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….)


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

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


Five years ago today Public Knowledge published our first 3D printing whitepaper called “It Will Be Awesome if They Don’t Screw it Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology.”  It was our attempt to take Public Knowledge’s expertise in intellectual property and apply it to the then-emerging world of 3D printing.  Alex Curtis had been pushing Public Knowledge to look into 3D printing for a while, and Simon Bradshaw, Adrian Bowyer, and Patrick Haufe, released their paper on 3D printing and IP earlier that year. Thanks to a jury duty-enforced light work load for the summer of 2010, I got to beat Alex to the punch and write the PK paper essentially porting the EU and UK legal analysis from the Bradshaw/Bowyer/Haufe paper to US law.

At the time neither Public Knowledge institutionally nor I personally knew a lot of people in the 3D printing world directly.  In an attempt to help the paper find an audience, as part of the whitepaper rollout I did a series of 6 brief interviews with people in the community who were nice enough to respond to my emails.  To celebrate the five year anniversary of the paper, I’m going to repost these interviews today.

Taken as a collection, the interviews capture a moment in 3D printing history before it really hit the mainstream.  It was moving there – 3D printing had been featured in the New York Times – but talking to anyone about 3D printing still required a level of filling-in-of-background before you could get to whatever you really wanted to discuss.  These short discussions were mostly aimed at getting answers to a handful of questions: what are people doing today with 3D printing?  What will it look like in 2, 3, or even 5 years? What does the market look like and how it is changing?

Re-listening to these interviews, it is disorienting – and more than a little bit humbling - to hear myself asking people the same types of questions that people ask me today.  They serve as a good reminder that, no matter when it happens, many people work through a similar sequence of questions when they come into contact with 3D printing for the first time.

I think it is fair to say that this paper kicked off an interesting five years for me.  Two more papers, countless blog posts, speaking opportunities, a quartet of 3D/DCs (one year we did an Open Source Hardware event instead), and ultimately a new job followed.  That made it fun for me to listen to these again.  Maybe they will be interesting to someone else as well.  They don’t have any intro or outro music, so apologies in advance for how abruptly the start and stop. 

Prof. Adrian Bowyer

While I like each of these interviews, this is probably my favorite.  Professor Bowyer explains the origins of the RepRap with biological metaphors that stick with me to this day.  His framing of the goals of the RepRap project will make even the most cynical 3D printing veteran stop and reflect on its success.  On a more practical level, I remember recording the entire interview under the threat of a firewood delivery interrupting his side of the interview.  Fortunately we wrapped up before the wood arrived.

Michael Curry

Michael recorded this interview from the stairwell of his offices at an architectural design firm in Kansas City.  Shortly after this interview he moved to Brooklyn to work at Makerbot designing some truly amazing things.  He’s now back in Kansas City working for Formlabs.  Probably the most interesting part of this conversation is when he talks about the importance of design in expanding the scope of 3D printing and bringing in new designers and users.

Bre Pettis

Continuing the theme of awkward recording conditions, I’m pretty sure Bre recorded this entire interview standing in the middle of Union Square Park in Manhattan between meetings. What strikes me listening to this 5 years later is how comfortable being interviewed and enthusiastic about 3D printing he is.  Listening to it, it is easy to believe how quickly Makerbot grew in the following years.

Andrew Plumb

I met Andrew at the first Open Hardware Summit.  He was an early leader in the RepRap community and was able to explain how the community came together and evolved.  He, along with Rick Pollack, probably does the best job of capturing the mindset of that RepRap community at the end of 2010.  For Andrew, it is from the perspective of those community members who saw themselves as pushing the limits of what the printers could do.

Rick Pollack

Then, as now, Rick is in charge of the desktop 3D printer company Makergear.  If Andrew was on the user side of the RepRap community spectrum, Rick was on the vanguard of RepRap community members who were actively working to build a business in 3D printing.  In his explanation of how he sees the role of Makergear, you can hear the founders of countless other entrepreneurs who have managed to bring 3D printing businesses to market.

Robert Schouwenburg

It is striking how familiar Robert’s description of Shapeways feels today.  We’re still working hard to be a place for designers and shopowners, and still pushing to make more materials available to more people. I’d like to think that Shapeways has taken big steps towards fulfilling the potential that he describes, while still being focused on improving what we offer all of our users.

Michael Weinberg

In pulling these together I found a description that I gave to the interview subjects about what Public Knowledge was doing in 3D printing and what these interviews are all about. It was accurate then and it still feels accurate today.