Four and a half years ago, in the wake of HBO’s decision to send a DMCA notice removing a 3D printed Game of Thrones iPhone dock from the internet, I wrote a short blog post titled HBO, Give People a Way to Buy Your 3D Printed Stuff for the Public Knowledge blog.  Today I get to write a post celebrating the fact that Valve has decided to do just that.

The first post raised a point that was not novel at the time, and has not grown any more novel since: instead of taking down fan art, rightsholders may be better served by allowing fans to spread their enthusiasm by selling their work.  Furthermore, to the extent that fan art requires a license to produce, rightsholders could be well served by granting that license in exchange for part of the proceeds from that sale and information about what types of things are popular in the community.

While the larger point was not novel, 3D printing did bring a slightly different context to its discussion.   Unlike other types of digital-only fan art that can be reproduced for free, 3D printing involves a physical thing that costs money to produce.  That means that 3D printed fan art will involve payment much more often than other types of online fan art.  As a result, rightsholders do not have to introduce monetization into an ecosystem – it is there from the beginning.  That, in turn, makes it much less disruptive to introduce the concept of royalty payments to the community.  (For what it’s worth, a similar “I expect to pay for physical goods” mindset helps guide the development of the open source hardware community and its divergence from traditional open source hardware.)

In my Shapeways welcome post, I mentioned that one of the reasons I was excited to join was Shapeways’ unique position to bring together fans, rightsholders, and 3D printing.  One of the first things I did when I started was to reach out to Heidi Tandy (who is many things, but in this context was part of the team supporting the Organization for Transformative Works).  I asked her for thoughts on creating a program that allowed fans to create new works without exposure to threats of copyright infringement while at the same time avoiding forcing licenses on new works that did not require licenses in the first place.  As would come as no surprise to anyone who has met her, Heidi was incredibly willing to take the time to walk me through my ideas and anxieties, as well as share her insights.

I hope that the structure of the Valve deal helps facilitate licensing between fans and rightsholders when that licensing is necessary, without also creating new norms requiring licenses when none are necessary.  The former is advanced by a prominent notice that the license is available with (what I hope are) human-readable terms. The latter is advanced by making it clear that creators have the right to opt out of the license, and making it easy to do so.  

Valve deserves a great deal of credit for their willingness to support both of these goals, and for their willingness to explore this more generally.  It would have been easy for Valve to refuse to explore this opportunity at all, to make the license terms complicated or secret, or to insist that it be hard or impossible to opt out of the license. They did none of these things, for which they should be commended.

This program is a big step towards finding out what it really means to allow fans to create original physical items under a formal license, instead of shutting it down or benignly neglecting it under opaque conditions.  I’m hoping that there are many more.

In August I filed a petition with the US Copyright Office asking to renew the current rule that allows owners of 3D printers to use whatever filament or material they want in their printers.  This petition, which is part of the Copyright Office’s triennial 1201 rulemaking process, was aimed at renewing the exemption granted three years ago.  Today I filed a new petition asking the Copyright Office to go further and expand its existing petition so it makes sense.

The renewal petition was important because it is probably better to have the exemption than to not have it.  However, as I wrote at the time, the current exemption is a total mess.  Specifically, while it grants printer users the right to use their own material in their printers, it limits that right in cases where the printer in question “produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful.”

Briefly, this is nonsensical because 1) many printers produce goods for personal use and for “use in commerce” (however we’re going to define that) so making a legal distinction between the two can be extremely challenging, and 2) every item used in commerce is subject to legal or regulatory oversight, so what does that additional qualifier even mean?  For the record, while we disagreed about the wisdom of granting the exemption at all, Stratasys and I agreed that adding this type of qualifier was a bad idea because it made no sense.

That’s where today’s petition comes in.  It asks the Copyright Office to grant a new exemption that is identical to the current one except without the nonsensical limitation.  Why ask for a renewal for the current exemption and then ask for a new exemption that is just an expansion of the current petition?  Because that’s how the Copyright Office told people to do it.  And it does make sense on some level.  If they reject this request to expand the exemption, at least we all have the renewal to fall back on.

What happens now?  Today (and by “today” I mean that it could be filed today and published in the reasonably near future) we get to find out if anyone is opposing the vanilla renewal petition. If no one opposes it, it should be reasonably easy to have it renewed. (Update 9/29/17: It appears that no one opposed the original petition.  In theory that means it will be automatically renewed.  We’ll see how this plays out once the Copyright Office releases information about next steps.)  

Regardless, at some point the Copyright Office will bundle all of the requests together and ask to public to comment on them.  The Notice asking for petitions didn’t include a timeline for that, so we’ll just have to wait and see. When you start seeing stories about efforts to ask you to weigh in on using videos in classrooms and jailbreaking phones, you might pause for a moment to consider the fate of 3D printers as well.

Today I, along with the Owners’ Rights Initiative, filed a petition with the US Copyright Office asking them to renew the exemption that allows people to unlock their 3D printers and use whatever material in the printers they wish.  This is a request to renew the exemption that the Copyright Office originally granted back in 2015.  You can read about that exemption here.

The original petition was motivated by the fact that some 3D printer manufacturers were locking 3D printers to material that came from the 3D printer manufacturer.  Owners and users of 3D printers that wanted to use third party material needed to circumvent the checks that the manufacturers put in place to lock the printers to the materials.

There was some ambiguity around the question of if circumventing these checks violated the same part of copyright law that makes it illegal to crack the DRM on DVDs.  That same law - often referred to as “Section 1201″ - also allows the Copyright Office to grant three year exceptions to the rule if it seems appropriate to do so.  The original petition asked the Copyright Office to declare that, to the extent that unlocking a 3D printer might incidentally violate Section 1201, it did not do so in a way that created the harm that Section 1201 was designed to prevent.

The Copyright Office granted the original exemption in 2015, although it managed to limit it in a number of nonsensical ways.  Today’s filing deadline kicks of the next round of the three year process.  It was the day that you had to petition to renew an exemption already in place.

So that’s what I did.  In September you can petition for new exemptions or to expand current exemptions.  I plan on doing that too.  In 2015 the Copyright Office limited its exemption because it had concerns about things like airline and medical safety.  These are legitimate things for one to worry about.  But they are not things that the Copyright Office knows anything about and they have nothing to do with copyright.  In September I plan to point this out to the Copyright Office and ask it to limit its consideration to the copyright impacts of the exemption. To the extent that the exemption creates problems with airline safety, medical safety, or anything else, there are plenty of agencies of the U.S. Government with the expertise to step in.

So keep your eyes here in September and throughout the process. I’ll try and keep this updated as it unfolds.

Update 8/20/17: 3DR Holdings won their case against Just 3D Print.  The decision has what I would consider to be the only actual written consideration of this matter by a court (thus far…).  That court found that there was no defamation because 1) 3DR’s post was not defamatory, and 2) even if they were defamatory, Just 3D Print failed to prove that 3DR’s actions were in any way related to any harm experienced by Just 3D Print.  The court did not need to determine if any copyright infringement actually occurred in the underlying dispute in order to reach this conclusion.  

Surprisingly enough, this is the third post in what I suppose now qualifies as the saga of Just 3D Print downloading hundreds of model files from Thingiverse and selling the prints on eBay (previous posts here and here). 

This post is occasioned by a recent defamation case brought by Just 3D Print against Stratasys in relation to Stratasys’ reporting on the saga. The purpose of this post is to explain what happened in that and related cases, as well as to review the new tweaks in the underlying copyright claims.  All of the disclaimers and facts from the earlier posts apply, especially that this is not legal advice of any kind and that I am not an expert in Pennsylvania civil procedure or defamation law.  This is just my take on a situation that I believe has an impact on how we think about the combination of 3D printing, copyright, and Creative Commons licensing.

A Short Bit of Background

The original post lays out the history so far, but let me give a quick summary of how we got here.

As you may recall, this incident began when Thingiverse user loubie raised concerns about the behavior of a company called Just 3D Print.  Loubie accused Just 3D Print of pulling around 2,000 models and associated images from Thingiverse to sell in an eBay store.  Just 3D Print was allegedly doing this without permission of the designers and, in at least some cases, in violation of the terms of various CC licenses on the models.  Just 3D Print responded with a litany of excuses and justifications (listed and discussed here) essentially claiming that its behavior did not violate US copyright law.  Various designers contacted eBay to accuse Just 3D Print of infringement and the shop was eventually removed.

That would have been the end of it, except Just 3D Print then sued three publications that covered the drama for defamation.

Just 3D Print lost one case, one case is pending (edit 8/20/17: see update above), and won one case against Stratasys.  Stratasys is a 3D printer company not a publication, but the suit was related to articles published on the Stratasys blog.

After the Stratasys win, Just 3D Print reached out to a number of outlets that had covered the original incident (“outlets” being broadly defined as it includes this blog) asking for a disclaimer on the original articles noting that the court had found that Just 3D Print had not infringed any copyrights.

This struck me as strange because, assuming the public facts available were generally correct, it appeared that Just 3D Print probably did infringe on copyrights. It also seemed strange that the parties involved would have litigated an entire copyright infringement lawsuit.

Intrigued, I decided to investigate further.  At the end of my investigations I have  come to two conclusions.  First, that Just 3D Print’s view of how copyright applies to 3D printing files and objects (and just operates generally) continues to be incorrect. Second, that it is unreasonable to claim that the court in the Stratasys case came to any conclusions regarding copyright infringement or, for that matter, defamation.

The Defamation Suits

Before we get to the suits, the Digital Media Law Project has a nice background on defamation law and on Pennsylvania defamation law specifically (the cases were brought in Pennsylvania courts).  When thinking about defamation cases, it is important to look at the actual words used by the speaker and to remember that, generally speaking, the substantial truth of those statements is a defense against those claims.  It is also worth remembering that stating opinions (as opposed to facts) is generally protected by the First Amendment, making it much less likely that they will be considered defamatory (more here).

In its complaints (against Techcrunch, Stratasys, and 3DR), Just 3D Print claimed that the articles resulted in a torrent of hate mail, wasted  hours responding to press, and a harm to Just 3D Print’s reputation (note that if these were the result of legitimate, fact-based criticism, it is highly unlikely that these harms could form the basis for a defamation claim.  In other words, it is only a problem if those harms flow from defamatory conduct).

Perhaps most impressively, Just 3D Print claimed that the defamatory articles by TechCrunch and Stratasys caused it to shut down a product line projected to generate $2,000,000 a month in gross profits within one or two years.  In its claim against 3DR Holdings (publisher of the trade publications 3Dprint.com and 3Dprintingindustry.com), this claim is restated as projected revenue of $100,000,000.00.

The claim against 3DR has not been resolved yet (edit 87/20/17: it was resolved in 3DR’s favor - see update above), so I’m going to put that aside.  If you are curious, I’ve posted some relevant documents here.

Techcrunch defeated the claim Just 3D Print brought against it.  The decision gives two reasons. First, that the statements made by Techcrunch were opinions that did not qualify as defamation.  Second, that there was a statute of limitations issue.  

The Techcrunch result is what I would have expected.  The media outlets were reporting on a public controversy involving Just 3D Print.  In most contexts, that kind of reporting would not qualify as defamation. The courts did not have to spend anytime on the facts of the underlying copyright infringement claims to reach their conclusion. The nature of the reporting itself meant that the inquiry could stop there.

The Stratasys Case

All of which made the Stratasys case so confusing.  Stratasys lost the case, but the final disposition does not include any sort of explanation of why the court found against Stratasys.  It just found for Just 3D Print.

Intriguingly, the time stamp at the top of the document suggests that the hearing started at 10:55 am and ended at 11:14 am.  Presumably a conclusion that Stratasys defamed Just 3D Print would require the court to examine the underlying copyright infringement claims and the intent of Stratasys in publishing the piece.  After all, Just 3D Print was representing this decision as a vindication against accusations of copyright infringement.  How could a court get through all of that in 19 minutes?  I’m two and a half blog posts in and I haven’t managed to get everything straight.

Fortunately, transcripts of the oral augments are available from the court.*  As is so often the case, the transcripts answer some questions and raise others.

The argument was short, so I encourage you to take a moment to read them yourself (I mean, you’ve already at least skimmed this much of an article about all of this stuff).  I think it is fair to say that they are not a model of judicial clarity or efficiency.  

The entire discussion appears to focus on two questions.  First, the relationship between the person who wrote the article posted on the Stratasys website and Stratasys itself.  Second, the necessity of Stratasys, as opposed to simply a lawyer representing Stratasys, to be present in the courtroom.

Good eye if you noticed that neither of these questions directly relate to the underlying allegation of copyright infringement or the defamatory nature of the articles about those allegations.  

Unfortunately, the court does not really even address either of these preliminary questions.  Instead, apparently frustrated by the discussion of those questions up to that point, 19 minutes in the court summarily cuts off the proceedings and enters a judgment for Just 3D Print.  No real consideration of who published the article. No real consideration of who needs to be in the courtroom.  Absolutely no consideration of infringement or defamation.

The attorney for Stratasys responds to all of this by saying “This is unbelievable” and I’m inclined to agree.  The most charitable reading may be that the court found for Just 3D Print on the procedural grounds that Stratasys failed to appear.  It does not seem reasonable to represent that the court came to a reasoned conclusion on either the defamation claims or the underlying infringement claims.

I’ve asked Stratasys if they plan to appeal this decision and will update this post if I get any additional information.  

Was There Even Infringement?

As I mentioned earlier, this post exists because Just 3D Print reached out to claim that the court had found that Stratasys had defamed them and that the court had found them innocent of copyright infringement.  For the reasons I just explained, this strikes me as at least an over reading of the decision, if not an outright mischaracterization.

More concerning to me was that, when asked for clarification, Just 3D Print continued to argue that no infringement could have occurred.  Many of the reasons they put forward were identical to the ones that surfaced during the original conflict.  I’m not in a position to know if this continued reliance on incorrect readings of copyright law is intentional or merely indicative of a lack of understanding.  In the interest of brevity (ha!), I’ll just refer to the earlier post on this issue that explains why I believe these claims are incorrect, specifically claim #3 that uploading a model to Thingiverse under a Creative Commons license somehow abandons the creator’s copyright, and claim #8 that copyright registration is required for copyright protection to exist and that infringement cannot happen absent that registration.

Just to clarify, uploading a model to Thingiverse under a Creative Commons license does not abandon your copyright interest in that model.  And you do not need to register your copyright in order to get copyright protection.  In fact, your unregistered copyright can be infringed upon.

Was There Ever an Accusation of Infringement?

There is one final argument that Just 3D Print made in the course of our discussion: that Just 3D Print had never been accused of copyright infringement, and that no copyright infringement has ever been proven.

At least parts of this claim are demonstrably false.  The Thingiverse posting that kicked this entire saga off alleged facts that would constitute infringement.  The comments on that post contains other explicit accusations of infringement.  

Furthermore, the exhibits provided to me by Just 3D Print contain over 300 allegations of infringement that were filed against the Just 3D Print eBay shop. eBay’s ”VERO” process is DMCA complaint which means that, in accordance with US copyright law, it requires allegations of infringement to be backed up by a statement under penalty of perjury that the claims are accurate.  The claims sworn to include “I have a good faith belief that the use of the material in the manner complained of above is not authorized by the Intellectual Property Owner, its agent, or the law.”  In other words, there are over 300 instances of Just 3D Print being accused of infringement.  These accusations complied with US copyright law and required the accusers to stand by their accusations under penalty of perjury.

eBay’s VERO/DMCA process allows an eBay shop owner who is accused of infringement to submit a counternotice and have the targeted listing reinstated. However, Just 3D Print did not contest a single accusation of infringement and instead allowed the listings to be removed.  It is important to point out that the failure to respond to a DMCA takedown notice does not meant that the original accusation was correct. There are many structural reasons that make it hard or intimidating to respond to a DMCA notice even if it is incorrect.  

When pressed on this failure to respond – a failure that ultimately resulted in the shutting of the eBay shop and apparently contributed to the loss of millions of dollars of revenue – Just 3D Print replied that the eBay “contact us” phone number simply connected them with a “random person that says they will pass on the info.”  Regardless, the eBay VERO/DMCA page provides explicit instructions on how to challenge an accusation of infringement with a link to the form (no phone call required):

With tens of millions of dollars allegedly on the line, it is unclear why Just 3D Print failed to challenge a single accusation of infringement via the form provided by eBay.  This is all the more confusing because Just 3D Print does not appear to have a general aversion to engaging with legal processes.

Just 3D Print’s second response to the accusations is that it does not consider any of the accusations to be valid because there is no evidence that the individuals reporting infringement had registered their copyright prior to making the accusation.  As noted above, this is not a requirement for copyright infringement.  Furthermore, if this was Just 3D Print’s position, it could have been communicated to eBay and its accusers via the eBay process.

None of this constitutes a judicially arrived-at decision that Just 3D Print infringed on any copyrights.  But, at a minimum, it certainly constitutes allegations of infringement in my book.

Why Does This Matter?

Is this post anything more than responding to someone being wrong on the internet?  

I hope so.  As I’ve noted in the earlier posts regarding the dispute, we are still in a formative time in the context of 3D printing, copyright, and Creative Commons licensing.  While there is some ambiguity, there isn’t total ambiguity.  Throwing settled areas of copyright law into question does not help work towards a solution for the complicated stuff.  When there are legitimate disagreements about the intersection of 3D printing, copyright, and Creative Commons licenses, they are important to explore.  But if someone is bringing dubious claims into a discussion it is important to identify them as such as quickly as possible.

As always, I’ll update these and other posts as more information becomes available.

*Bonus: How do you get all of the legal documents?

It’s both harder than it should be and in fact not so hard.  The important thing to remember when looking up legal documents (and this is true at all levels) is that court document systems are not sophisticated.  Generally speaking, for every court it seems there was a moment in the late 1990s or early 2000s where someone decided that things should be available online.  At that point some contractor spun up an online portal, and that portal has never been updated since.  So when you are searching courts for information just pretend it is 2002 and proceed accordingly.  

For the court in this case, that means going to the public portal and logging in as a public user.  You then need something pretty specific (a case number, a party name) to find documents.  For the Stratasys case that number is SC-17-02-24-6077.  If you can get a thread, you’ll end up at a docket page.  Even small cases will have a number of documents, because this page captures everything that happens procedurally in the case.  Fortunately the names are at least semi-descriptive, so you can be reasonably sure something called “Judgment” will be a judgment.

There is one thing that is obviously missing from the docket page, and that is the transcript.  For that I just called up the court clerk to ask for instructions.  Courts know that their websites aren’t amazing and court clerks are generally pretty friendly.  In this case they happily told me how much the transcript would cost, where to send the check, and what else to include in the envelope.  A few weeks later I had the transcript in my inbox.

Sad face image courtesy of Loubie.

This post originally appeared on the Shapeways blog.

On the heels of last week’s Net Neutrality day of action in the US, today Shapeways is filing formal comments in the United States Federal Communication Commission’s (FCC) net neutrality investigation. Pete’s post from last week explained why we believe that an open internet is key to the success of Shapeways and the Shapeways community. This post will explain exactly what we are telling the FCC in our comments.

Shapeways’ comments do not attempt to address every question raised by the FCC in its request for public comment. We have no doubt that nonprofit organizations working on the front lines of the net neutrality fight in Washington will be filing long responses to those today (speaking of which, if you think it is important to have thoughtful, sophisticated responses to questions raised by the FCC in its open internet proceeding you should consider donating organizations like Public Knowledge, the Open Technology Institute at New America, and Free Press).

Instead, our comments today focus on why an open internet is important to Shapeways. More specifically, they focus on how Shapeways has been able to rely on an open internet since its founding, and how the current investigation undermines that reliance.

There have been a number of rounds to the US net neutrality fight since Shapeways was founded. Setting aside the specifics, each round has moved the FCC toward stronger rules to protect an open internet. No matter where we were in the cycle – rule discussion, rule creation, rule challenge – the FCC was making it clear to companies such as Shapeways that it fundamentally supported the concept of an open internet. The form that support would ultimately take might be in flux, but the underlying support was clear. This support made it clear to ISPs, internet users, and internet companies alike that there would be consequences for undermining the open internet.

The current investigation is the first time since Shapeways’ founding where the FCC is departing from that support so dramatically. The FCC no longer appears to be searching for the most effective way to protect an open internet. Instead, after establishing strong net neutrality rules and having those rules affirmed by the courts, the FCC now appears to be walking away from them. By extension, this is walking away from the open internet.

This turn is incredibly worrying to us here at Shapeways. That is why we participated in last week’s day of action and why we are submitting comments today. If you participated in this investigation last week, thank you. If not, there is still time. The reply comment deadline is not until August 16. For a quick primer on how to write effective comments, read this piece by Gigi Sohn.

Regardless of how you feel about the FCC’s current proposal, we urge you to weigh in during this process. As an internet user, the FCC’s decision will impact you. This is your opportunity to impact that decision. If you have thoughts, comments, or questions, we encourage you to share them below.