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.
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
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.
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.
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
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.
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.
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.
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
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
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.
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
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
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.
Late last year we highlighted the fantastic work that the Cooper Hewitt Museum is doing to set an example for how museums and other cultural institutions can make high
quality 3D scans available to the public. Unfortunately, just as long
summer days must turn to cold winter nights, we now have an example of a
different cultural institution doing a fantastic job of setting an
example of how not to handle the same types of issues.
Scene: Sioux Falls, South Dakota
Sioux Falls is home to a high quality cast of Michelangelo’s Moses,
one of his best-known sculptures.* The cast itself co-owned by the
City of Sioux Falls and Augustana College and is on public display on
the campus of Augustana College.
Local photographer Jerry Fisher decided to use the sculpture as his
subject while he honed his 3D capture skills, documenting his progress
on Twitter and Google +. Unfortunately, this completely reasonable and
legal act caught the attention of representatives of Augustana College.
Citing an unspecified (and ultimately nonexistent) mixture of copyright
and other intellectual property rights concerns, the College asked
Fisher to remove his 3D files from the internet. Fearing some sort of
liability, Fisher complied with this groundless request, thus depriving
himself and everyone else of the opportunity to use the files.
Augustana College’s Request Was Out of Line - The Public Domain is Real
Let’s get one thing out of the way right now: Augustana College had
no legal right or basis to threaten Fisher with the specter of
infringement. There is no copyright protection for a sculpture that was
created at the dawn of the 16th century by a sculptor who
died 450 years ago. All of Michelangelo’s work is firmly in the public
domain. If fact, copyright didn’t even exist during Michelangelo’s
lifetime. From the moment he sculpted his Moses anyone could copy,
remix, and build upon it for any reason, without having to ask
Of course, the sculpture in Sioux Falls is not Michelangelo’s
original sculpture. The original Moses is still in Italy. The Sioux
Falls sculptures are exact replicas made in the early 1970s - exact
replicas, it seems appropriate to mention, that were made without
permission of Michelangelo’s estate because the originals are not
protected by copyright. There was no copyright on the original
sculpture, and there is no copyright in the exact copies of the original
If Fisher were practicing his 3D scanning on original sculptures made
in the early 1970s, the sculptures would likely still be protected by
copyright. Fortunately for Fisher and everyone else, the sculpture in
question is not an original sculpture – it is a copy. Just as scanning a
16th century map doesn’t give me a new copyright in the scan file, casting a copy of a 16th century sculpture doesn’t give me a new copyright in the cast.
The Norman B. Leventhal Map Center at Boston Public Library
scanned this 16th century map, but doing so did not give the library a
new copyright in their scan
On some level, the college recognizes that they do not have the right
to restrict copies of their Moses cast. People take photographs of the
sculptures all the time, but the college does not assert an imaginary
copyright interest and request that those pictures be destroyed. But
somehow, a 3D scan – just as much a copy from a copyright standpoint as a
photo - raised novel and inarticulable concerns with College officials.
Fortunately for everyone who is not Augustana College, 3D scanning is
not magic and does not give Augustana College or anyone else the right
to steal works out of the public domain.
How Did This Happen?
In all likelihood, Augustana College was not acting maliciously when
they told Fisher to take down the files, and did not realize that they
were doing anything wrong. This case has all of the hallmarks of a type
of lawyer-itus (or quasi-lawyer-itus), that tends to manifest itself
around copyright. Representatives for the College had a vague concern
that the scanning might possibly infringe on someone’s copyright or
trademark or something, and that somehow the College could be
When faced with that vague concern, the College essentially had two
choices. One was to do some research in order to find out if their
concern was actually warranted. The second, and this is the path it
appears they took, was to just say no, throw out scary words like
“copyright,” shut the project down, and hope that the problem went away.
The second choice is the lazy choice and is almost always easier. It
takes almost no time and effort. But it also takes away the public’s
right to access public domain works (the same right, it should be noted,
that allowed the casts to be made in the first place).
This type of choice between reacting and thinking is one that leaders
at cultural institutions all over the country will be facing in the
coming years when they start getting questions about 3D scanning. There
is always the temptation to say “no” and get on with your day. But the
better response is to take the time to really understand the issue and
work to keep the sculptures, buildings, and objects that are in the
public domain out of a fake copyright fog. Copyright protection lasts
long enough – a combination of fear and laziness should not be allowed
to pull works out of the public domain.
Bonus: Today’s Copyright Laws Are Designed To Make Lawyers Overly Cautious
Many lawyers are cautious by nature, but there are elements of
copyright law that give them an extra incentive to be even more cautious
than usual. Specifically, a quirk of copyright law can make monetary
damages balloon unusually quickly in infringement cases.
In order to get money in most civil cases you need to show your
damages. Get hit by a car? Show the court your medical bills and lost
wages. Painter paint your wall hot pink instead of staid beige? Show
the court how much it cost you to get the work redone.
Copyright law is different when it comes to damages. A copyright
holder can sue for actual damages, just like the person hit by a car or
with a bad paint job. But they also have the option to sue for what are
called “statutory damages.” Instead of pointing to the actual cost of
infringement (that illegal download of a song deprived the artist of
$0.99), a copyright holder can just point to an amount that is written
into the text of the law to serve as the value of the damages. That
amount can be in the six figures for a single infringement (that’s how
infringing 24 songs can result in a $1.5 million damages award).
Among other things, the threat of these statutory damages makes
lawyers super cautious around potential copyright infringement claims.
Even if he was infringing, the actual cost of Fisher making unauthorized
copies of the sculpture would likely be no more than a few hundred
dollars (if that). Faced with that kind of liability, a lawyer may
decide to take a bit of a risk and err on the side of public access.
But in the face of hundreds of thousands of dollars worth of liability, a
lawyer has to be pretty sure before saying “yes,” even if they start
from the assumption that the work is in the public domain. And getting
that sure can take a lot of time.
Fortunately, there may be an opportunity to change this. Congress is
taking a serious look at updating copyright laws during 2015, and we
will be working hard to get statutory damages reduced or eliminated.
That will make it easier for people to access works that are in the
public domain by significantly reducing the cost of errors. Keep your
eyes open for more discussion of this in the coming months.
* It is actually home to casts of two sculptures: Moses and David.
While this post focuses on Moses, you can rest assured that the analysis
also applies to David.