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.

This post originally appeared on the Shapeways blog.

Last month Creative Commons hosted a meeting with members of the 3D printing community to discuss how Creative Commons licenses can continue to work well with 3D printed products and files.  Shapeways was thrilled to be included in the  initial meeting and our hope is that this acts as a catalyst  for a more impactful collaboration between 3D printing and Creative Commons.

The purpose of the initial meeting was for the community to gain a better understanding of how the Creative Commons licenses work with 3D printing today as well as identifying key areas for improvement moving forward. We have raised some questions about the dynamic between Creative Commons and 3D printing in the past, and part of the initial meeting was to revisit these topics with other groups.

While this was the first major Creative Commons and 3D printing meeting, we expect that it will not be the last.  The discussion was wide ranging and freewheeling, and it is probably safe to say that there are a number of opportunities for collaboration going forward.  This is an especially opportune time to begin the collaboration as Creative Commons is in the initial phase of a 5 year plan to reinforce and grow the Commons.

We will continue to discuss the collaboration as it evolves and the initial meeting was successful in helping us to flag a few key areas for focus.  Through discussion, attendees were able to confirm the areas of concern that were generalizable beyond one or two parties.  You can read Creative Commons’ debrief here.  Two of those areas, a micro and a macro, deserve mention here.

Micro-Challenge: Attribution

The question of attribution presents a specific challenge in the context of 3D printing.  It is a “micro” challenge in the sense that it is highly specific, but its impact can be widespread.

Fundamentally, the question is: what does it mean to give attribution in the 3D printing community (this was a large part of our earlier discussion about 3D printing and Creative Commons)?  When someone uses a CC-BY license, what do they expect that attribution to look like?

This question actually breaks down into two parts: attribution in the file and attribution in the object.

The file attribution part may be the most straightforward.  There are a number of new 3D printing file formats which are currently under development.  Many of these formats include the ability to attach specific license information to files.  With this capability, giving attribution may be as simple as adding (and maintaining) the correct metadata in a file.  While there are a number of implementation challenges, file metadata does at least appear to be the place to focus on for file attribution.  Building visibility for this feature among developers of new file formats goes a long way towards solving this problem.

Attribution in the object is less straightforward.  Some 3D printed objects integrate the designer’s name directly into their surface, making attribution automatic.  However, those cases are the minority.  For other objects, what is the best way to give attribution?  Thingiverse provides physical attribution tags, which can be great for displaying objects at trade shows or at galleries.  However, they may not work in other contexts.  For example, it is probably unrealistic to expect people to hang physical attribution tags from 3D printed bracelets or earrings.  Developing a system on how to handle these types of situations will take time and collaboration.

Macro-Challenge: Applicability of Copyright-Based Licenses

You can expect to hear a lot more about this issue going forward.  This concern is larger than 3D printing, although for various reasons 3D printing is an area that tends to throw it into stark relief.  Briefly, Creative Commons licenses are based in copyright.   However,  unlike the photos, movies, songs, and stories that formed the original core of the Creative Commons, not all 3D printed objects are eligible for copyright protection (this paper takes a deeper dive into why that is and what it means).  For those objects, the terms of the Creative Commons license are not enforceable.

The implications of this incompatibility are potentially far reaching, and the initial meeting was not the time to describe them all as other topics took precedent.  Even explaining the problem can be complicated, and one thing that we will be working on going forward are more and better ways to communicate this challenge to the community.

Keep an eye out for more to come soon. For now, we are excited to be developing a community of stakeholders who will drive the collaboration with Creative Commons to bring you the most valuable information.  We will continue to keep you up to date on these efforts and plan to invite community participation as these efforts expand.  Until then, please comment with any questions or concerns.

This post originally appeared on the Shapeways blog.

Imagine you are selling a porcelain coffee cup in your Shapeways shop.  It is a complicated piece with a complex handle and an intricate design on the outside of the cup.  The lip of the cup is also funkily askew.  After the cup has been selling for a few weeks, you get a letter informing you that – unbeknownst to you – the lip of your cup may infringe on someone else’s design patent.  If the letter is correct, what kind of damages should you have to pay to the person who owns that patent?  Should you have to pay them all of the profits you have made on the cup, or just the percentage of the profits that can be attributed to the lip covered by the patent?  Shapeways, along with Engine, just filed a brief with the U.S. Supreme Court urging them to get this rule right for 3D printing designers.

The U.S. Supreme Court is trying to decide which rule to apply in the context of a long running dispute between Apple and Samsung over smart phones.  Apple had a handful of design patents on elements of the iPhone such as its shape and icons, and accused Samsung of infringing on those patents.  Apple won the dispute, which meant that the court had to decide what damages Samsung should pay.

In regular utility patent infringement cases, infringement damages are generally tied to the value that the part of the object covered by the patent brings to the entire object.  So if, for example, a car company infringes on a patent for a bolt that holds the tire onto the car, the damages are proportional to the relative importance of that bolt to the entire car.  In other words, the fact that part of a car infringes on a patent does not mean that the patent holder gets all of the profit generated by the entire car.

However, a lower court interpreted the rules differently for design patents.  There are many elements of a Samsung phone that make it valuable for a purchaser that are totally unrelated to its rounded edges (for example, its ability to make and receive phone calls).  However, the court decided that because the Samsung phone incorporated elements that infringed on Apple’s design patents Samsung should have to give Apple all of the profits from the phone.  The U.S. Supreme Court is now trying to decide if that rule makes any sense.

What Does This Have to do with 3D Printing?

Although Shapeways designers do not sell smart phones in their shops (at least not yet….), they do offer many objects that could potentially be covered by a design patent.  That means that they could potentially be infringing on design patents – even on design patents they do not realize exist.  If and when that happens, it is important that the remedies for infringement are proportional to the value that the elements protected by patent bring to the final object.

In our brief, which was primarily drafted by Katherine McNutt and Hyosang (Mark) Kim of the Juelsgaard Intellectual Property and Innovation Clinic at Stanford University Law School, we argue that design patents should use the same sort of proportional damage system as the utility patent system. Just as someone who owns a patent in a bolt should not be able to recover the profits for an entire car, someone who owns a patent in a lip should not recover the profits for the entire cup.

Fundamentally, this sort of proportionality is the just result in disputes over complex objects that include many elements unrelated to a single design patent.  It also avoids problems where the first patent holder who sues recovers all of the profits, leaving any additional patent holders with limited options for recovery.

It also helps disincentive the creation of design patent trolls.  If a patent holder can lay claim on a designer’s entire profits simply because they own a design patent that may cover a small element of an object, the value of a design patent infringement claim increases exponentially.  The prospect of recoveries well beyond the value of the patent’s contribution to the final object could encourage the same sort of patent troll behavior that we have seen in traditional patents.

Although the brief was filed this week, it will be some time until the Supreme Court makes a decision in this case.  When they do, we’ll be sure to update you on the case and try to explain what the decision means for our designers.

Open source hardware traces its roots directly back to the open source software community. Despite these roots, hardware is very different from software.  As a result, while some of the norms of open source software port easily to the world of hardware, some are an imperfect fit.  One of the areas of imperfect analogy is in the world of licensing. Fundamentally, this is because open source hardware is not as completely wrapped up in copyright as is open source software.  As a result, open source hardware licenses generally lack one of the two major features of open source software licenses.

Software Licenses

Software is, as a category of work, eligible for automatic copyright protection the moment it is written.  As a result, software can be thought of as “born closed.”  By default, in most cases using (which requires copying) someone else’s software without permission violates their copyright.  In order to change this default state, creators of software use licenses to allow other to use their software without risk of a copyright infringement lawsuit.  Fundamentally, these licenses can be thought of as binding promises not to sue a user for copyright infringement as long as the user complies with the terms of the license.

These license serve at least two purposes.  For users, licenses clear the threat of a copyright infringement lawsuit by laying out clear rules of use. Users can be confident that as long as they follow the rules of the license, they cannot be sued for copyright infringement by the original author of the software.

For creators, licenses let the software out in the world while still allowing the creator to exercise some control over the software via license conditions.  The creator gives up some control over the software, but can be confident that future users are required to comply with whatever limitations incorporated into the license (be it sharing future work, buying the creator a beer, or whatever).  

The single license achieves both of these purposes: assuring users that they will be free of infringement liability, and assuring creators that future users will have to comply with restrictions that the creator cares about (this can also be thought of requiring future users to ‘follow the rules’).

Hardware Licenses

Unlike software, hardware is not completely protected by copyright. While some parts of hardware are eligible for copyright protection, many functional elements simply are not.  While they may be eligible for patent protection, since (unlike copyright protection) patent protection is neither free nor automatic, generally speaking many parts of hardware will be unprotected by any type of intellectual property.  This is especially true for open source hardware, where the creators are unlikely to elect to spend time and money obtaining patents on their goods.

In many ways this is a positive thing.  Unlike software, hardware is largely “born free” and does not require a license to make it available to the larger world.  This is the reason that you can legally hack hardware you own in a what that does not really have a parallel in the world of copyright.  However, this very freedom complicates open source hardware licenses because it makes them harder to enforce.

That does not make open source hardware licenses without value.  They can still accomplish the first purpose of open source software licenses, which is to relieve end users of anxiety related to IP violations that might occur with use.  To the extent that the hardware is protected by some sort of intellectual property rights (and many piece of hardware have at least some protected component that this would be relevant for)*, the license can give users confidence that using the hardware within the limits of the license will prevent them from being sued for infringement.

However, most open source hardware licenses are less good at achieving the second purpose.  As noted above, while many parts of any given piece of open source hardware may be protected by copyright, many parts will not. That is especially true for functional parts of the hardware.  Since these parts are not protected by IP, using them does not require permission from a rightsholder (because that rightsholder does not exist because there are no rights to hold).  As a result, there is no penalty for violating the terms of the license that purports to limit the use of these parts.

The outcome of this is that in many cases end users will be able to violate the restrictions that a creator places on a piece of open source hardware without fear of an infringement lawsuit.  In these instances, the open source hardware license has failed in that second purpose outlined above because they do not allow creators to control the behavior of downstream users.

Can This be Fixed?

To give a lawyerly answer, that depends on your definition of “fixed” is.  One way to fix this problem would be to make it easier to get some sort of IP protection on hardware.  That would make it more likely that licensees would be able to enforce the terms of their licenses. However, because the law works for everyone not just people doing open source hardware, any expansion of IP protection on hardware would also be used by people who don’t care about openness to make hardware more closed.  As I’ve written a number of times, it would be tragic if the legacy of open source hardware was to make hardware more closed.

The other way to fix this problem is with education.  The inability to impose conditions on end users is only a problem if creators have the expectation that they can impose conditions on end users.  That expectation creates a likelihood of frustration for creators who think that a bad actor is violating their license, just to find out that their license does not really apply.  However, if creators understand the purposes and limitations of open source hardware licenses, that expectation can be eliminated (or at least reduced) and the problem is essentially resolved.

That’s the direction I’m inclined towards.  Admittedly it requires altering norms and expectations that have been built up by open source software for decades.  However, it won’t be the the only time that open source hardware has to alter some of what it inherits from open source software.  

*This highlights a second major educational challenge around open source hardware. With open source software, teaching people about IP is fairly easy: they can assume that all software is protected by copyright. Hardware is much more complicated.  While any given  piece of hardware is likely at least partially protected by copyright, what that copyright actually covers will be somewhat idiosyncratic to the hardware itself.  As a result, it is going to be hard to develop everyday rules of thumb for what open source hardware licenses really do and do not control.  I’m hopefully that at some point a taxonomy of some sort will emerge, but that probably won’t happen anytime soon.