Probably, but not for a while and not in the ways we’d anticipate.  

This is an embarassingly late post.  At the beginning of the year professor Timothy Holbrook at Emory University School of Law wrote a piece (thanks Andrew!) tied to a paper he and professor Lucas Osborn at Campbell University School of Law published about 3D printing and patents.  The article appears to call for something of a copyright-ification of patents with strict liability for transmitting files for patented objects over the internet.  Today, in order to infringe on a patented object you need to make the patented object.  The article argued in favor of making it infringement to merely distribute a file that represented a patented object.  This struck me as a bad idea, but it was interesting enough that I downloaded the paper myself.  While the paper didn’t convince me, it did raise some interesting questions about the future of patent and 3D printing.

Tying patent infringement to distributing things like plans about a patented object would be a big change to the way patent law thinks about infringement.  Part of the bargain of patent law is that you get your patent in exchange for telling the public about your invention.  The public can learn from the invention, but can’t use or produce it without your permission.  Preventing people from distributing CAD files for 3D printable patented objects would make the learning part of the bargain a whole lot harder.  It could also make things kind of crazy if the USPTO started accepting CAD files as part of patent applications.  To the authors’ credit, they do a good job of cataloging all of the times that courts have declined to expand patent law in this way in the past.

That is not to say there isn’t a kind of logic to the idea.  In a world where everything can be automatically replicated with the touch of a button, it may be that the costs of turning distributing CAD files of patented objects into infringement are outweighed by the benefits of giving patent owners a way (maybe the only way?) to stop infringement.

However, that comes with a big ‘if’ that captures what I’ve grown to think of as a classic flaw in many 3D printing-related policy arguments.  To simplify, it is the leap that goes from “there is a thing called 3D printing” to “3D printers can replicate everything perfectly at the touch of a button.”  This leap skips past all of the messy details about how 3D printing can be imperfect and limited, and how those imperfections and limitations can reduce the need for revolutionary policy responses.  

After reading the article, that is pretty much where I thought I would stop: another call for revolutionary expansion of rights before the revolutionary change in technology is anywhere close enough to know if it is necessary.

However, in the second half of the paper the authors lose the courage of their convictions, and I mean that in the best possible way (really!).  This was surprising to me, especially for a law review article (the format of which was once described to me as “spend 50 pages arranging deck chairs and then 5 pages at the end making a point.”).  

I found the second half of the article to be an interesting analysis of the types of considerations that policymakers would need to weigh before making a big change in patent law: how easy is it to actually turn a CAD file into the object that represents it?  what legitimate purposes might someone download a CAD file for?  how interchangable must an object and a file that represents an object be before you can call them equivalents?  how do you quantify the benefits of widespread digital distribution of objects before exposing it to patent liability?  what costs would such a shift have on the legitimacy of the patent system as a whole?

None of these questions are necessarily new, but I found that the paper did a good job of bringing them together, walking through the analysis, and framing the argument.  It was also nice to read the analysis as framed by actual patent experts, as opposed to kicking ideas around in my non-patent expert head.

Long story short: if you are interested in patent and 3D printing the paper is worth checking out. Don’t let the argument about massively expanding patent liability throw you - the rest of the paper is full of useful analysis.

[edit 7/22/17: Believe it or not, there is a third chapter to this story and it introduces defamation of all things.]

As the headline suggests, this is a second blog post that continues on this post.  All of the disclaimers and facts from that post apply, including that this is a general analysis of issues of copyright and 3D models which may or may not apply to any specific model. 

The short summary is that a company called Just 3D Print has downloaded a number of files from thingiverse and is selling them on eBay in violation of the Creative Commons (CC) licenses applies to those files.  When contacted by the designers, Just 3D Print replies that does not need permission for reasons discussed in the previous post and expanded upon below which boil down to a claim that they are in the public domain.

I have now contacted Just 3D Print and confirmed that the behavior and justifications attributed to them in fact come from them.  After reading their lengthly response in the thingiverse comments, I asked them for additional comment.  The rest of this post is my attempt to contextualize their justifications.  As I explained to Just 3D Print, while unfortunate, in some ways I view this dispute as beneficial.  It takes a  number of somewhat theoretical discussions and gives them concrete facts.  If nothing else, that may make the discussion somewhat easier to understand. 

I’m going to start with the specific justifications Just 3D Print made to me in their email response (which they sent with a proviso that I was free to share it) and then include one or two that they only included in the thingiverse comments.  I’ll quote or summarize in a way that I hope makes this reasonably understandable, so keep an eye out for quote marks to know where the language itself comes from.

1. “No United States court has ruled a Computer-Assisted-Design file, or a derivative thereof, as inherently copyrightable (unlike photographs, literature, etc.).”

This is absolutely true.  As I wrote yesterday, in many if not most cases involved in this dispute, it is also largely irrelevant.  The copyrightability of CAD files is highly important if the object represented in the file is not protected by copyright or if the file was not created by the person who created the object represented in that file (i.e. if it was scanned or modeled based on an existing object).  Sculptural works - that is, physical non-functional items - are protected by copyright law.  See 17 U.S.C. (a)(5). Many of the objects in dispute will qualify as sculptural works.  They do not lose their protection simply because they are represented in a CAD file.  If that was the case the act of scanning any sculpture would automatically put it into the pubic domain.

2. “The essence of a CAD file is that it is a set of instructions for producing a physical item. There is a rich history of United States IP law, that goes back to before the United States was even a country, regarding physical items. This history says that physical items are not protect-able by their owners/inventors unless they have a patent, are sourced from a pre-existing copyright, or are a “work of art”/copyrightable. 90%+ of all products on sites like Thingiverse.com clearly do not fall into one of these three buckets- which means anyone and everyone can produce said products for any legal purpose.“

This mixes a few things, none of which support the position that everything on thingiverse is in the public domain.  As for the “set of instructions” argument, it goes back to the copyrightability of CAD files again.  I’m actually in the middle of a longer paper on this topic, but for now let’s just say that even if a CAD file is just a non-copyrightable set of instructions (something I believe to be largely true), everything in my response to 1 above still holds.  That is, many of the non-functional objects represented in the files are still protected by copyright.

As for the physical items, I believe that this conflates “physical items” with “functional items.”  Functional items are in fact outside of the scope of copyright protection.  As a result, if they are not protected by patent they are largely in the public domain.  However, not all physical items are functional items.  Many sculptural or decorative items are well within the scope of copyright protection and have been for some time.  Again, see 17 U.S.C. (a)(5).

3. “In order for individuals to keep a patent, copyright, or most other IP valid, they have to take reasonable steps to prevent other individuals from infringing on their IP. Even if one assumes that, in the future, a court finds CAD files/derivatives thereof copyrightable (which is highly unlikely), individuals who post said designs online for anyone and everyone to download are doing the exact opposite of taking reasonable steps to protect their IP.”

Let’s set aside the question of if you need to take reasonable steps to protect your IP rights in order to maintain them.  In the vast majority of cases this is not the case, but I can think of enough lawyerly caveats that I want to avoid the digression. 

Fortunately, I can dodge that question entirely because thingiverse designers are not posting “designs online for anyone and everyone to download.”  Well, at last that isn’t all they are doing.  Thingiverse designers are making their works available to the public explicitly conditioned on a license.  While the terms of the license may be different, as a legal tool it is identical to what governs every movie available for streaming on netflix.  If, for the sake of argument, it is required to take steps to protect your copyright in order to maintain it, distributing works with a license strikes me as a completely reasonable step to protect your copyright.

4. “Some claim that the Creative Commons license protects designers who upload their CAD creations online. This is false. The CC license directly contradicts existing United States IP law and has never been challenged in a United States Court (in the entire world, it has been involved in 10 cases-https://wiki.creativecommons.org/wiki/Case_Law- and in these cases it was either not even discussed or existing IP law/precedent was used instead of the CC license).”

I’ve never read an argument as to why CC licenses “directly contradict[] existing United States IP law” so I don’t really understand where it is coming from.  If someone has a link I’m happy to add it here.  In fact, CC licenses were explicitly designed to use existing US IP law to make sharing easier and do a pretty solid job of that.  If the model is protectable by copyright (see 1 above), a CC license is as valid as any other.

5. This point, which I am summarizing from a long paragraph, is essentially that 3D printing has grown in large part because of the expiration of patents on the printers themselves, and that somehow copyright on 3D models would impact this.  In the spirit of fairness I’m going to quote the point in its entirety now:

The biggest reason that 3D printing, and the online design community that supplies CAD models for 3D printing, has taken off in the incredible way it has these last few years is because the main/most fundamental patents relating to 3D printers expired in the early 2000s and a wealth of innovation poured into the space with 500+ companies producing cheap, consumer friendly 3D printers instead of five companies producing $20,000+ printers. Imagine a world where the patent holders claimed that the physical innovations they came up with, or the computer files used to create said items, were “works of art”/copyrightable. In this world, 3D printers would not be widely available to the public until 2050 or later. If this was true, what is to stop other manufacturers from also claiming their products are “works of art”/copyrightable? New drugs, technologies, and all physical products would be granted a government-protected monopoly that would extend to the current age of Mickey Mouse. Considering that we, and online designers, are only partaking of the 3D printing renaissance because of the United States reasonable policy of allowing innovations to be open to the public after a patent expires, it is incredibly ironic that members of this same community would spit on this tradition in favor of extending an extremely long government monopoly on all physical products. So, in the best interest of the community, we hope that the public, and courts, will agree with us and prevent CAD models from being inherently copyrightable-or the consequences will be incredibly severe.

I totally agree that a big part of the explosion of 3D printing has to do with the expiration of patents on 3D printers themselves.  I have no idea why copyright protecting individual 3D models has is impacted by that observation one way or the other.  Again, if someone can flesh it out I’m happy to link it here.

6. “We have found that the vast majority of designers who post their designs to sites like Thingiverse.com do not care about their monetization (after all, in uploading them to Thingiverse they are granting the site’s owner/public traded Israeli company Stratasys, Inc. a license to do what they will with the design), but would like to be credited/linked whenever the design is used. We, and most others, are happy to do this. The only issue is that eBay, Amazon, Etsy, etc. block us from putting links in our listings to external sites (with select few exceptions). We are currently working with eBay, others to see if this can be changed. Until such a time, all we can do is have a plain text reference.“

This does not appear to be the response that they gave designers who contacted them about crediting the design in compliance with the license.  If they are now complying with the BY provision of the CC license, that’s a great thing.  However, if the CC license also has a non-commercial restriction then credit alone isn’t enough to comply.  They could certainly get an additional license to sell the model commercially, but that license is not implied simply by putting the model up on thingiverse.

7. The next three points are drawn from Just 3D Print’s response in thingiverse comments. I’m just going to summarize them because you can read the entire text here.  The first point is that this is only coming to light because a competitor emailed designers to give them a heads up about Just 3D Print’s behavior.

I don’t see how that point is relevant at all.  If Just 3D Print is violating the copyright of designers, the fact that the designer did not know about it until they were tipped off does not change the infringement.  The fact that other parties may be infringing in similar ways is also irrelevant.  Designers are free to pick and choose who to go after for infringement.

8. I can quote this one because it is short: “Yes, all photographs are copyrighted by their creators, but in order to defend a picture/tell people not to use it, it must be registered with the U.S. copyright office. “

This is false.  Helpfully, the US Copyright Office has a FAQ question that is exactly on point.  While you may  need to register your copyright in order to bring an infringement lawsuit, your copyright can still be infringed prior to registration.  Copying a copyright-protected photo outside of the scope of a license (absent fair use) is going to infringe upon the copyright in the photo regardless of its registration status. In other words, you can tell people not to use your photos without registering them.  (This actually creates a huge issue with what are know as “orphan works,” but boy if you think I’m going to make this post any longer by writing about that you have another thing coming.)

9. To summarize the last point I’ll address in this post, thingiverse violates the noncommercial restrictions on the licenses so the licenses are invalid.

Two reasons that this is wrong.  First, thingiverse is not bound by the terms of the CC licenses because designers have a separate agreement with thingiverse.  When you sign up for a thingiverse account you agree to terms and conditions, and those terms and conditions govern how thingiverse can use your models.  There is nothing improper about having different licenses for the same work.  To go back to the example I used yesterday, the license that allows HBO to stream Mad Max to its subscribers is very different from the license that allows me as a subscriber to view Mad Max.

Second, the fact that someone else is violating a license generally does not give everyone else permission to violate the license.

If you made it this far, thank you I guess?  I’m bothering to write this because as 3D printing and design grows I think it is important for everyone to have a strong understanding of what is - and is not - protected by various types of copyright.  Hopefully it is of some use to some people.  As I mentioned yesterday, I’ll do my best to update this post or add a new post as more info becomes public.  Finally, if you think I missed something or got something wrong, don’t be shy.  There are public and private ways to get in touch on my about page.  Send me a link to all of the reasons you think I am dumb.

Image: Sad Face! IMPORTANT NOTICE by thingiverse user loubie.  Since this photo is licensed under a CC-BY license, including this credit allows me to reproduce this image without violating loubie’s copyright.  Since the photo was offered under a CC-BY license on thingiverse, it also means that I didn’t need to ask for additional permission to use it because the license itself grants me permission. update: Richard Horne called me out (nicely) on twitter about my assumption that the CC license on a thingiverse page extends to the photo.  I do think that there is a bit of ambiguity around the relationship between the two (setting aside any fair use arguments I might have in this specific case), but have to concede that his reading is probably better.  I reached out to Loubie on twitter and she graciously granted me permission to use the image here.

[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.