Yesterday, Autodesk announced that it was open sourcing one of the resins for its spark 3D printer. Autodesk says that they are releasing the recipe under a Creative Commons attribution-share alike license, and invited the community to remix, improve, and build upon it as they saw fit. This decision is commendable on the part of Autodesk, but what does it actually mean to open source 3D printing resin?

Open source can mean a lot of things to a lot of people, but generally speaking it usually involves (at least) two elements. The first is releasing documentation for the thing being open sourced in a way that allows people to understand how it works and really begin to access it. The second is licensing any intellectual property rights connected to the thing being open sourced in a way that allows sharing, remixing, and building upon.

Autodesk’s announcement appears to fulfill that first requirement quite well: they released the ingredient list of the resin. This should allow people outside of Autodesk to accurately reproduce the resin, which is the first step to building up on it.

The second requirement is a bit more complicated. The language in the announcement blog post makes it clear that Autodesk’s intention is to invite people to use and improve the resin as they see fit. And the use of the Creative Commons license is a signal about how Autodesk would like people to use the resin.

But is that license really necessary? Licenses are important in the context of open source software because software is automatically protected by copyright.  Software’s default state is protected, and the creator of software needs to take affirmative steps in order to allow other people to remix and build upon their work.

Resin is different. Resin, and a formula for resin, is not protected by copyright.  Unless Autodesk decided to patent its resin, that resin is “open” by default.  No one needs permission from Autodesk to copy or improve upon their resin, or to reproduce its core formula. In that sense, Autodesk’s Creative Commons license on the formula is legally meaningless.

Autodesk is a big company with a lot of lawyers, and those lawyers undoubtedly understand that the licenses here are largely symbolic. That can be ok, because even when licenses aren’t legally binding, they can serve as important signaling devices to users (when getting close to a big company with lots of lawyers, wanting a belt and suspenders rights clearance guarantee isn’t crazy).

But as the world of open source expands beyond software, it is important to take time to remember that translating the open source spirit to non-copyrightable things isn’t as simple as transferring existing licenses. Among many other things, that means remembering that the absence of a license doesn’t mean something is closed, and that the presence of a license doesn’t necessarily give you any permissions that you didn’t have already.

None of this takes anything away from Autodesk today. If this is what it means for them to “think differently about 3D printing” it should be welcomed and cheered. But that doesn’t make it any less important to pay close attention to what, exactly, they are doing.

Image credit: Autodesk

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This is the third 3D printing whitepaper. It was also the last big thing I wrote for PK.  The paper focuses on what parts of 3D printable objects (and files) might be protectable by IP and what happens if those parts are protected. The title is kind of a lie.  It spends much more time talking about what you might be able to license than how to license those parts after you have identified them.

Download it here.

Today is a great day for the Open Internet. The FCC voted to create strong net neutrality rules grounded in robust legal authority. That vote, and those rules, are the culmination of over a decade of hard work and an especially vigorous year by a large and diverse coalition demanding robust Open Internet protections. We’re still waiting for the details, but as of now there is every reason to view this vote as a watershed moment in the history of net neutrality. At a time like this, it is important to take a moment and appreciate the magnitude of this accomplishment.

That being said, we have already started to get questions about what happens next. The rules voted on today will define the debate around an Open Internet for the foreseeable future and establish a strong precedent in favor of robust net neutrality protections going forward. However, for better or worse, they do not bring that debate to an end. While it is unclear exactly what the next step will be, this post is an attempt to briefly outline the possibilities.

But first, a quick reminder: Public Knowledge and many of our net neutrality allies will be hosting a Reddit AMA tomorrow at 2:30. Join us if you have questions.

The Courts

One set of possible next steps take place in the courts. At least one ISP has already outlined its case against the rules, and it may not be alone in planning to challenge the rules in court. That challenge can take at least two forms.

Immediate Challenge

The first is called a facial challenge, and could occur immediately after the rules are formally in place (we won’t know exactly when this is until the order is released). This is the type of challenge that Verizon successfully brought against the 2010 Open Internet rules. It is a challenge to the rules as they are written – how they appear on their face. The challenge would likely focus on the nature and scope of the rules, as well as the process the FCC used to write the rules. It could be brought by one or more ISPs.

This type of challenge would begin with one or more ISP(s) petitioning the FCC to stay (or temporarily suspend) the new net neutrality rules pending a review (formed as a Petition for Reconsideration). Assuming the FCC did not immediately act on that petition, the ISP(s) would then move onto the DC Circuit, most likely combining a request for a stay with their challenge to the rules. The DC Circuit would likely decide whether or not to grant the stay fairly quickly, but the larger fight about the rules themselves would take months. Importantly, the decision about the stay is unlikely to provide very much insight into how the court will decide the challenge to the rules themselves. However, granting a stay will mean that the rules do not go into effect until the DC Circuit has resolved the larger challenge.

Future Challenge

The second type of challenge is an as-applied challenge. Instead of immediately challenging the rules as they are written, an as-applied challenge challenges the rules as they are applied in a specific circumstance. As such, no ISP will be able to bring an as-applied challenge immediately. Instead, we will have to wait until the FCC actually punishes someone for violating the Open Internet rules. At that point, the punished ISP could challenge the rules as they were applied in that circumstance. Notably, even if the FCC wins a facial challenge to the Open Internet rules, ISPs will still be able to bring as-applied challenges in the future.

Congress

The other possible next steps take place in Congress. Next steps in the courts and in Congress are not mutually exclusive, and we will fight back against them in different ways. Similarly, each of these possible actions in Congress is potentially independent from the other.

Congressional Review Act

The first possible action is that Congress moves to overturn the FCC’s rules through a procedure outlined in the Congressional Review Act (CRA). Once the FCC’s rules are formally published, Congress has 60 days to pass a “Resolution of Disapproval” and either have President Obama sign the resolution or collect enough votes in support to override a veto. If it passed, the resolution would overturn the Open Internet rules. Further, it would prevent the FCC from any further Open Internet rulemaking until Congress itself acted. In other words, a successful CRA process would both overturn the existing rules and prevent the FCC from creating new ones. Congress attempted this after the 2010 rules but public outcry prevented them from succeeding.

Specific Legislation

The second possible action is a continuation of the process initiated by Senator Thune to pass net neutrality-specific legislation. While Public Knowledge has raised concerns about Sen. Thune’s initial draft, we welcome his commitment to work with all stakeholders to consider revisions to the legislation in the future. There is room for Congress to act in this area, and we look forward to helping craft strong legislation that really protects the Open Internet.

Appropriations Riders

The third possible action is that Congress attempts to limit the FCC’s ability to enforce the rules through appropriations riders. As part of appropriating the FCC’s budget, these riders would prohibit the FCC from spending any money to enforce the Open Internet rules. Needless to say, such a limitation would significantly limit the rules’ effectiveness. These types of limitations would be included in the FCC’s larger budget and would have to pass through Congress and be approved by the President.

Communications Act Rewrite

The fourth possible action is that net neutrality gets wrapped up in a larger rewrite of the Communications Act. In the medium and long term, this is actually likely to happen. Congress has been seriously discussing updating the Communications Act since 2013, and any update would almost inevitably include rules that impact an Open Internet. While Open Internet rules may be a comparatively small part of this larger process (dwarfed by, among other things, working out rules related to the tech transition), decisions made during a rewrite would have a significant impact on the Open Internet.

All, Some, or None

Right now it is hard to know which, if any, of these will come to fruition. We here at Public Knowledge are keeping our eye on all of them. So celebrate the win and savor the victory. But keep an eye out for another alarm from us, because we’re not quite done yet.

After an unprecedented outpouring of public support, today the FCC voted to enact the strongest net neutrality rules in history.  By embracing its Title II authority and creating clear, bright line rules against blocking and discrimination, Chairman Wheeler and the FCC have earned a reputation as defenders of an Open Internet.

This day would not have happened without the support of the millions of Americans who commented with the FCC, called Congress, and wrote to the White House.  This bipartisan wave of Open Internet supporters from across the country came together to make it clear to their government that it had a crucial role in protecting an Open Internet.

After months and years of hard work and advocacy, today is a day to celebrate and savor.  Public Knowledge will provide more a detailed analysis of the rules and the order soon, but for now take a moment to reflect upon and enjoy the win.

As everyone knows, the best way to enjoy a win is with a party.  If you are in DC tonight, please join us at the Victory for the Net party, co-hosted with our allies at Free Press, ColorOfChange.org, Common Cause, CREDO Action, Daily Kos, Demand Progress, the Electronic Frontier Foundation, Fight for the Future, the Internet Archive, the Media Action Grassroots Network, the National Hispanic Media Coalition, the Open Technology Institute, and the Progressive Change Campaign Committee.

When: 6:30-9:30 p.m.

Where: Lost Society, 200114th St. NW (Green & Yellow @ U Street)

RSVP HERE

And if you are in San Francisco, please come to the west coast Victory for the Net party:

When: 6:00-9:00 p.m.

Where: The Internet Archive, 300 Funston Ave., San Francisco

RSVP HERE

Finally, if you have questions about what all of this means, come by our Reddit AMA tomorrow at 2:30pm where PK and many other net neutrality advocates will be on hand to answer questions and explain what is happening next.

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Yesterday news broke that Katy Perry* (among other things, the intended star of the 2015 Super Bowl Halftime Show) demanded that the 3D printing website Shapeways stop selling a model of Left Shark (perhaps the actual star of the Super Bowl Halftime Show). The letter to Shapeways came on fancy letterhead and was full of scary words, but is it backed up by any law?

Quick Background (Costumes and Copyright)

In order to start to answer that question, there are two things that are worth keeping in mind. First, although the letter first broadly references a generic “intellectual property depicted or embodied in connection with the shark images and costumes,” later on it references a specific section of copyright law. In light of that, let’s assume that Katy Perry (and although the letter comes from Katy Perry’s lawyers, they are her representatives so I’m just going to refer to them collectively as Katy Perry because it is more fun) is claiming to have a copyright in the shark costume.

The problem with this is that courts have generally found that copyright does not protect costumes (even fairly creative ones). Essentially, courts have lumped costumes in with other kinds of clothing and considered them all the kind of “useful article” that is beyond the scope of copyright protection. If you are curious, that use in this articles is things like “preventing you from being naked” and “keeping you warm.”

There are some legal theories that could be put forward to try and get copyright protection for a specific costume, but they mostly come into play when there are elements of a costume that could exist independently of the costume or when the costume is tied to a character developed in a book, movie, or play. It would probably be a stretch to put Left Shark into either of these categories.

An addition note is that even if the Left Shark costume is protected by copyright, that doesn’t automatically make Katy Perry the owner of that copyright. But let’s set that aside for now.

Quick Background (DMCA)

The second thing to keep in mind (and I promise I’ll bring all of this home) has to do with the Digital Millennium Copyright Act, or the DMCA for short. There are a number of parts of the DMCA (click here to learn about the part that might prevent you from using your own filament in a 3D printer, ripping your own DVD, or accessing data from medical devices implanted in your chest), but one of them protects websites that host content for people – websites like Shapeways, YouTube, and Facebook – from copyright liability.

Websites get this protection as long as they comply with a specific set of requirements, and are under no obligation to take down infringing content as long as they are in compliance. One of these requirements is to takedown copyrighted content if they get a request from the copyright holder – this request is sometimes called a DMCA takedown request. However, that request includes a requirement that the person sending it affirm under penalty of perjury that they are the owner of the copyright (or their designated agent).

Background Over – Let’s Get On With It

With those two things in mind, let’s look at Katy Perry’s letter. The most important thing about the letter is probably what it is not – the letter is not a real DMCA takedown notice. For one thing, it is missing a link to the actual allegedly infringing work. Perhaps more importantly, it is missing a statement – remember this statement has to be made under penalty of perjury – that the person sending the notice actually owns a copyright in the work being discussed.

Instead, the letter is presented as a “cease and desist” letter, a kind of letter sometimes described by lawyers as a “nastygram.” In some – although not all – cases nastygrams are designed to intimidate the recipient into compliance (often through the use of fancy letterhead and scary language) even if the sender does not actually have the legal power to back up the threats.

It is hard to tell if this letter falls into that category, but there are some interesting clues. First, there is the question of the costume copyrightability at all. It is not clear that anyone owns a copyright in Left Shark. And if no one owns a copyright in Left Shark, no one can demand that a Left Shark model get taken down from Shapeways. Second, there is the question of who would own the copyright in Left Shark if it were to exist. It is certainly possible that Katy Perry was farsighed enough to demand ownership of the copyrights of every costume in the halftime show, but it isn’t automatic.

And third is the choice of a nastygram over a real DMCA takedown notice. Katy Perry has fancy lawyers. They know that a website like Shapeways is immune from copyright liability unless they receive a properly formatted DMCA notice. But they also know that a property formatted DMCA notice would require an oath that Katy Perry actually owned an existent copyright in Left Shark. If they were worried about the truth of either of those things, they might have hoped that a nastygram would give them the outcome they were looking for without exposing them to perjury liability.

Or maybe they just prefer sending nastygrams to DMCA notices. Hopefully Katy Perry will explain what part of Left Shark she owns so we can clear all of this up. Until then, color me a skeptic.

*I admit that I’m not familiar enough with the Katy Perry catalog to artfully weave Katy Perry puns and references into this blog post. You are well within your rights as a reader to expect them, and I’m sorry to disappoint you.

Left Shark image from thingiverse user mstyle183.

This post originally ran on the Make blog under the headline Why Katy Perry’s Lawyers Just Jumped the Shark.  That’s a perfectly good headline.  In fact, many people (and at least one person very close to me) think that headline is better than the one here.  And they may be right.  But this is my blog and I’m sticking with “fishy,” obnoxious scare quotes and all.