News broke today that there was a decision in the case that Defense Distributed is bringing against the State Department related to putting files for 3D printing and CNC milling guns online.  While this is a decision on a preliminary question that largely punts on the super-interesting parts of this case, it still has a few noteworthy elements.

As a quick bit of background, Defense Distributed released some files for 3D printed guns online. The State Department sent them a letter telling Defense Distributed that under the State Department’s interpretation of export laws known as ITAR, Defense Distributed had to pre-clear the posting of such files with State. The theory is that posting the files on the internet is the same as exporting them to foreign nationals.

While complying with State’s request, Defense Distributed sued the State Department over their interpretation of ITAR, claiming that the interpretation was unconstitutional.  Before getting to the real heart of the case, Defense Distributed asked the court to suspend the State Department’s pre-clearance requirement until the matter was resolved.  It is that request – which took the form of a preliminary injunction request – that resulted in the decision this week.  That means that the decision today is not about the larger questions surrounding files as free speech, what qualifies as “exporting” a digital thing, and when information becomes a thing.

The arguments around the preliminary injunction can be summarized quickly.  Defense Distributed said that imposing a prior restraint on its ability to speak (in the form of releasing files) infringed on its First Amendment rights (among other things).  The State Department said that releasing files online harmed national security.

The majority opinion essentially took the claims of both sides at face value.  Defense Distributed had Constitutional rights that could only be infringed upon in important circumstances.  The State Department was showing a circumstance which, if it prevailed at trial, could very well be important enough to justify infringing on those rights.

The majority was swayed because of what it saw as the long term impact of those harms.  If Defense Distributed turned out to be right, the harm caused by preventing it from posting the files online could be remedied at the end of the trial (and its appeals….) by allowing them to post the files online (note: it is probably safe to say that this is not a universally accepted theory of how to remedy the harms related to prior restraint).

However, if the State Department turned out to be right, the harm caused by temporarily allowing Defense Distributed to post the files online could not be reversed.  This is because once a file is online it is online forever, even if Defense Distributed took them off the Defense Distributed site.  On this narrow point, this is a refreshingly clear-eyed understanding of how the internet works from a court.

As a result of this balancing, the majority sided with the State Department and declined to allow Defense Distributed to post the files pending the resolution of the case.

The dissenting opinion took a very different view. I suspect that, while Defense Distributed would have preferred to win this round, they are at least happy with the fairly long and detailed dissent opinion.

Instead of taking the State Department’s claim that posting the files online negatively impacts national security at face value, Judge Jones’ dissenting opinion interrogates the claim and finds it sorely lacking.  It questions the constitutionality of the ITAR framework generally, and rejects the way that the State Department interprets it in this case specifically. After undermining the State Department’s argument over the course of a number of pages, it is unsurprising that the opinion sides with Defense Distributed’s constitutional claims and argues in favor of its ability to post the files online.

This opinion may very well be appealed. If it is, the full 5^th Circuit will have to decide which analytic approach to take, and then how that approach applies. Even when that process is over, the parties will have to go back and actually argue the heart of the case (which, regardless of your opinions about gun control, 3D printing, free speech, and export control law, raises some interesting questions).  In other words, this decision is one among many before all of the questions are answered.

That being said, the opinion is an interesting window into how courts will approach the many potentially complicated legal questions connected to this case.  Since Defense Distributed has partnered with the Second Amendment Foundation to pursue this case, there is actually a reasonably good chance that that the case will last long enough to get some of them answered.

A designer releases a new 3D printable shoulder rig for cameras under a Creative Commons Attribution license.  It quickly becomes wildly popular in the film world.  

A company copies the rig but fails to give the original designer credit as required by the Creative Commons license.   

An internet freak out erupts.  

The company defends itself by pointing out that the Creative Commons license is not legally binding because the rig is not protected by copyright.  Upon investigation, the internet realizes that the company is right.  Legally, the license isn’t worth the pixels used to display it on the screen.  

Weeks later, another designer releases a circuit board under an open hardware license.  

Another company integrates the board into its new product, ignoring the restrictions on the license.  

The designer of the original board tweets a complaint and a new internet freak out ensues. Once again, the company defends itself by pointing out that hardware is not protected by copyright, rendering the license legally irrelevant. 

The internet starts calling all open licenses into question.

Prefer this article in french? Olivier Chambon has you covered.

The world is an incalculably richer place because of the open source software movement and Creative Commons (collectively, for the purposes of this post, OSS/CC).  It is probably safe to say that OSS/CC has succeeded well beyond the wildest dreams of its early proponents, and has touched areas of society that would have been impossible to imagine when the concepts were being developed. Nothing that follows here diminishes that success.

However, as they become more popular, OSS/CC licenses are starting to be stretched beyond their originally intended scope.  That stretching could ultimately lead to large tears in the licenses and the communities that have grown up around them.

These tears appear because as the use of OSS/CC licenses expands, they are being applied to works that technically, legally, they were never designed to be used with.  In many of those cases, the licenses stop being legally enforceable at all. This lack of enforceability may eventually reduce user confidence in OSS/CC and the vibrancy of the OSS/CC community. 

To be fair, the problem described in this post falls squarely into the “good problems to have” category. After all, the tears only exist because OSS/CC has become so wildly successful that the ethos they embody is spreading well beyond their originally envisioned scope.  

That being said, the tears are real.  At some point soon the “open” community (broadly defined) will have to come to terms with them.

OSS/CC has overflowed its original purposes. image: flickr user zoetnet CC-BY 2.0.

Fundamentally, these tears occur when the conditional sharing ethos of OSS/CC expands beyond the scope of what is actually protected by copyright.  Without copyright, the conditions baked into OSS/CC become legally meaningless.  The “stick” that backs them up disappears.  

While I wish I had answers, this post is not intended to resolve all of the questions raised by OSS/CC spilling beyond their original boundaries. Instead, it is designed to help raise and frame the questions.  It tries to explain what is going on, and to outline the potential consequences of the continued informal drift in the current direction.  It also touches on some alternative approaches, none of which are perfect.  While this post does not include a tidy resolution, hopefully it is a useful step in the collective process of working everything out.

Sharing “Born Closed” Works

Broadly speaking – and this entire post is going to be “broadly speaking” – OSS/CC were created to solve a specific problem created by copyright law.  Copyright law automatically protects everything that is categorically eligible for protection.  That means that things that are protected by copyright – software for OSS; music, movies, photos, and articles for CC – are “born closed.”  

By default, digitally sharing born closed works created by someone else violates copyright law. That is because sharing works digitally involves making copies.  Making copies of a work protected by copyright (in most cases) requires permission from the original creator in order to avoid infringing on the creator’s copyright.

Things like books and records are “born closed” and automatically protected by copyright. image: flickr user Michael Cory CC-BY 2.0.

That means that if you create software or music or movies and want to share it with the world, you need to take affirmative steps to give other people permission to use the work. The easiest way to do this is with a license.  “I won’t sue you for sharing this” licenses make up the legal core of OSS/CC.

(With Strings Attached)

Of course, most OSS/CC licenses are not simply promises not to sue people who share the content.  Many of them pair their promise not to sue with a condition.  That condition is something that the open community views as a social good – “give the creator attribution,” “make the source code freely available,”  “buy the creator a beer” – but that condition still serves as a limitation on sharing.  

Within the world of copyrightable stuff, these limitations are enforceable because failing to follow them voids the license.  And without a license, the now-unauthorized sharing is a violation of the creator’s copyright. Among other things, this has allowed to OSS/CC community to impose its ethos on people who do not care about openness. Threat of a copyright lawsuit means people and companies who just want to access the shared stuff have to play by the openness rules too.

The upshot of this situation is that OSS/CC trained a lot of people to share, but to share conditionally. This conditionality was (and is) important to creating a commons: it gives people confidence in sharing and makes them feel like they are entering a community with reciprocity.  Conditional sharing has created an unbelievable rich commons of code, art, and expression.

When they are used for works protected by copyright, OSS/CC licenses are more than polite requests - they are legally enforceable. 

This entire system works because it just so happened that the types of things that were relatively easy to create and share with a computer and an internet connection – code, photographs, songs, movies, blog posts – also happened to be the types of things that are automatically protected by copyright.  That made the entire framework more than just a cultural norm relevant to a community of people – it was legally enforceable.

As they built the commons, people internalized the “share with conditions” model as normal.  They did not necessarily appreciate that the conditions were all linked to copyright, or that copyright has limits as to what it can protect.  In part, they did not realize this because the limitations were not relevant – everything at the core of the commons was protected by copyright so copyright’s boundary did not matter.

Shift and Expansion into “Born Open”

That is no longer the case. A number of technical and cultural changes have begun to bring works outside of the scope of copyright into the commons discussion.  This is a testament to the success of OSS/CC – the commons are so rich and the norms so appealing that new communities naturally align themselves with it.

The OSS/CC party is getting bigger. image: flickr user  Mikey Wally CC-BY-NC-ND 2.0

Instead of being organized around “born closed” works protected by copyright, some of these communities are organized around “born open” works that are categorically outside of the scope of copyright.  The two highest profile (or at least the two I’m most familiar with) are the open source hardware community and the 3D printing design community.  

Neither of these communities are fully outside of the scope of copyright.  Some parts of any given open source hardware project may be protectable by copyright, and many 3D printed objects are protected by copyright. However, the functional parts of an open source hardware project and more utilitarian 3D printed objects are beyond the scope of copyright protection (you can just accept that distinction for the purposes of this article, but there is more information on it here and here).  That means that blanket assumptions about copyright protection, and licenses that are built on a foundation of copyright protection, do not apply as cleanly to born open objects (more about that here).

As a result, on some level and in a non-trivial number of cases, using copyright-based licenses for works in these communities is inappropriate.  While they may look the same as the licenses on software or photographs, in a significant number of cases they will not be legally enforceable. At the same time, they are there for both creators and users to see, and to take into account.  They also may carry cultural weight.  That being said, the space between the licenses’ visibility and enforceability creates costs (and benefits).  

The Costs and Benefits of the Current Path

To be clear, this evolution is happening right now and is actively altering the status quo around copyright and licensing.  That means that ignoring this evolution and pretending it isn’t happening is a vote for this shift to keep happening.  Doing something may be a vote for a different kind of shift.  But, as far as I can tell, there is no vote you can cast to maintain the status quo.  The only decision is between which different future you prefer to work towards.

A number of things that I would classify as negative happen if people continue to apply copyright-based licenses to works that are not protected by copyright:

• Creators’ expectations are not met.  If a creator releases a work under an OSS/CC license, on some level they expect to be able to enforce the terms of that license against someone who violates it. However, if the work is not protected by copyright the terms of the license are not enforceable.  As a result, there is likely to be a high profile instance of an OSS/CC license “failing” to protect a work from being used in a way that violates the original creator’s hopes.  The story will appear to have a “good” creator with a sympathetic story and a “bad” violator who acts in a villainous, obnoxious way.  However, the good creator will be trying to enforce rights they do not have and the bad violator will not have broken any legal rules. Everyone will be sad that the bad violator can’t be punished and people will start to worry about using OSS/CC licenses.

• Legitimate usage is curtailed.  The conditions in any OSS/CC license are restrictions on use, and those restrictions disqualify some people from making use of the work.  If the license used is not valid, the restrictions it attempts to impose on unwilling users are not legally enforceable.  Regardless, there will be some number of end users who 1) want to use the work in a way that violates the terms of the license, and 2) do not realize that the license does not legally prevent them from using the work anyway.  That means that some legally allowed uses never happen.
  

• Copyright creeps outward.  There is a deep irony in this one.  Regardless of their real enforceability, if people continue to use and see OSS/CC licenses on works that are not eligible for copyright protection they will begin to assume that copyright actually protects those works.  They might even advocate for copyright to protect the works in order to make the licenses enforceable.  The outcome of this is that OSS/CC licenses – licenses designed to increase the pool of commonly available works – could act to reduce the pool of commonly available works by dragging currently open works into the world of copyright.  This process could take the form of resetting social expectations or, perhaps even more problematically from the viewpoint of the OSS/CC community, actually be used to change the statutory scope of copyright itself in an effort to make the licenses apply to more works.
  

There is also a potentially positive effect of this type of license use:

• Signals for use.  The wishes of creators can be legitimate even if they are not legally enforceable.  To that end, OSS/CC licenses can be signals to users about how creators of a work want it to be used.  There are plenty of non-legal reasons for a user to want to respect these wishes, and using standardized ways to communicate those wishes can make it easier to do so.  
  

And one that could be argued either way:

• May encourage more sharing.  For some creators who are not naturally inclined towards sharing, using an OSS/CC license gives them enough of an assurance of control to convince them to make their works available to others.  You can see this on how some people evolve from more-restrictive to less-restrictive licenses over time as they become more comfortable with the idea of sharing.  The positive version of the use of these licenses on non-copyrightable work is that more formerly private works will be released into the public for others to see. The negative version is that the creators will be mistaken with regards to the terms those works are released under. I withhold judgment on how those two factors balance out.
  

There are some ways to address these effects.  None of them are perfect, or even necessarily good ideas.  

• Expand copyright or create a new easy-to-obtain right.  The problem described here is rooted in the fact that many works are not automatically protected by copyright or some other easy-to-obtain right which can be used as the legal basis for a license.  One way to solve it is to expand the scope of copyright or create a new easy-to-obtain right that serves a similar purpose. While doing so would solve the immediate issue with license enforceability, it creates many more and is a horrible idea.  Converting the universe of “born open” works into “born closed” just to make it easier to openly license them strikes me as counterproductive. Also, while some of the creators of these newly born closed works might license them openly, others would likely use the new rights to restrict what today would be a free and open creation.
  

• Public Education.  I want to think that this alone can solve the problem. If people really understand when to appropriately use copyright-based licenses, this problem disappears.  While I believe strongly that public education is a key component of addressing this problem, I’m also realistic enough to know that there will always be a massive pool of people who have better things to fill their brains with than the nuances of copyrightable subject matter. Any solution has to work for those people too.  That means we need more than public education.
  

• Create New Licenses.  If copyright-based licenses don’t quite cut it, why not draft new licenses that do? Because – like creating secure encryption that also allows the government to freely access the protected files – doing so is a lot easier said than done. Copyright is a great basis for a license because eligible works are protected automatically and without cost. People do not have to do anything to get copyright protection.  All of the other obvious hooks for other licenses – like patent and trademark – require time, money, and affirmative decisions to obtain.  Even if some people will take the time to obtain them just to make it easier to license their work under OSS/CC, those people will never reach a critical mass or majority.
  

• Stop Using Licenses.  If current licenses do not protect all of these new types of works, should people just stop using them? Unfortunately, that’s not a great solution either. While many works will not be completely protected by copyright, many parts of many works are.  The analysis of which parts of which works are protected by copyright is somewhat work-specific (because nothing here is easy), but it is safe to assume that many works will be just protected enough by copyright that copyright could present a barrier to some types of reuses.  To the extent they exist for a given work, OSS/CC licenses can clear those copyright-based barriers to sharing.
  

• Contracts.  Contracts can serve as an alternative to licenses.  While OSS/CC licenses rely on copyright to be enforceable, contracts can just rely on the agreement of two people.  The creator offers the work to a user on the condition that the user agrees to the terms. If the user breaks the terms she has agreed to, she is breaking the contract with the creator.  The problem with contracts is that they can only be enforced against someone who agreed to them.  That is always going to be a comparatively small universe of people.  Whether they like it or not, everyone is required by law to respect a copyright. That means that the person who receives the work directly from the creator may be limited by the terms of a contract, but the people who stumble upon it on a random website would not be.  This global enforceability is what makes copyright law so attractive for licenses. Its absence severely limits the usefulness of contracts as a substitute at scale.
  

Decision Time

The status quo is changing. OSS/CC licenses are expanding beyond the universe of clearly copyright-protected works that they were originally designed for.  That is a testament to 30+ years of community building in the open community.  It also creates challenges.  Ideally this is the point in the post where I would describe a clear path forward and advocate for following it.  Unfortunately, I don’t have that path (yet).  All I have is a phenomenon that I believe is occurring and a series of ways the world is accommodating it.  

Fortunately, the open world is strong because it is collaborative.  I’m already working with Creative Commons and other stakeholders to try and find some answers.  Hopefully this post will pique the interest of others to join in.  If it has (and let’s be honest - if you made it all the way down here it probably has) let me know.  

Bonus: One thing that is connected enough to mention in a bonus but not so connected as to be worth integrating into the heart of the post is the history of the Open Game License.  For all of its differences, it is another example of communities looking to licenses for openness where they probably didn’t quite fit and were not necessary.  I won’t pretend to be an expert on the details of that community or the politics connected to all of it, but this article on it made a lot of sense.

top image: flickr user Nick Normal CC-BY-NC-ND 2.0.

This post originally appeared on the Shapeways blog.

This may be one of our last blog posts about Star Athletica v. Varsity Brands, the cheerleader uniform case we’ve been writing about since last year.  As you may recall, while nominally about copyright and cheerleader uniforms, the case is really about how copyright protects objects that combine decorative elements and by contrast, does not protect functional elements.

Since so many 3D printed objects combine both decorative and functional elements, this is an important question for the 3D printing community.  Conversations about licensing 3D printed objects cannot happen until everyone understands the types of rights that actually protect those objects.  Right now there are at least ten different tests geared towards figuring out if and how copyright might protect an object that is both functional and decorative.  Unfortunately, this situation has not yet proven to be helpful.

Fortunately, the U.S. Supreme Court will have the opportunity to settle on one test soon.  In February weurged the Supreme Court to take a look at this case, and in May it decided to do so.  Late last week we, along with the International Costumers Guild, the Open Source Hardware Association, Formlabs, Printrbot, the Organization for Transformative Works, the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries joined a brief written by Charles Duan andMeredith Rose at the public interest organization Public Knowledge.   Although the brief does not push for a specific test, it does ask the Court to select a single test that is clear and easy for the greater community to understand.

In the next few months the Court will schedule oral arguments in the case.  After that – probably next year – an opinion will be declared.

We will be sure to keep you posted as events unfold.  In the meantime, you can read the brief here.  In addition to the substance, you should take a moment to appreciate the font that Charles designed exclusively for Supreme Court briefs – exceedingly rare among lawyers – to master the inclusion of imagery in legal briefs.

This post originally appeared on the OSHWA blog.

One of the things that makes open source hardware licenses hard is that – unlike software – it isn’t always easy to determine what parts of a product (if any) are covered by copyright. Since traditional open source licenses rely on copyright to make them enforceable, understanding how copyright applies to a piece of open source hardware is the first step in deciding how you might want to license it.

Finding copyright can be complicated because it protects creative and decorative works (including code), but not functional items.  Pieces of open source hardware often combine both creative and functional elements.  This makes it critical to understand how to break out the copyright-protectable parts from the non-copyright-protectable ones.

Unfortunately, today in the United States there are at least ten different and somewhat contradictory tests to guide that process.  That makes it hard for copyright experts to draw the line between copyrightable and non-copyrightable, and essentially impossible for everyone else.

That’s why OSHWA joined the International Costumbers Guild, Shapeways, Formlabs, Printrbot, the Organization for Transformative Works, the American Library Association, The Association of Research Libraries, and the Association of College and Research Libraries on a brief written by Public Knowledge in the Supreme Court case Star Athletica v. Varsity Brands.  While the case is nominally about cheerleader uniforms (really), it boils down to a simple question: which test should be used to separate out the copyrightable and non-copyrightable elements of an object that includes both?

The brief does not advocate for a specific test. Instead, it simply urges the Supreme Court to pick a simple, easy to understand test. That clarity alone would be a huge benefit to the entire open source hardware community.

Although we are filing the brief now, the Court’s decision probably won’t be until next year.  Once it comes out, we’ll do our best to explain what it means for the entire open source hardware community.

This post originally appeared on the Shapeways blog.

Shapeways has long been a supporter of Net Neutrality, so we were happy to be able to join a letter from the European startup community in favor of strong open internet rules in the EU.

Shapeways started in the Netherlands and has continuously relied on a neutral Internet to reach our customers. To the same extent, the Shapeways community uses the open internet to connect with other members and customers around the world.

Fundamentally, our letter asks the EU not to weaken net neutrality rules with loopholes.  Regardless of whether they are called  ”specialised services,” “data cap exceptions,” or “class-based traffic management,” loopholes that allow ISPs to pick winners and losers undermine the core ideas of net neutrality.

All of this and more is why we join the call for strong net neutrality rules in the EU.  We will be sure to let you know what happens as this process develops.