representative or otherwise on behalf of the relevant government.

E. Should any materials in the Contribution be the work of others, said materials must be properly credited, and the Contributor agrees to obtain any necessary grant of permission for use of the others’ materials, as well as any medical patient consents and releases.

F. The Contributor represents and warrants that he/she has disclosed in writing to the Publisher all actual and potential competing interests, both financial and non-financial, if any in relation to the Contribution. (Examples of financial conflicts include employment, consultancies, stock ownership, honoraria, paid expert testimony, grants, patents or patent applications, and travel grants. Competing interests may also arise as a result of personal relationships, academic competition, and intellectual beliefs, such as political or religious beliefs.)

G. The Contributor authorizes use by the Publisher and its applicable affiliates, licensees and service providers worldwide of the Contributor’s name, image, likeness, voice, biography, and professional affiliations (at the Publisher’s discretion) for purposes of advertising, promoting and publicizing the Work and all updates and derivatives thereof and the Contributor’s contact details, including postal and email addresses, for purposes of communicating with the Contributor about the Work and writing, reviewing, researching or contributing to other relevant projects with the Publisher.

H. If the Publisher decides not to proceed with publication of the Contribution, the Publisher will revert all rights to the Contributor. The Publisher reserves the right to revise the Contribution if required to render it suitable for publication, including the substitution of borrowed material.

Yesterday was my last full time day at Shapeways. After over three and a half years, today I start as the new Executive Director of the Engelberg Center on Innovation Law and Policy at NYU Law.

I have had a fantastic experience at Shapeways, doing too many fun things with too many interesting people to count. We managed to set the standard for how 3D printing platforms should handle IP issues in a transparent way that allowed the community (and other interested parties) to understand what we were doing. We took the same approach to our broader content policy, wrestling with the challenges of operating a platform where people can make just about anything. We also partnered with Valve and the National Gallery of Denmark on innovative ways to show what can happen when rightsholders, cultural institutions, creators, and platforms work together. In addition, the new Design with Shapeways service is a huge step forward for making 3D printing accessible to as many people as possible. And all of that is, to slide into cliche, just the tip of the iceberg.

It would be impossible and foolish to try and name all of the people who have become such amazing colleagues and friends over the past few years, so I won’t even begin to try. However, I do want to give special thanks to three people for getting me to Shapeways in the first place. Natalia Krasnodebska and Duann Scott were my advocates on the inside, pushing to get me hired. Pete Weijmarshausen took a chance and decided to overlook the fact that I had no experience actually working as an in-house lawyer when he hired me. I am deeply grateful to all three of you.

While Shapeways has been an experience for which I will forever be grateful, I am very excited to start doing some new things at Engelberg. Engelberg’s faculty is truly top notch (seriously) and it is a hub for some of the best thinking about innovation law and policy in the country. We already have some fun stuff in the works, so keep your eyes on this space.

Late last week the United States Copyright Office and the Librarian of Congress handed a significant victory to 3D printer users who want to use 3D printing materials of their choice. The Copyright Office and Librarian published a rule that made it clear that using materials from a someone besides the company that manufactures the 3D printer does not violate copyright law. This is a win for anyone who wants to experiment with 3D printers, and for the concept of limitations to the scope of copyright law more generally.

The rule – technically an exception to the prohibition on circumventing technical protection measures established in 17 USC 1201 (a) – will be in effect for the next three years (I’ll refer to the thing that was published interchangeably as a rule and exception in this post). In three years the Copyright Office will review all of the exceptions granted during this round to determine if they should be renewed, modified, or eliminated. That means that you should please let me know if you make use of this exception, because we’ll have to do all of this again in three years.

Background

In 2015, the Copyright Office and Librarian of Congress granted the first exception for people who want to unlock 3D printers. Unfortunately, the specific language they used included qualifiers that arguably undermined the entire rule.

This time around, I attempted to do two things. The first was to renew the 2015 exemption in order to lock the 2015 decision in place. The second was to try and eliminate the qualifying language in order to remove the ambiguity around the 2015 decision.

There was not any opposition to the renewal request, so the Copyright Office suggested renewing it late last year.

The 3D printing company Stratasys opposed the elimination of the qualifying language. As a result the Copyright Office held a hearing on the issue over the summer (summary and video excerpts here) to further explore the issue.

That hearing, along with comments filed in that proceeding, formed the basis for the Copyright Office’s recommendation, which the Librarian of Congress adopted last week. While this decision is technically the Librarian’s to make, in practice the Register of Copyrights and the Copyright Office more broadly do most of the operation lifting and analysis. As a result, I tend to refer to these decisions as decisions by the Copyright Office in blog posts.

The Decision

The decision is made up of the formal rule by the Librarian of Congress and the recommendation by the Copyright Office that goes into more detail about the review process and the analysis.

The Copyright Office relied on its 2015 analysis to conclude that, to the extent that it violated copyright law at all, any attempt to circumvent a technical protection measure for the purpose of using third party materials in a 3D printer would be protected by fair use.

It is worth noting here that I believe that there is a fairly strong argument to be made that circumventing digital locks in order to use third party materials in 3D printers does not violate copyright law at all. However, to the extent that it might facially violate copyright law, the Copyright Office’s analysis is helpful because it makes it clear that the Copyright Office believes that doing so would be protected by fair use. For fair use fans, this portion of the Copyright Office’s analysis also includes a helpful reminder that doing something for a commercial purpose does not automatically bring it outside the scope of fair use.

The Copyright Office also concluded that there is no stand alone market for printer operation software. Recall that the copyright-protected work at issue in this proceeding is the software to run the printers. If there is no independent market for that software, then protecting it from infringement is less of a concern.

The Copyright Office also concluded that 3D printers are not a secure distribution platform for other copyright-protected works. If 3D printers were secure distribution platforms for copyright-protected works, then allowing people to mess with the software running the printers might arguably expose all of those works to infringement (that’s the hypothetical argument – repeating it here is not an endorsement of it). At this point 3D printers are in no way designed to be a secure distribution platform, so that argument is moot.

Keeping Other Issues Out

As you may recall, the qualifying language that the Copyright Office added to the exception in 2015 was nominally driven by concerns about things like airline and medical safety. A big part of the argument for eliminating that qualifying language was that copyright is not designed to regulate airline and medical safety. That meant that the qualifying language was introducing harmful ambiguity to legitimate users for no discernible benefit. Eliminating the qualifying language would allow the Copyright Office to focus its rules on copyright issues and leave other issues to other expert agencies.

This time around the Copyright Office agreed. It acknowledged that it tries to limit its analysis in this proceeding to copyright-related issues. The Copyright Office also noted that there was no evidence that its qualifying language was having an impact on health and safety, while simultaneously noting that the Federal Aviation Administration and Food and Drug Administration had both opened their own proceedings on how to consider 3D printing within the context of the issues that they focused on.

In light of this, the qualifying language was introducing harmful ambiguity for legitimate users without bringing any sort of corresponding benefit.

The Final Exception

The rule is structured as an exception from the general prohibition against breaking digital locks to access copyright-protected work. While doing so is generally prohibited, people in the US are now allowed to break digital locks on:

“Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files, or proprietary data.”

As far as I can tell, this rule eliminates the ambiguity from the 2015 rule. The “microchip-reliant technological measures” qualifier might seem unnecessary at first glance. In fact, it may be unnecessary at second, third, and fourth glance as well. However, I believe it is there because in both 2015 and 2018 all of the examples of digital locks forcing people to use manufacture-provided materials in 3D printers provided to the Copyright Office were microchip-reliant in at least some way. As a result, the record pushed the Copyright Office to include that small qualifier. If anyone has any examples that do not rely on microchips please let me know. Since we need to do this again in three years I will be happy to introduce them into the record.

Why Do This?

Now that this round of the process is over, it is worth pausing to consider why it is worth doing this at all. I can think of at least two reasons.

First, it is ridiculous that copyright law can at least arguably be read to prevent people from using a material of their choice in a general purpose manufacturing machine. That is far from the purpose of copyright law. To the extent that copyright-related concerns prevent people from doing so, this process can remove those concerns. Eliminating legal ambiguity can be especially valuable for encouraging groups of people or companies to devote significant time and resources to innovating in 3D printing materials. Hopefully it means that over the long term we see more interesting materials for 3D printing.

The second reason is a broader point about copyright law. Like any law, copyright law focuses on a specific set of behaviors and actions. No matter one’s opinion about copyright law itself, it should be fairly uncontroversial to believe that attempts to apply copyright law beyond those types of behaviors will distort the law and likely result in unjust outcomes. This proceeding is an opportunity to reaffirm a limit to copyright law. Over time, clear limits to copyright law (as with any law) should allow it to operate more effectively in light of its intended purpose.

The publication of the rule means that the 2018 review is in the books. The next round should start at some point in 2020 so that it can be completed in 2021. Hopefully I’ll be participating then, so if you have thoughts or experiences with any of this please reach out and let me know.

This post originally appeared on the OSHWA blog.

Today at the Open Hardware Summit OSHWA launched version 2.0 of the open source hardware certification program. We have a new website, a new directory, and lots of new resources for learning about open source hardware. You should really check it out.

We announced our intention to create this new version of the certification back in March. Since then we have been working in consultation with the board and the community to develop a new version of the site. Version 2 of the certification site uses specific examples from the community to illustrate best practices and licensing decisions for creators of open source hardware.

Launched in 2016, the original certification program has been a success. We have certified over 200 pieces of hardware from 27 countries on 5 continents. The certification logo is making it easier to find open source hardware that meets the community definition of open source hardware and the certification process makes it easier to incorporate best practices into releasing open source hardware.

With that being said, there is always room for improvement. In addition to the community, with the support of the Alfred P. Sloan Foundation we have been working with the Technology Law and Policy Clinic at NYU Law and the design team at Objectively think through the best way to make version 2 work for everyone.

Besides overhauling the look and feel of the site (embedding google docs in wordpress pages helped us get the program up and running quickly, but that approach admittedly comes with some design limitations), OSHWA had three primary goals for the the new website:

Consolidate Information

Since its founding, OSHWA has created a series of fantastic resources such as best practices and FAQs to help the community develop open hardware. Each of these resources was developed in response to specific concerns, building up on existing resources and expanding explanations.

One side effect of that development history is that resources sometimes contained overlapping information that did not completely align. It could also be hard to know exactly where to go to find a specific answer.

The new certification site borrows from the previously-developed resources and consolidates them into a unified presentation. OSHWA has worked hard to create paths that are helpful for new members of the community just getting up to speed and existing members who want to take a deeper dive into something specific. The new site allows you to skim along the top of information related to open source hardware and then immerse yourself in information when something catches your eye.

Licensing Guidance

There is no getting around the fact that licensing open source hardware is more complicated than licensing open source software. There are multiple elements to consider (hardware, software, documentation, etc.), multiple types of intellectual property at play, and some ambiguity around what is even protectable.

For the first time, OSHWA is providing specific guidance on licensing. That guidance comes in two forms.

First, OSHWA recommends explicitly and individually licensing hardware, software, and documentation associated with a piece of certified hardware. This will bring true clarity to future users. The certification application now requires you to specify a license for each of these elements.

Second, OSHWA recommends specific licenses for each of those elements. These recommendations are not exclusive, and OSHWA is happy to consider adding additional licenses as they are developed or as the community requests. The recommended licences were chosen in an attempt to make it easy to pick a license that works for you. This process is further simplified by providing examples of existing certified hardware that use a given license. That means that users who are not sure which license to use can simply follow in the path of other hardware creators that they trust.

Searchability

The first version of the certification directory was a google spreadsheet embedded in a web page. That made it easy to get certified hardware listed online. It made it hard to actually explore the directory.

The new certification directory fundamentally redesigns the user experience. It is now easy to find hardware, search by features, and drill down into what is really available. We hope that this makes the directory a much more useful resource for the community.

Next Steps

Version 2 is the newest version of the certification process, but it does not have to be the last. Play around with it, certify something, and let us know what you think. If you have ideas for features or information, or licenses you think we missed, please let us know in the forums.

This post originally appeared on the OSHWA blog.

Today, for the first time in the history in the Open Source Hardware Certification Program, OSHWA is revoking the certification for hardware. OSHWA is revoking the certification for the MOTEDIS XYZ 3D printer, with the UID ES000001, because the documentation is no longer publicly available. We have attempted to contact Motedis with a request to re-post the documentation but they have not been responsive.

Since this is the first time OSHWA has revoked a certification, we want to explain what happened, as well as what we will do in order to help prevent this type of situation in the future.

What happened

A few weeks ago, a community member wrote in and noted that the documentation link for the XYZ was no longer live. After reaching out to the contact person listed in the certification application, we have been unable to obtain a copy of the documentation to post publicly. Without the documentation, the XYZ is no longer in compliance with the program. Therefore OSWHA revoked the certification.

What it means

Revoking the certification means that going forward the XYZ can no longer be advertised as being certified open source hardware. It does not mean that Motedis’ failure to provide documentation today makes them retroactively in violation of the certification rules. The certification requires that the documentation be available at the time of certification. It does not require the certifying party to commit to making a copy of that documentation available in perpetuity. This is a burden that is unreasonable to expect of a party applying for certification.

What now

When the Certification program was being developed, there was a debate over whether or not OSHWA should try and host a repository of all of the certified hardware. One advantage of such a centralized repository would have been to allow OSHWA itself to maintain archive copies of documentation.

However, that approach also comes with costs. Developing and maintaining a feature-complete documentation hosting solution is beyond OSHWA’s core competency. Many good solutions for developing and maintaining software and documentation already exist online. Requiring certifiers to update and maintain yet another repository of documentation in order to certify was determined to be unnecessarily burdensome. Instead, the certification directory supports links which point to the place where the developers already host and maintain their documentation.

OSHWA continues to believe that this decentralized approach is correct. Nonetheless, the first revocation of certification provides us with an opportunity to consider improvements. OSHWA has started to investigate a process that would allow us to archive a version of all documentation. This archive would not be used at the primary documentation storage location. Instead, it would only be used in the event that the original documentation was no longer available. That would allow users of hardware to access documentation even after the responsible party stops supporting it as open.

If you have thoughts about this, please let us know in the forums.