This post originally appeared on the Shapeways blog.

This week, Shapeways is proud to join over 800 of our fellow startups and tech companies in support of net neutrality. Our letter to the chairman of the U.S. Federal Communications Commisson, Ajit Pai, reiterates the importance of a fair, open internet to Shapeways and the entire Shapeways community.

This letter is necessary because Pai has indicated interest in rolling back the landmark open internet rules established by the FCC in 2015. Those rules formalized the protections that allowed for the growth of the internet that we know today.

Shapeways has long supported net neutrality because we understand how critical an open internet is to our success and to the success of every Shapeways user. Shapeways started as a small company in the Netherlands based on a technology that few people had heard of. We were in no position to cut deals and make special payments to big internet service providers just to be able to reach our customers. Net neutrality allowed us to grow as our community grew, not as gatekeeper internet service providers would let us grow.

The independent shop owners, makers, and creators that make up the Shapeways community rely on an open internet as well. They reach their fans, customers, and collaborators without having to worry about what the company that connects them to the internet thinks about their activity.

We hope that our letter will remind Pai of the importance of net neutrality and help convince him not to overturn these critical rules. We thank Engine, Techstars, and Y Combinator for helping to organize this letter, our colleagues for joining it, and all of the organizations and individuals who have fought — and will continue to fight — for an open internet. We understand that includes many members of our community, who we will keep you updated as this process continues to evolve.

This post originally appeared in the Shapeways blog.

Today, Shapeways joined with a number of other online platforms to submit a letter to the European Parliament. The letter raised our collective concerns about new online copyright proposals that the Parliament is currently considering. Specifically, we are concerned that a new proposal would erode or eliminate the safe harbors that allow online platforms like Shapeways to serve our users.

This proposal is in Article 13 of the proposed Digital Single Market Directive. As you may recall, online platforms such as Shapeways operate within what is known as a copyright safe harbor. That safe harbor allows us to trust that the content uploaded by our users does not violate anyone else’s copyright interest until and unless we hear from that anyone else. In the USA, this safe harbor is part of the Digital Millennium Copyright Act or DMCA (we’ve been talking about the DMCA in a slightly different context here, and you can learn how the DMCA process works in practice on Shapeways here). In the EU, it is part of the E-Commerce directive.

As originally written, the proposed Article could impose an obligation to create some sort of new copyright filtering technology, report the activity of our users to large rightsholders, and give large rightsholders control over what kinds of new services are created.

Fortunately, the EU policymaking process is a process, which means that the initial proposal is not necessarily the final version of the rule. Since the release of the original proposal, various committees have proposed changes and suggestions to the text.

While some of these proposals are improvements (for example, recognizing that users of online platforms are key stakeholders in the rules that govern online platforms), we are still skeptical that the changes are necessary at all. That is why we conclude our letter by urging policymakers to maintain the integrity of the safe harbors that have allowed so much creativity to flourish.

The Parliament now moves into a deeper discussion phase. We will continue to monitor the discussion, and provide updates as they become available.

This post originally appeared in the Shapeways blog.

Today the U.S. Supreme Court handed down a decision in the cheerleader uniform case we have been tracking for the past few years. The decision clarifies the test used to determine how copyright applies to many 3D printed objects. While it is too early to say for sure, it likely also greatly expands the scope of copyright protection for those objects.

Why should the 3D printing community care about a case involving cheerleader uniforms again? Because the case is really about a question that comes up often in the world of 3D printed objects. Intellectual property law basically divides the world up into artistic objects that are eligible for copyright protection and functional/useful objects that are eligible for patent protection. This binary division works well when an object is clearly purely artistic (like Joaquin Baldwin’s Mobius Nautalis)…

…or clearly purely functional (like Pinhole Printed’s film spool adapter).

It does not work as well when an object combines artistic and functional elements (like — of course — Studiogijs’ Birdsnest Egg Cup).

Prior to today, there were over ten tests for how to handle these types of objects. Each of these tests tried to figure out what part of the object, if any, was eligible for copyright protection. Remember that copyright protection can last the life of the creator plus 70 years after her death. That means that the difference between an object being protected by copyright and an object not being protected by copyright has repercussions for generations.

The Decision

The decision itself sweeps away those multiple tests for how to handle mixed objects and replaces it with what will hopefully be a fairly straightforward, two-part test:

1. Can the artistic parts of the object be perceived as a two- or three- dimensional work of art separate from the useful article?
2. If yes, would the artistic parts qualify for copyright protection?

If part of a mixed object passes both of those tests then those parts of the object are protected by copyright. Importantly, it is only those parts of the object that are artistic that are protected.  Nothing about this test pulls the entire object into copyright protection. That means that the fact that Smart Design’s Light Switch has antlers that are eligible for copyright protection does not mean the (purely functional) switch plate is also protected.

This test comes with an interesting corollary, which might help explain why it is such a big deal. The test does not care if removing all of the artistic elements from the object allows the remaining object to keep functioning. In other words, it is not a problem if removing the artistic elements from the object would render it functionally useless.

Since we’ve been using it as an example for a while, let’s go back to Studiogijs’ Birdsnest Egg Cup to explain why this is important.

The test as established by the Court can be thought of as a copyright-first test. Looking at the cup, it asks a viewer to pull out all of the parts of the cup that could be perceived as a two- or three-dimensional work of art. Viewed some ways, that’s basically the entire cup. The bird and the branches could all exist as an independent artistic work, even though removing them would leave you with no way to hold your egg. And that’s ok. The test does not care that there might be very little left of the functional parts of the object after you remove those artistic elements. It only cares that the artistic elements can be perceived. Each of those artistic elements are protected by copyright.

An alternative test — one not adopted by the court— could have taken a useful-first approach. Instead of starting with the artistic elements, it could have pulled out the parts of the object that are required for the object to achieve its functional goals. Again, that’s basically the entire cup. The branches, however artistically rendered, also serve the functional purpose of holding the egg. The test could then look at what was left — in this case, that’s basically the bird — and protect those with copyright. This approach would keep functional elements outside of copyright protection and greatly reduce the cup’s connection with copyright.

As you can see, the place where you start this test can have a huge impact on the outcome. Start by removing the artistic elements without concern for the underlying utility and you end up with a lot of stuff protected by copyright. Start by removing the useful parts without concern for the artistic elements and you end up with less stuff protected by copyright.

The Supreme Court decided to start with artistic elements. That makes the process for understanding what parts of mixed objects are protected by copyright a much easier one than before. It also greatly expands the number of mixed objects that are at least partially protected by copyright.

What will that mean in practice? It is hard to say. Copyright can be used as a shield by creators to prevent unauthorized copying of their work. It can also be used as a sword against them because all creation requires building on existing elements in the world. If more of those elements are protected by copyright, it may be harder to create new things without having to get permission first.

This decision came down today so we cannot be sure how it will ultimately play out. We can be sure that we will keep an eye on this and continue to provide updates here on the blog. 

Note that, unlike the rest of this post (and the blog more generally) the images in this post are not licensed under any CC license.  They are used here in compliance with the Shapeways Terms and Conditions.

[Update May 25, 2017: Red Hat’s Tom Callaway rightly - and gently - admonished me for completely overlooking the Red Hat Patent Promise when discussing this issue at the Creative Commons Summit.  It’s a pretty good example of the kind of license this post ends by asking for.]

I think so.  But it requires more than broadly worded promises - especially when it comes to defensive patents.

This post is inspired by Ultimaker’s announcement (both in a blog and forum post) that they were filing their first patent.  Before getting into why I think patents and open source hardware can coexist, I should mention a few things.  

First, nothing in this post is intended as a criticism of Ultimaker.  Open source hardware is relatively new and I don’t think that anyone is in a position to say that they have the one true path for making openness work in hardware.  I’m glad to see Ultimaker be public about their approach and I hope that they continue to be successful (and transparent).  There must be room for experimentation in open source hardware and experimentation means trying new things.

Second, Ultimaker’s relationship to open source hardware has always been and continues to be an interesting one (in a good way!).  They released all of the files for the Ultimaker 2 on github (great!), but used a license that restricted commercial uses of the files (not as great, at least according to the standards of the OSHWA-maintained community definition!).  Were they so inclined, that restriction would prevent them from getting OSHWA certification for the Ultimaker 2.  How much that matters is in the eye of the beholder.  As I said, there are still many trails to openness being blazed and I try not to be religious about which one is right.

Third, and finally, this post is meant to be less a specific analysis of Ultimaker and more of an attempt to use Ultimaker’s announcement as an excuse to think about these things.  

On to the substance….

Is there an inherent conflict between being an open source hardware (oshw)-oriented company and getting patents?  I don’t think so.  There is nothing about having a patent that necessarily conflicts with being open, just as there is nothing about having a copyright that necessarily conflicts with being open.  They are both types of intellectual property rights that can be used to restrict others.  But they don’t have to be used in that way.

Along those lines, I think it would be fairly uncontroversial if an open source hardware company decided to license their patents under a patent license styled after a Creative Commons Attribution license, where anyone could use the patent as long as they provided attribution to the patent holder.  Those are essentially the types of restrictions that CERN and TAPR-style licenses attempt to impose.  If that type of condition is allowable in the copyright world I don’t see why it should not also be allowable in the patent world.

Defensive Patents

The more interesting question might be if an oshw company decided to apply some sort of defensive-oriented license to their patent.

Remember, defensive patent portfolios are intended to be a sort of mutually assured destruction deterrent to third parties who might bring a patent lawsuit against you.  They exist to say “hey, if you sue me for patent infringement I may be able to sue you right back, so let’s chill instead.”  

These sorts of arrangements don’t work with patent trolls who are not actually operating in the business world.  Patent trolls aren’t really doing anything (besides trollin’) so it is unlikely they are infringing on the defensively held patent.  

They can work in a market with bona fide competitors who have shown a willingness to sue new entrants (like, to pick a market totally at random, the desktop 3D printing market) and who might be convinced to hold their fire if they thought the target of their patent infringement lawsuit had some patents of its own to use in a countersuit.

Conceptually, it would seem reasonable to continue to think of oshw companies as open even if they have patents they are keeping for defensive purposes.  While this sort of conditional permission (”here is a license to my patents WHICH I WILL REVOKE IF YOU SUE ME FOR PATENT INFRINGEMENT so let’s all chill”) might possibly conflict with point 10 of the open source hardware definition (license must not be specific to the product), there is room for debate there.  At a minimum I’m skeptical that it violates the principle that point 10 is trying to embody.

Make it Official

That approach comes with at least one big caveat, however.  It does not seem enough to simply say that the patents are being used for defensive purposes.  Instead, the company would have to clearly define what “defensive” means and bind itself to that posture.  

The most logical way to do that would be with a license. That way others could make use of the patent knowing that they have a legally robust set of permissions from the patent owner to do so.  It would be clear what is allowed and what is prohibited, and when a user might run into trouble with the patent owner.

It is here that I think some of these attempts to be defensively open with patents fall down.  I don’t think that a blog post that essentially says “you are cool as long as we think you are cool” quite cuts it (again, I’m not focusing on Ultimaker here - Tesla has a similar approach which also causes some confusion).  It would be much better if a company trying to be open with patents actually bound itself to that promise with something like the defensive patent license.  Unfortunately we aren’t seeing that quite yet.

Right now the good news is that we are seeing companies trying to be more flexible with open promises around their patents.  And on some level the reluctance to formalize rules this early in the game are understandable.  After all, no one quite knows how this stuff will shake out under pressure.

Unfortunately, that reluctance means that we don’t know how good that news really is until those promises are tested in some way or another.  A license would make it easier to evaluate the promises, but that’s not something we have the luxury of seeing in the wild yet. And until we see a real license, I’m wary of giving anyone too much credit for handling their patents well.  That’s because it isn’t easy to evaluate how they are handling their patents at all.

Which means we continue to wait and see.  It would be great if someone like Tesla or Ultimaker decided to step up and propose a real defensive open source hardware patent license.  Right or wrong, that would give everyone a firm benchmark to use in thinking about these things.  

In the absence of that we are stuck in a somewhat theoretical discussion.  At this point the best we can say is that defensively holding patents probably should not categorically disqualify a company from being open source.  It remains to be seen if there is a good way to execute that in real life.

This post originally appeared on the Shapeways blog.

Today, Shapeways, along with Kickstarter, MakerBot, and Meetup, filed comments in the U.S. Copyright Office’s multi-year study into how the copyright safe harbors that allow websites such as ours to function are working. You can read about prior developments in this study here.

The role of the safe harbors are reasonably straightforward. Websites (such as Shapeways) that allow users to post content do not know if the content being posted infringes on copyrights held by others. Without the safe harbor, this would require Shapeways (and Kickstarter and MakerBot and Meetup and Facebook and YouTube and every other site on the internet) to clear every model, comment, video, and other type of upload through the legal department before posting. In other words, without the safe harbor protecting sites from the potential copyright infringement of their users, none of these sites would exist.

Fortunately, the safe harbors allow sites such as Shapeways to assume that content posted by our users does not infringe on copyright until we hear from a rightsholder. At that point we quickly take the content down to initiate the notice-and-takedown process (details on how that process works can be found here).

These safe harbors were established as part of the Digital Millennium Copyright Act (often abbreviated as the DMCA) in 1998. In 2015 the U.S. Copyright Office initiated a study of how well they were working.

In this current round of comments, we made two primary points:

First, we noted that the DMCA copyright process continues to be heavily influenced by trademark law. Including a claim of trademark infringement effectively removes an accusation of infringement from the DMCA process. Among other things, that makes it very hard for users accused of infringement to challenge that accusation. We believe any study on the DMCA copyright process should recognize that element of how the process works in the real world.

Second, we raised concerns about the framing of much of the discussion in the Study. In addition to an earlier round of comments, the Copyright Office held a series of roundtables (which, for reasons known only to the Copyright Office, it refused to record or allow to be recorded either in audio or video but did release transcripts of) to discuss the issues. In both the earlier round and at the roundtables, a great deal of attention was paid to how the largest online platform – Google – interacted with the safe harbors. In our second point we tried to remind the Copyright Office that the vast majority of websites protected by the safe harbor are not dealing with millions of automated takedown requests a year. We therefore suggested that shaping solutions or conclusions with that scenario in mind would overlook how the safe harbors operated in the vast majority of cases.

As far as we know, this will be the last round of comments in this proceeding. At some point it is likely that the Copyright Office will release their report on the safe harbors. When they do, we will make sure to update you on the blog. Let us know in the comments if you have any questions.