[edit 2/20/16: After getting more specific information about Just 3D Print’s legal arguments I addressed them point by point here.]

For better or worse, I need to open this post with a disclaimer. This post comments on a dispute on thingiverse that involves thousands of models.  It is not legal advice, and the legal analysis for any individual model may turn on facts specific to that model.  In light of that, if your models are directly impacted by this dispute you should consider talking to a lawyer before taking any specific action.  OK, on to the post.

This post is about a dispute on thingiverse first raised (to my knowledge) by thingiverse user loubie. Here’s her post, and I recommend taking a look before reading on. It is short and gives all of the context, although I’ll try and summarize below.  The dispute turns in part on what I interpret to be a misunderstanding of how copyright in CAD files works.  Since I’ve written a bit about this sort of thing with an emphasis on the limits of copyrightability in CAD files it seemed worth jumping in.  The tl;dr version is that right now it is very hard for me to see the justifications offered by the alleged infringer as being valid.

Background

Loubie has alleged that ebay seller just3Dprint pulled around 2 thousand models and associated images by multiple designers from thingiverse to sell on an ebay store.   Just3Dprint is allegedly doing this without permission of the designers and, at least in some cases, in violation of the terms of various CC licenses on the models. [edit 2/20/16: I have confirmed from Just 3D Print that they are using the models as described and that the arguments being put forward are theirs.] When Loubie reached out to just3Dprint she received a response that deserves to be quoted in its entirety: 

“When you uploaded your items onto Thingiverse for mass distribution, you lost all rights to them whatsoever. They entered what is known in the legal world as "public domain”.

The single exception to public domain rules are “original works of art”.

No court in the USA has yet ruled a CAD model an original work or art.

Therefore, you have no right to exclude others from utilizing the CAD models you have uploaded.

Furthermore, if in the future we do get a precedent in the USA for establishing CAD models as “original works of art”, we would still likely be just fine as we are not re-selling your CAD models, but rather “transformative” adaptions of them in the form of 3D printed objects. 

SFE

P.S. When you created these CAD files, did you really want to limit the amount of people who could enjoy them to the 0.01% of the USA with a 3D Printer? 100% of America can purchase the items from us at a reasonable cost and enjoy them-creating made in the USA jobs in the process as well. Furthermore, if you hate the idea of people profiteering from your work, you may want to take it up with Makerbot/Stratasys who only hosts Thingiverse for AD revenue, to sell more 3D printers.“

For the purposes of this blog post and to analyze the issue, I’m going to assume that all of these allegations are true and that the models and images in question are licensed under a variety of CC licenses.  Let’s break down why this response is wrong.

Copyright in CAD

I’ll admit that this case has given me a bit of pause in how I talk about CAD and copyright. In at least two whitepapers on the topic (and probably other blog posts and speaking opportunities), I have tended to focus on the “legally interesting” cases of a CAD file that represents an object that is not itself eligible for copyright protection (think a purely functional object like a screw or mechanical part).  I have done this because cases where the object being modeled is categorically eligible for copyright protection (think a statue or other artistic work) are much easier to deal with.  The model is protected by copyright, in its CAD form or any other tangible form.  Case more or less closed.

To say it slightly differently, in most cases questions about an independent copyright in a CAD file is only interesting if there isn’t already a copyright in the model itself.  If the subject of the model itself is protected by copyright, the fact that the model is depicted in a CAD file does not remove copyright protection.  When I write about CAD copyright, I’m usually doing it in the context of using copyright in the CAD file as a fallback when copyright in the model itself isn’t available.  In those cases I am highly skeptical of essentially adding copyright protection where it does not usually exist merely because it is is depicted in a CAD file.  

But for many of the models featured on the ebay shop, that skepticism doesn’t matter.  The underlying model is protected by copyright.  Which means the model is protected by copyright even if it is contained in a CAD file, the same way that this blog post is protected by copyright even though it lives as some HTML in your browser.

If the Model is Protected by Copyright, a Copyright License is Binding

Admittedly, I’ve written about how Creative Commons (CC) licenses can sometimes be complicated in some 3D printing contexts.  However, that complication is limited to challenges with giving attribution to a physically printed object.  What is not complicated is if CC licenses can be applied to 3D printable objects, or if their terms are enforceable.  That answer is clearly yes if the model itself is protected by copyright.  To repeat, CC licenses can be applied to 3D models that are protected by copyright.

Furthermore, attribution is easy if you are selling a model on a website. You can just provide a name and link to the designer in the description.  That makes my concern much less relevant in this context.  The non-commercial restriction is also as valid in the 3D printing context as it is in any other.

What does this mean?  If you have a copyrightable model and someone is using it in violation of the license you attached to it, that someone is likely infringing on your copyright (unless the use is protected by something like fair use).  If a seller on eBay is infringing on your copyright, you can report the violation to eBay.  eBay has a policy that a repeat infringer will also be removed from their marketplace.

What About the Photographs?

The above analysis mostly focused on models and files.  However, the allegations include that just3Dprint took photographs of models from thingiverse pages without permission.  Regardless of the copyright status of the models or the files, in most cases the photographs will be protected by copyright.   I’ve always thought that it was a bit unclear if the CC license on a thingiverse page applies to the photos as well as the model.  However, there are basically two choices - either the photo is covered by the CC license or it is not covered by the CC license.  If it is covered, the license means that a random third party can use the photo as long as they comply with the terms.  If it is not covered, a random third party cannot use the photo at all (again, subject to fair use) because it is not licensed at all to them.  Neither of those is permission for a random third party to use the photo as they see fit.

Two More Things

License to Thingiverse is not a license to everyone

In the response, just3Dprint suggests that uploading the model to thingiverse somehow puts the model in the public domain and that the uploader loses all rights to the model.  This is false.  For one thing, if it was true, the CC license wouldn’t matter - things in the public domain are free from copyright protection and therefore licenses don’t matter.

More importantly, what?  The thingiverse Terms of Use are pretty clear (see section 3.2).  By uploading a model to thingiverse you are granting rights to thingiverse.  You are not granting any rights to third parties that are not thingiverse, nor are you dedicating your model to the public domain.  Granting a license to one party does not prevent you from granting a different license (or not granting a license at all) to another party.  That’s why the fact that HBO is allowed to stream Max Max to its subscribers online doesn’t give me the right to steam Mad Max to anyone I want online.

Printing a 3D model is not usually going to qualify as a transformative use

just3Dprint claims that even if the models were protected by copyright, printing and selling them would not violate copyright because doing so is a “transformative adaptation.”  Honestly, I have no idea what this means.  Transformation is often part of the first prong of a fair use analysis (good overview of how this works here) and, to simplify things almost beyond recognition, often focuses on adding something new to the work (a viewpoint, a context, or things like that).  While there are always interesting discussions to be had around transformation and fair use, it is hard to imagine that simply downloading and printing 3D models without any additional context would qualify as transformative in a fair use analysis.

—-

To summarize: assuming that the facts as repoted by loubie are accurate, I think it is safe to say that I’m skeptical of just3Dprint’s claims.  There are situations where just3Dprint may not need the permission of a designer to reprint and sell a model uploaded to thingiverse, but none of the justifications offered feel legitimate to me or seem to address those situations.  I may be wrong, or convinced otherwise, and new information may come out.  If any of that happens, I’ll do my best to update this post.

This post originally appeared on the Shapeways blog.

Yesterday Shapeways joined with Formlabs and Matter and Form to ask the U.S. Supreme Court to bring some clarity to the rules that govern copyright and 3D printed objects (among many other things).  In a brief prepared by Sydney Lakin and Bill Koch at Stanford Law School’s Juelsgaard IP and Innovation Clinic, we urged the Court to settle on a single test for determining which parts of some 3D printed models can be protected by copyright.

The case is the same one I blogged about last year regarding cheerleader uniforms.  The real issue at stake – which is larger than either cheerleader uniforms or 3D printing – is how copyright law should handle objects that mix copyrightable and non-copyrightable elements.

Briefly, purely decorative and non-functional objects (like StuffBySteve’s snowflake ornament) are eligible for copyright protection.  Purely functional objects (like leegreen’s No. 50 Tripod Clip) are not eligible for copyright protection.

The question arises when a 3D printed object incorporates both decorative and functional elements (like Gijs’ birdsnest eggcup above). If you extend copyright to the entire thing, you are using copyright to protect functional objects (that’s bad).  If you exclude it from copyright entirely, you are taking protection away from decorative elements that may be eligible for it (also bad).

The theoretical way to deal with this conflict is to try and separate out the functional and non-functional elements and only grant copyright protection to the non-functional ones.  In practice, we currently have 10 different tests to govern the separating.  As you might expect, these 10 different tests floating around make it hard to know exactly what is protected by copyright and what is not.

Fortunately, this sort of “too many conflicting tests trying to answer a legal question” is exactly the type of situation where the Supreme Court is designed to shine.  This case gives them the opportunity to settle on a single, nationwide test for how to think about mixed functional and non-functional objects.

That’s precisely what we are asking them to do with this brief.  At this stage, we are not even advocating for one test over the other. While some tests are better than others, we feel that the most important thing is to have a single test that everyone can rely on.

What happens next?  This is the stage in the process where parties are asking the Supreme Court to take a look at their case.  Many more cases ask for review than are ever reviewed, and the Supreme Court is mostly free to pick and choose to hear whichever cases it wants to.  If the Supreme Court decides to hear the case there will be an opportunity to weigh on the substantive questions presented by it (as opposed to just weighing in that the Supreme Court should take the case).  That is followed by oral argument and, eventually, a decision.

That’s obviously a lot of steps between now and a final resolution. Regardless of what happens, we’ll keep you up to date.  If you have any questions, don’t be shy about jumping into the comments.

Let’s start this post off with a massive lawyerly caveat.  Every software license is different and your specific license and situation probably has details that impact this analysis.  Because of that, this post is not legal advice.  Instead, it is mostly a thought experiment to try and spot some legal issues. So if you are worried about your own exposure to liability you should talk to a lawyer that actually understands your situation.  Also, this is my opinion and not the opinion of the Open Source Hardware Association.  That being said….

Let’s say you are in a university setting.  And let’s say that setting gives you the good fortune of having access to some expensive software packages that can be used to design open source hardware. Can you even use that software to design open source hardware?

Wait, what?  Why is this even a question?

Educational software licenses often include a non-commercial restriction.  On its face, this restriction appears to be reasonable.  The software is sold with the understanding that it will be used in an educational setting for educational purposes.  Students get access to powerful software, but if they want to start a business they need to pony up for a full commercial license.

Why would using this educationally licensed software to create open source hardware be a problem, even if you had no intention to sell the resulting hardware?  

The fifth principle of the open source hardware definition is free distribution, specifically that the license used “shall not restrict any part from selling or giving away the documentation.”  The eighth principle is no discrimination against fields of endeavor, including not restricting the hardware from being used in a business.  

The result is that if you put documentation for your open source hardware project online, you are by definition allowing people to use the project commercially.  To put it another way, you are failing to limit the use of that project to non-commercial situations.  

Arguably, that means that you are using your educationally licensed software knowing that the result can be used commercially – even if you have no intention of using it commercially.  And that may very well mean you are violating the terms of your license.

The Two Key Infringement Questions

Whenever you are thinking about infringement liability, it can be useful to think about two separate, but related, questions: 1) are you infringing?, and 2) if yes, is it likely that you will be sued? We’ll take these in turn.

As to the first question – are you violating the license and therefore infringing on the software owner’s copyright? – the answer will turn on the actual text of the license.  However, it is certainly technically possible.  A commercial restriction is likely to be written in a way that basically says “you can use this software as long as you aren’t doing it in connection with a commercial purpose.”  The implication – and depending on the wording of the license it may be more than implied – is that you have to avoid any commercial uses of what you are doing with the software. That means taking reasonable steps to prevent the program’s output from being used commercially.  Since open source hardware explicitly avoids taking such steps, opening up your project could very well violate the terms of your license.

Of course, there are two questions, not one.  Once you step away from the world of theoretical legal blogging and into the real world, the second question is arguably more important than the second one. 

While the answer to the first question may very well be “yes,” the answer to the second question – are you likely to be sued for your violation – seems likely to be “no” in most small open source hardware cases. Mostly, that is because it is hard to think of a way in which it would be in the software  owner’s interest to go after someone who merely licensed a project as open source hardware.  Doing so would endeavor ill will in the open source hardware community and make even people in educational settings a bit less comfortable using the software package out of fear they might step across a licensing line by mistake and get sued.

That would change if the designer started selling the project commercially – such activity would arguably violate both the spirit and the text of the license.  It would also change if someone was pretending to put files online for anyone to use, knowing that their partner would pull them down to start commercial production.  But if the creator is just putting the files online and not restricting anyone else from exploiting them commercially it seems unlikely that the software company would go after them.

Unfortunately, a “highly unlikely to actually be sued” conclusion to a hypothetical license analysis is only worth so much.  It would be great to see software companies come out and publicly embrace open source hardware, even if created on educationally licensed software. It might be hard to get it through their legal department – crafting an open source hardware exception that does not turn into a massive loophole for bad actors isn’t trivial – but many of these companies have big legal departments full of smart  lawyers.  Making it clear that users are free to use their educationally licensed packages to contribute to the rich open source hardware ecosystem would be a nice use of some of that lawyer time.  Forcing users to rely on “it is technically a violation but we probably won’t decide to sue you” for comfort is not an ideal outcome.  

Bonus Analysis

Reading this, you may ask yourself “but what if at the time I’m using the software I’m not thinking about open source hardware and only decide to open source the files later?”  This is a perceptive question and one that highlights the interesting (at least to me) temporal intent nature of parts of copyright law.  I would argue that what matters is your intent at the time you are using the software.  If you change your mind once your use of the software is done, the nature of the license shouldn’t matter because you are not  making any copies of the software that require licensing.

Another version of this issue is illustrated by CD ripping. If you rip a CD you own in order to shift it onto your phone for later listening, that copy is pretty clearly fair use.  However, if you rip a CD with the intent of being able to return the CD to the store or resell the CD while keeping your new digital copy, that copy probably isn’t fair use.  The temporal issue arises if you rip the CDs with shifting intent but then decide months or years later to resell the CD.  The digital copies were legitimately created - they probably shouldn’t become retroactively infringing just because you changed your mind later.

Of course, if any of this was ever litigated it would turn on proving true intent at the time of copying.  That’s never easy.

This post originally appeared on the Shapeways blog.

Yesterday the United States Department of Commerce released a whitepaper on remixes, first sale, and statutory damages.  While this is interesting reading for anyone who likes thinking about copyright law and how it might be reformed (i.e. every man, woman, and child on the planet), two of the areas that it covers may be especially interesting to the Shapeways community: remixes and statutory damages.  Read on to find out why – if you get to the end and you aren’t convinced I’ll refund you the cost of this blog post.

While not every model on Shapeways is protected by copyright, many of them are. That means that the rules for copyright also end up being the rules for models on Shapeways.  This latest report is part of a long process of reviewing the U.S. copyright law that has involved Congress, the Administration, and the Copyright Office itself.  While it will not change the law on its own, this report is a good description of the current state of play and will likely influence any eventual changes that Congress makes to the law in the future.  You can think of it as capturing a moment in the evolving consensus (or at least evolving conventional wisdom) of what “reasonable” copyright reform looks like.  (If you are feeling especially wonky, you might think of it as helping to set the Overton window for the debate – but that’s a bit of a digression.  Anyway….)

Remix

The first issue that the report addresses is how to handle remixes.  Essentially, remixes take existing works to reimagine, recontextualize, and, yes, remix them into something fresh and new.  They can take many forms, from fan fiction to mashup videos to songs built out of samples.  3D printed remixes can take two characters from a movie and mash them up into one, or reimagine a video game character in the style of another game, or even stir up a collection of memes to turn them into a super-meme.

While remix is everywhere, its status within the world of copyright law can be complicated.  Some remixes require permission from the remix sources in order to comply with the law.  Others are protected by fair useand do not need permission.  Since copyright infringement can come with hefty penalties (more on that in a second), it is important for remix creators to know which category their work falls into.  Unfortunately, that isn’t always a straightforward process.

The report describes two different types of disagreement about how to handle remixes.  The first is probably the expected disagreement: between people who make remixes and people who make the things that get turned into remixes (obviously the same person can be in both camps, but for the purpose of this post it is easier to separate them out).

The other type of disagreement may be less expected: this disagreement is between people who are involved with remix commercially and people who are involved with remix noncommercially.  To oversimplify things, people who are involved with remix non-commercially basically want to be left alone.  People who control the material that is used in both commercial and non-commercial remixes worry that leaving non-commercial remixers alone will create a loophole for commercial remixers to avoid paying licensing fees.  The result is a mess.

The report does not do a lot to help resolve either of these disagreements.  It suggests that best practice guides can be useful, but also recognizes that they can be incomplete or imperfect.  It also considers some sort of multi-stakeholder agreement on some rules, while at the same time noting that the last time such a thing was attempted it went nowhere.

This lack of a clear resolution is unfortunate because it can be expensive if you are wrong about needing permission from the sources to make your remix.  In large part that is because of the way copyright damages work.

Statutory Damages

Don’t be put off by the fancy name.  “Statutory damages” just means that the dollar amount you have to pay for infringing on copyright is written into the law.  This is in contrast to most other types of damage, where the person suing has to show how much harm they were caused before they can recover damages.

The statutory damage system is good for the person doing the suing because they do not have to figure out a way to calculate their specific losses.  It can be scary for the person being sued because the number (even though it is a range) can be quite large – into the six figures per work infringed.

When the U.S. copyright law was last redone in 1976, most copyright infringers were going to be commercial-scale criminal enterprises.  Very few people inadvertently backed into significant copyright infringement. Today it really is possible to expose yourself to hundreds of thousands of dollars’ worth of infringement liability with a few casual clicks of the mouse.

Fortunately, the report actually contains some recommendations to make this system better.  Essentially, the recommendations would give courts more leeway to consider the circumstances of the infringement before assigning large penalties to the infringer.  Hopefully that would make it less likely that small scale infringers or people who made a wrong guess about fair use end up owing hundreds of thousands of dollars.

What’s Next?

As I said at the beginning, this report is part of a longer review of U.S. copyright law.  We’ll keep an eye on the parts that may impact the Shapeways community and keep you updated as things happen.  If you are interested in either of these topics, I would recommend taking a look at the report itself.  It is written in accessible prose and each section provides background on the issue, the points raised by both sides, and an explanation as to why the Task Force recommended what it did.

As you look at the section describing the points raised by both sides, you might also consider taking a look at which companies and organizations raised points you agree with or disagree with.  These companies and organizations are the ones that are participating directly in this process and might be worth checking out.

In the meantime, Matt Schruers over at Project Disco has a quick writeup of some takeaways of the report generally.  Heidi Tandy – who is affiliated with the Organization for Transformative Works – also has ananalysis of what this means especially from the perspective of remixers at her FYeahCopyright blog.  If you have gotten this far and are itching for your refund, the gift of the links to those two posts may scratch it for you.

Have you ever tried to make a remix or has your work ever been remixed by someone else?  Did copyright concerns have any impact on how you thought about it?  Have you ever had to sue someone for copyright infringement, or been sued yourself? If so, did statutory damages make that process better or worse?  Let me know in the comments, on twitter @MWeinberg2D, or via email at mweinberg@shapeways.com.

During the slow news week at the very end of last year, 3D Systems announced that they were stepping away from their consumer-oriented Cube desktop 3D printer. Since the Cube is designed to only accept printing filament made by 3D Systems, as part of winding down the Cube - and as an act of good faith to Cube owners - 3D Systems should explicitly open the doors to third party filament. This can take the form of two simple public commitments.  First, 3D Systems can promise not to sue any Cube users who use non-3D Systems filament for the Cube.  Second, 3D Systems can promise not to sue anyone who wants to make and sell filament that will work with the Cube.  Doing both requires circumventing the verification chip that 3D Systems includes in its filament today.

Although I don’t have a Cube myself, I’ll admit that I have more than a passing interest this issue.  For most of last year, first as part of Public Knowledge and later in my personal capacity, I was involved in a process at the US Copyright Office designed to “jailbreak” 3D printers.  The idea was that if you bought a 3D printer the printer manufacturer shouldn’t use the threat of a copyright lawsuit to prevent you from going somewhere else for filament.  To 3D Systems’ credit (and in contrast to Makerbot parent company Stratasys), they took no steps in opposition to this effort.

The Copyright Office ultimately agreed that a printer manufacturer shouldn’t be able to use copyright to force you to buy filament from them (well, mostly – it’s a long story). In part, this was because the Copyright Office recognized that locking users into a single approved source of filament artificially inflated prices and prevented innovative new filaments from entering the market.

Now that 3D Systems is backing away from the consumer market, what does it mean for all of those people who thought they were relying on 3D Systems for filament cartridges?  3D Systems says that they will continue to sell materials, but how long might that last? And, with the company turning away from the consumer market, how likely is it that any new filaments will make it into that marketplace?  There is no reason that Cube users should have to rely on 3D Systems’ waning interest to keep their printers useful in the future.

Truth be told, I believe that neither Cube users who make use of third party filaments nor those third parties who would sell Cube-compatible filament to the public are violating laws today.  However, it is also quite possible that the prospect (and cost) of having to prove that legality in court will keep some people from dealing with third party filaments at all.  A clear statement of support from 3D Systems for both using and making third party filament could make it much easier for Cube owners to use their printers well into the future.

3D Systems decided experiment with locking filament in the consumer market, and for whatever reason they have decided to end that experiment.  There is nothing wrong with that.  However, their decision to use locking created an increased obligation to Cube users after the experiment ends.  Regardless of how long they plan on selling their proprietary filament, it would be a worthwhile gesture to its community to formally announce that it would not prevent anyone from using third party filament in the Cube and that they would not go after any company that wants to step in to make compatible cartridges going forward.  Just because 3D Systems is moving on, digital locks shouldn’t force everyone else to move on too.

image: Make: 3D Printer Testing by John Abella