Like many Americans, Adafruit decided to celebrate the recent 4th of July with some patriotic music.  They scored a video celebrating the 4th of July and US manufacture of Arduino with America the Beautiful, as performed by the United States Navy Band (a work on the public domain – more on that below).  Soon thereafter, they received a note from YouTube telling them that someone had issued a copyright claim against the video.  After some outrage, the claim was dropped.  But what actually happened here?  And why did it happen?

The Song is in the Public Domain

Let’s start with the song. Musical copyright is super annoying (for a great dive into one small part of music-related copyright – the ability for artists to reclaim rights they gave to labels, check out this whitepaper by my former PK colleague Jodie Griffin), but this instance is fairly straightforward.  A recorded song has two copyrights: the copyright in the underlying work (the song as written) and the copyright in the performance of that work.  Let’s take them one at a time.

The underlying work is America the Beautiful.  Wikipedia is as good a source as anything for this, and it says that the music for America the Beautiful was originally written in 1882, the poem that became the lyrics was originally written in 1895, and the two were combined in 1910.  Using the copyright duration/public domain calculator of your choice, we can be confident that works originally published on those dates are in the public domain (I’m leaving out a possible newer arrangement of the music for this analysis because no one has suggested it was a factor and it complicates things). Copyright one: check.

The performance is the recording of the actual band performing the song.  It is pretty likely that this performance happened at a time where, if it was eligible for copyright protection, it would still be protected by copyright.   A good public domain rule of thumb is anything after 1922 is still protected by copyright, and the technical realities of 1920s-era recording means any high quality recording is much newer than that.

However, there is another factor to consider.  As I am admittedly super aggressive about mentioning, works by the US government are not eligible for copyright protection.  They are in the public domain from the moment they are created. Since the US Navy Band is part of the US government…. Copyright two: check.  Former Public Knowledge intern Ethan James covered this territory about this time last year.

So What Happened?

If the song (composition and performance) are in the public domain, how could someone have asserted a copyright claim against it? Enter YouTube’s Content ID system.  Content ID is a private alternative to the DMCA that YouTube has set up on its site.  Large content owners upload music or movies that they own.  Whenever anyone else uploads a video to YouTube, YouTube checks the video against this blacklist to see if there is a match.  If there is a match, the rightsholder gets to decide what happens. Sometimes the video is taken down, sometimes the rightsholder runs ads against it, and sometimes the rightsholder prevents the uploader from running ads against the video.

There are a number of legitimate criticisms against Content ID, many of which focus on the fact that it lacks many of the minimal protections for misidentification built into the DMCA.  To continue a theme, former Public Knowledge Artist in Residency Elisa Kreisinger’s Fair Use® explores some of these shortcomings (Public Knowledge is on this stuff people).

In this case, the copyright flag was tied to Rumblefish, a service that (among other things, I assume) patrols YouTube for copyright infringement on behalf of its clients. While the Navy Band’s performance was in the  public domain, it sounds like it was close enough to the (copyright protected) performance by another band represented by Rumblefish to be flagged.

As an aside, even if this other band’s performance was identical to the Navy Band’s, it could still be protected by copyright.  Copyright allows for independent creation.  As long as the unnamed other band wasn’t actually copying the Navy Band – but rather getting to the same place for the same reasons – the Navy Band’s performance could be in the public domain while the other band’s performance could be protected by copyright.  That’s why you have to pay for the London Philharmonic’s recording of fancy classical music but can also get a copy for free from Musopen (Public Knowledge connection: they were on the podcast in 2012).

So YouTube’s Content ID confused the Navy Band’s America the Beautiful with Rumblefish’s client’s America the Beautiful and handed Rumblefish a veto over Adafruit’s video.  Because Adafruit is well known, they were able to raise a stink and have Rumblefish back down. This is a win(ish) for Adafruit, but being big enough to raise a stink really shouldn’t be a prerequisite for overcoming bad copyright claims.

What Could be Done Better/Where Should I Direct My Rage?

Content ID is imperfect. That’s inevitable, but knowing that Google and YouTube could work harder to build safeguards into the system.  And knowing that it represents performances that are dangerously similar to public domain ones, Rumblefish could work harder to tread lightly.

In this case, one obvious change would be to how Rumblefish responded to the match.  From what I can tell, Rumblefish had a match to this performance set to “prevent monetization by the uploader.”  While that is better than “take down forever,” it still had the effect of dictating terms for a video it had no rights over.  For performances of songs like America the Beautiful – songs that are in the public domain, that are likely to have multiple similar versions, and that are likely to have public domain and/or freely licensed versions floating around - Rumblefish could set a match to “flag for me but do nothing until an actual human being reviews the match.”  That is doubly true because it is much more likely that the free, public domain version of the song is incorporated into an uploaded video than the one represented by Rumblefish.

Is that even an option in Content ID?  I don’t know. If it is, Rumblefish should take it. If it isn’t YouTube should implement it.  The cost to free expression of not having that seems a bit too high not to.

The other thing that YouTube could do would be to build some sort of penalty for false positives into the system.  An occasional incorrect match is one thing, but if a song that is included in Content ID regularly triggers misidentification perhaps it should not be allowed to claim control over videos.  This kind of common sense restriction could go a long way towards avoiding these types of situations.

No, this isn’t a post about President Obama being “absent” from some policy debate or another.  Instead, this is really about President Obama being missing.  More specifically, this is about the missing high resolution 3D scan of President Obama being missing.  The file exists – why isn’t it public?

A little over a year ago, the Smithsonian’s Laser Cowboys came to the White House to create the first 3D portrait of a sitting president.  The resulting 3D printed bust made a cameo appearance at the first White House Maker Faire and was on more general display in the Smithsonian Castle at the end of 2014.  The White House also released a great video that detailed the entire scanning process.

The bust popped up again at the National Portrait Gallery for Presidents Day 2015 and then, presumably, made its way back to storage.  Which is fine.  The nature of physical artifacts is that they can only be displayed at one place at a time and, in most cases, spend some time in storage away from the public.

Of course, this is not just a regular artifact.  It is a 3D printed bust created from a 3D scan file.  While the bust can only be one place at a time, the file could be any- and every- where at once.  So why isn’t it?

The Smithsonian’s X3D platform could easily distribute the file (they already have President Lincoln’s face – both with and without a beard).  The White House could host it on open.data.gov or open an account at any number of other places online.  Then anyone could download the file and print their own President Obama bust.  They could also remix President Obama to their heart’s content.

The strangest thing is that keeping this data under wraps isn’t even preventing 3D files of President Obama off the internet.   The team over at Sketchfab managed to extract a version of the President Obama scan from the White House video above.

What’s left to lose?  The White House flickr feed is already full of public domain (bogus usage restrictions aside) images of President Obama.  Now that a 3D file is in the wild, why not provide the public with a high quality version?

Why is President Obama missing from the world of 3D printing?

This post originally appeared on the Shapeways blog.

This article originally appeared on 3DPrint.com.

For much of this year, the US Copyright Office has been looking into 3D printing. Recently, I feel some commenters here at 3Dprint.com have fundamentally misunderstood the proceeding and confused it with unrelated items in the news. As the author of the petition before the Copyright Office, it seemed worth taking a moment to explain what is (and is not) happening at the Copyright Office.

Not All Intellectual Property is the Same

First, it is important to keep in mind that not everything that can be categorized as “intellectual property” is the same. Copyright generally protects creative, nonfunctional works (plus code) with protections that often last more than a century. Patent generally protects functional objects and processes (like 3D printing processes) with protection that expires after twenty years. Trademark generally protects words and symbols that identify goods in the market (like the name Stratasys) with protection that can last forever.

As you might expect from its name, the Copyright Office focuses on Copyright. That means things like Taylor Swift songs and software that runs on computers. In most cases, that doesn’t mean technical processes connected to 3D printing like a new extruder head or material to be printed. That is true regardless how much money or time is spent developing them. These types of 3D printing-related technical innovations may be eligible for patent protection, but (as the name suggests) that type of protection is outside of the Copyright Office’s area of expertise.

This Proceeding is About Using Third Party Consumables in Printers

Fundamentally, the current proceeding is about using consumables not approved by printer manufacturers without violating copyright law (for more background on the proceeding, check out this article). As a general matter, the decision of what type of material to use in your 3D printer has nothing to do with copyright because neither printers nor consumables are protectable by copyright. However, since Stratasys (and other manufacturers) sometimes use chips with (potentially copyright protected) software to verify that consumables came from them, there is an argument to be made that using unapproved consumables could violate a part of copyright law called the Digital Millennium Copyright Act (also known as the DMCA for short).

The DMCA as Pretext

Make no mistake, this potential for a DMCA violation is little more than a pretext for manufacturers to protect materials and processes that are completely unrelated to copyright law. Stratasys is trying to use the DMCA to protect its market in consumables, a market that – regardless of how much time, money, and effort they invest – simply isn’t eligible for copyright protection.

The idea that the DMCA is a pretext to protect these unrelated markets is not speculation. Stratasys’ own filing for the Copyright Office focuses almost exclusively on concerns like consumer safety and repeatability of prints. These concerns may be important, but they are not the types of concerns that Copyright is designed to address.

Stratasys further commissioned an economic study as an addendum to its filing purporting to detail the consumer benefits of locking users into one source of consumables. Regardless of the validity of this argument – and I’ll admit that I’m highly skeptical – this benefit has nothing do with concerns about someone making infringing copies of the software that runs Stratasys printers.

Finally, during the hearing on this petitionStratasys spent a great deal of time detailing the potential for airplanes to fall from the sky if non-approved materials entered the commercial supply chain. Again, regardless of this argument’s validity, we simply do not rely on copyright law to address these sorts of harms. The fact that Stratasys focuses on all of these points at the expense of any actually connected to copyright highlights the pretextual nature of its involvement in this proceeding.

2D and 3D Printing are Different – and the Same

There are numerous differences between 2D and 3D printing – from the materials used, to the output of the machines, to the brand names of the companies involved in the market. However, in the context of the DMCA and unlocking, 2D and 3D printing are remarkably similar.

A decade ago the 2D printing company Lexmark also tried to use copyright as a pretext to lock people into using toner from them. Courtsslapped Lexmark down, rightly observing that copyright has nothing to do with printer toner – even (especially?) printer toner and cartridges that embodied millions of dollars’ worth of R&D and a fair number of patents.

Technical differences aside, the dynamic in 3D printing is almost identical. Again, a printer manufacturer is looking to rely on the pretext of copyright to protect its market in printer consumables that – unlike the market for Taylor Swift’s songs – has no real connection to copyright.

Why is This Important?

If this was simply an academic argument about the nature of copyright it probably wouldn’t be worth having. But besides the general chilling effect that copyright creep can have on innovation, this sort of copyright abuse has very real consequences.

Locking in consumers to consumables approved by manufacturers limits choice. Remember, this proceeding is not about counterfeit consumables that are pretending to come from Stratasys. This is about giving users the choice to use consumables that clearly state “I am not from Stratasys but you still might want to use me anyway.”

Lock-in also slows innovation. No matter how innovative Stratasys wants to be – and I’m not suggesting that they lack innovation – no single manufacturer can think of everything. Allowing third parties the opportunity to sell consumables brings more eyes on the challenges of developing 3D printing materials. With more people competing to develop more innovative 3D printing consumables, everyone wins.

Finally, this is about ownership and control. Using non-approved consumables in a 3D printer may be a great idea. It also may be a horrible idea. However, users of 3D printers are adults who should be free to make that assessment themselves. They may void their warranties or their service contracts, but there is no reason they should be threatened with a copyright lawsuit for daring to experiment with unapproved consumables.

Today, users can load unapproved operating systems on the Apple laptops, unlock their Microsoft cell phones in order to switch carriers, andbuy unapproved 2D printer toner for their Lexmark printers. Not only has the world not come to an end, but Apple, Microsoft, and Lexmark have continued to exist and improve. There is no reason that copyright should be used as a pretext to make 3D printers any different.

Yesterday the Copyright Office released all of the answers to the questions they had after the unlocking hearings.  Turns out that Stratasys, Public Knowledge, and I all agree!  We all told the Copyright Office that there is no meaningful way to make some sort of distinction between “commercial” and “non-commercial” users of 3D printers for the purpose of the exemption.  What’s going on here?

Both during the hearing and in its follow up question, the Copyright Office seemed interested in exploring granting some sort of partial exemption for unlocking 3D printers.  It is always dangerous to look too deeply into the tea leaves of questions to guess what people are thinking, but it seemed like the Office was considering an unlocking exemption for a category of small, personal printers or users while not granting the exemption for larger commercial printers or users.  The Office’s follow up question asked participants if this sort of distinction was viable.

All three of us answered no, essentially making the same types of points: Professionals use lower cost desktop printers for work and everyday people use expensive “industrial” printers for fun (via services such as my employer Shapeways).  Printers can switch back and forth between what they print (or mix batches at the same time) and users can similarly switch what they are doing. 

At some level, all of us are making the same gamble: instead of tacitly accepting some sort of compromise from the Copyright Office where some printers get unlocked and others don’t, we are pushing the Copyright Office to make a real choice: either all 3D printers get an exemption or none do.  No legal distinctions that don’t make sense, no half measures.  Obviously, PK and I are pushing for the exemption while Stratasys is pushing against it, but our strategic thinking is probably similar. We’ll see in the next few months which gamble (if any?) pays off.

The Makerbot Twist

There has been a Makerbot subplot running through this entire proceeding, and the Stratasys response added another chapter.  Stratasys owns Makerbot and a significant amount of the discussion during the Copyright Office hearing discussed Makerbot specifically.

One of the things that I took from the hearing was that Stratasys was seriously considering adding DRM to their Makerbot line that locked Makerbots to Stratasys-approved filament. However, a week later the new Makerbot CEO (who, not incidentally, is also the son of the Chairman of Stratasys proper so presumably has deep ties inside the company) told Adafruit that he had no plans to DRM Makerbot filament.

Obviously the timetable is a bit compressed, but Stratasys’ response to the Copyright Office could have provided them an opportunity to clarify their plans with regard to Makerbot and DRM on the record.  The fact that they didn’t take that opportunity doesn’t inherently mean that they are being duplicitous (there are a million legitimate internal logistical reasons that the statement didn’t make it into the filing).  But it certainly does seem fair to note it as a missed opportunity.  The impression that Stratasys gave the Copyright Office was that the option to add filament DRM to Makerbot printers was important to them. This could have been a good opportunity to correct that impression, and it was one they did not take.


image credit: flickr user Mark Dumont.

After the hearing, the Copyright Office submitted an additional question about unlocking 3D printing.  The question was:

During the hearing for this class, opponents of the proposed exemption expressed concerns that parts made with substandard materials could enter the commercial supply chain and pose risks to the public, citing the example of airplane parts printed with substandard filament. The Office welcomes comments addressing whether an exemption could or should differentiate between “commercial” versus other types of uses and, if so, how those different categories of use might be defined.

The deadline, originally last Monday, was extended to today.  In part, this was because the Copyright Office was a bit slow getting transcripts of the hearings (which, it is worth repeating, they didn’t make easy for anyone to record and did not record themselves - not even by tapping into the soundboard!) up on their site.  My admittedly somewhat snippy answer is below.  I’ll update with a link to the PDF that has footnotes once they are up on the site. (edit 7/1: here’s a post with all three replies and a discussion of what they mean)


June 29, 2015

Jacqueline C. Charlesworth

General Counsel and Associate Register of Copyrights

United States Copyright Office

Library of Congress

101 Independence Ave. SE

Washington, DC 20559

Re:    Docket No. 2014-7

    Exemptions to Prohibition Against Circumvention of Technological Protection

    Measures Protecting Copyrighted Works

    Proposed Class 26: Software-3D Printers

Dear Ms. Charlesworth:

Thank you for your follow up questions.  It is unlikely that the Librarian could draw a meaningful distinction between types of 3D printer users without inadvertently including or excluding many users.  As such, I do not recommend differentiating between types of users for the purposes of this exemption.  Instead, the Register should recommend this exemption for all 3D printer users.

Blurring Distinctions

To the extent that there was ever a formal distinction between consumer and professional users of 3D printing, that distinction has long since eroded.  Even Stratatsys has positioned what may have once been considered a “consumer-oriented” printer - its Makerbot line - as a “prosumer” machine.  This move towards prosumer branding of lower cost printers was noted as early as 2012 - making it old in 3D printing terms - and has only accelerated since.

Indeed the existence of the prosumer - whether you see the term as a portmanteau of professional and consumer, producing and consumer, or proactive and consumer - serves to highlight the challenges inherent in drawing distinctions between users in the world of 3D printing.  Relatively low cost desktop machines are used in commercial and industrial settings everyday.  The e-NABLE community uses them to create production prosthetic hands.  Medical device designers use them to prototype designs and print anatomically correct surgical models.  In fact, Stratasys’ own Makerbot has an entire section of its website devoted to professional use cases for Makerbot printers.  Conversely, services such as Shapeways and Techshop make traditional higher end business machines available at a low cost to users focused on more personal, non-commercial applications.  

As the pace of innovation increases, even the functional distinctions between less expensive and more expensive machines begin to blur.  Technologies that were once only available in machines costing tens or hundreds of thousands of dollars are migrating into machines available for three or four figures.  The result of this is that any given model of machine is likely to be used by a broad spectrum of users for a broad spectrum of uses.  Even machine cost cannot act as a reliable proxy for differentiating between machines for commercial or personal users.

Attempting to draw distinctions based on what is being printed is no more straightforward.  An object can move from idea to prototype to final product on the same machine.  Indeed, some objects that begin as personal projects may evolve into commercially available products over time.  Similarly, a single object can contain elements printed on numerous 3D printers of varying levels of technical capability.

One of the advantages of 3D printing is that it blurs the line between prototype and final product.  Another is that it puts the production of finished, professional products into the hands of everyday users.  Without the need to retool between jobs, a single printer can easily begin the day printing personal trinkets and end the day printing components of a commercial product without ever changing the material used to print.  In fact, sometimes a single printer has batched jobs and is printing both at the same time.  

No Reason to Exclude the Commercial Supply Chain from the Exemption

Some non-copyright-related objections to this exemption request focus on the use of 3D printers specifically  in the commercial supply chain.  To the extent that the Copyright Office is considering those non-copyright-related concerns as legitimate in the context of this exemption evaluation, it would seem to be especially nonsensical to prevent participants in the commercial supply chain from using third party consumables in their printers.  

Setting aside the compelling reasons for all 3D printer users to be able to use consumables of their choice as they see fit, in many ways commercial supply chain manufacturers are the best positioned to evaluate the legal and safety ramifications of their preferred consumables.  As a group, such manufacturers are more likely to have the type of technical and legal expertise to evaluate the impacts of using third party materials in their production.  While this level of technical and legal expertise should not be a requirement to use third party consumables, it would be somewhat nonsensical to exclude the parties most likely to have such expertise from this exemption.

Industry-Specific Concerns Are Best Addressed Elsewhere

3D printers are general purpose machines.  That means that they can be used across industries for an almost unimaginably wide variety of purposes.  Because a single machine can print multiple objects simultaneously, one 3D printer can be used across multiple industries at the same time.

Opponents have raised speculative concerns about the use of 3D printing in specific industrial applications such as airplane construction.  With respect to the Copyright Office, such concerns are well beyond the expertise of this proceeding.  The Copyright Office and the Librarian of Congress do not possess the expertise to evaluate the potential threats raised by the use of third party consumables in the construction of airplane parts.  Nor do the Copyright Office or the Librarian of Congress have the expertise to evaluate the value of technological protection measures designed to protect copyrighted works in preventing the types of industrial sabotage described by opponents.

These types of concerns are beyond the scope of this proceeding in part because there are other parts of the Federal Government with a mandate to oversee them.  For example, in the context of airplane safety, nothing in this proceeding will undermine the Federal Aviation Administration’s mandate to protect the integrity of airplane parts.  Similarly, anti-counterfeit laws, product liability, and supplier contracts will remain intact to maintain the integrity of commercial supply chains.  None of these non-copyright-based protections hinge on the status of this exemption.  To the extent that the Copyright Office feels the need to evaluate these threats, it is noteworthy that no representatives of industries such as airplane manufacturing, or of the commercial supply chain more broadly, felt compelled to raise concerns about the proposal.

Concrete Benefits Outweigh Hypothetical Harms

While the Copyright Office and the Librarian are poorly positioned to evaluate airplane safety or supply chain integrity, both are well positioned to evaluate the impact that this exemption will have on copyright.  Viewed in that context, the concrete benefits of this exemption outweigh the hypothetical harms described by opponents.  Opening the door to consumable competition from third parties will have a direct impact on innovation in this field.  Competitors can take steps to compete directly with manufacturers to provide existing types of consumables, driving down prices and driving up quality.  Innovators can also move to bring new products to market, increasing what is possible with 3D printing.  Any user can retain confidence that owning a 3D printer means being able to decide what types of materials are used in it without threat of 1201 liability.

Balanced against these benefits are harms that stray far afield from the purpose of both copyright law and this proceeding.  By focusing on doomsday predictions related to supply chain integrity, opponents tellingly avoided raising concerns about infringement to their software.  Unable to credibly describe a concern related to copyright infringement, opponents instead fell back on speculative fears unrelated to copyright law.  The lack of copyright-specific harms raised by opponents should give the Copyright Office comfort in recommending this exemption to the Librarian.

In light of these factors, I respectfully request that the Register recommend that this exemption be granted for all users of 3D printers.

Sincerely,

    /s/

Michael Weinberg