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

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.

This post originally appeared on the Shapeways blog.  Although I didn’t explicitly frame it as such there, this is probably the closest thing to a distillation of a bunch of thinking about 3D printing and policy that I did in my first six months on the job.  The content policy section was the result of a lot of reflection about how to draw lines on a service like ours, and the product liability section is a small public example of some long conversations I had with our product liability counsel Patrick Comerford.  It also kicked off a reorganization of all of our policies to guarantee that it would be easy to find all of the previous versions of policies after they were changed, a process that my colleague Allessandra McGinnis was way, way too accommodating of me during.  Anyway…

Today we’re excited to roll out a batch of updates to our policies.  These updates should make Shapeways work better for you, and bring your experience at Shapeways more into line with your expectations of Shapeways.  This post has detailed information about the changes.  As a reminder, you can always find links to archived versions of policies on that policy’s page.

For those of you looking for a quick summary of the changes, here it is:

-          We’ve revised our content policy.  The result is increased transparency around what we will and will not print, opening up a number of new possibilities for models.

-          We’ve updated our privacy policy.  It now has an even stronger commitment to protecting your privacy, especially in the face of requests for your information by third parties and governments.

-          We’ve clarified our terms and conditions.  It should now be easier for you to understand who is responsible for what if a model causes harm to others.

-          We’ve created special terms and conditions for our public API.  They are designed to establish a common set of expectations about how the public APIs work.

Want more details?  Keep reading.  As a reminder, this post is designed to explain the changes that we are making today.  It is the policies themselves, not these summaries and explanations in this post, that form the basis of our agreement with you.

Content Policy Update

The focus of our updated content policy is to bring additional clarity to our content rules.  To that end, we have broken the policy into two sections – one for weapons and one for obscenity – and given each section a list of do’s and don’ts.  These do’s and don’ts are intended to allow designers to get a more clear understanding of what types of models will result in heightened scrutiny or rejection.

Weapons

The updated weapons policy should give designers added flexibility for their creations.  We continue to prohibit guns, parts that modify the functionality of guns, realistic replicas that could be easily confused with guns, and switchblades, throwing stars, and brass knuckles.  These restrictions are largely grounded in laws that restrict the manufacture, sale, and possession of these items.

At the same time, we will be much more accommodating of cosplay accessories, most knives and swords, and gun accessories that are not tied to core functionality – things like mounts and grips.  This should make it much easier for stores such as BrainExploder to offer camera mounts and Ammnra to offer cosplay accessories without worrying about being flagged for content policy violation.

Obscenity

In addition to weapons rules, we’re clarifying how we handle models we consider obscene.  We will continue to prohibit models that embrace sexual violence, hate speech, or that are designed to denigrate living beings.

However, we do recognize that obscenity can be a tricky line to patrol.  Therefore, we are committing ourselves to be responsive to designers who believe that we are missing critical context for a design that we reject for obscenity reasons.  That is not a guarantee that we will change our decision with additional context, but it does mean that we will seriously consider context that we may have missed.

Implementation

In addition to more consistent rules, we’re also rolling out a more consistent internal process to enforce those rules.  All models will be checked for content at the same time they are checked for printability.  Models flagged for potential content violations at this stage will be sent to the Trust and Safety team for review.  In most cases, the Trust and Safety team will make a decision about the model.  If the model is rejected, the designer will be notified of that decision.  If the Trust and Safety team is not sure, they have the option to elevate the question to the legal department, which has final say.  This structure is designed to review models as quickly and consistently as possible so that models that comply with our rules can get printed and designers of models that do not comply with our rules can find out in a timely manner.

You can compare the new policy to the previous policy, which has been archived here.

Privacy Policy Update

The biggest change to our privacy policy is the addition of clear language about how we handle request for your information from government representatives and other third parties.

We take our obligations to secure the information you entrust to us seriously.  We also take our legal obligations to comply with governments and courts seriously.  In light of these obligations, we are adopting a policy that formally requires sufficient legal process before we disclose records about our users to governments and third parties.  Generally speaking, that means that governments and third parties will need to have a subpoena, warrant, or court order in order to access your information without your permission.  Those documents must have enough information to minimize the likelihood of accidental disclosure of information from unrelated accounts.

In the case of law enforcement and other governmental requests, our policy in most cases is to provide notice to a user if she is the target of a governmental request for information.  If such notice is temporarily prohibited by law, it is our policy to alert the users once that prohibition has been lifted.

This general policy does not apply to emergency situations, or to a handful of other third parties who we may share your information with as a normal course of business (our shipping partners or vendors, for example) described in our privacy policy.

In addition to this significant change, the update includes a handful of smaller edits and clarifications.  These include clarifying what types of emails related to our service you may receive from us, a reminder that your data may cross international borders, and how our data retention policy works.

You can compare the new policy to the previous one, which has been archived here.

Terms and Conditions Update

This is an incremental update to our Terms and Conditions, focusing specifically on the language regarding product liability.  This relatively small update is designed to clarify how liability works with 3D printed models here on Shapeways.  In addition to the liability portion of the update, we clarify that except in cases of fraud or policy violation we will give you a full cash refund if we cancel your order.

This rest of this part of the post is designed to help give some background information about how we are thinking about product liability and explain the changes themselves.  As a reminder, you can find all of the old versions of our Terms and Conditions here, along with links to the blog posts that announced and explained the changes.

Liability and Responsibility

This update focuses on events that we wish never happen – models failing and hurting someone.  While it is tempting to cross our fingers and hope that everything that is uploaded and printed will always work perfectly, the responsible thing to do is to face the possibility of error head on.  That’s a big part of the role of our Terms and Conditions generally, and for the sections having to do with warranties, disclaimers, and indemnification specifically.

The nature of what we do here at Shapeways upends some of the assumptions built into the traditional thinking about product liability.  Instead of large companies relying on deep, longstanding relationships to design, manufacture, ship, and sell products, Shapeways allows people working on their own to design objects and connect with buyers directly all over the world.

While this comparatively distributed and informal structure creates a lot of advantages, it also uncovers some challenges.   One of those challenges is that in most cases we here at Shapeways do not really know what we are printing.  That means that we don’t evaluate designs before printing them to make sure they are fit for purpose – in many cases we don’t know what “fit for purpose” would even mean. Similarly, after the objects are printed we don’t test them to make sure they will function as expected because we don’t necessarily know how you expect them to function.  This does not mean that we ignore red flags or do not respond to concerns.  It does mean that we cannot guarantee that a model will be well designed for any specific application.  That’s why we rely on the designer’s word that the designs make sense for their intended purpose.

Nonetheless, there are things that we can guarantee. We can promise that the models will be 3D printed correctly on properly calibrated printers operated by responsible operators.  We can also promise that the models will be packaged and shipped correctly.  That promise means that it is our responsibility if something fails because it was printed incorrectly.  However, it does not mean that it is our responsibility if a properly printed – but incorrectly designed – model fails.

Revised Language

That’s the distinction that the revisions to the Terms and Conditions are designed to highlight.  We have always required designers to certify that their models do not violate anyone else’s intellectual property or applicable laws because the designer is best positioned to know that information.  To that list of designer responsibilities, our update adds things like relevant design and safety standards.

Similarly, we ask designers to stand behind the design specifications of their model because they are best positioned to know if the design is adequate for its intended purpose.  That is also why designers are responsible for the selection of materials.  Designers know which materials are and are not appropriate for a given model, so it is their responsibility to only print (or offer to print) the model in appropriate materials.

Finally, we make explicit what was already implicit in our indemnification section – namely that designers have an obligation to indemnify us in the face of a personal injury or product liability lawsuit flowing from their design.   Again, this is because the designer is in the best position to anticipate – and address – problems related to design defects.

Exploring Together

As I noted earlier, Shapeways raises some novel legal questions about how product liability can work in the context of 3D printing.  In updating our Terms and Conditions language, we are hoping to make it as clear as possible where we understand different responsibilities to lie.  That being said, “novel legal questions” often also mean that the answer evolves over time.  We’re all exploring the implications of 3D printing together, and it is entirely possible that this section of our Terms and Conditions evolves over time.  If and when that happens, we’ll do our best to explain our thinking to you as we go.

New API Terms and Conditions

Still with me?  The final update is not an update at all, but rather an addition.  As many of you know, we have a fantastic public API.  The new API Terms and Conditions are designed to make sure that everyone making use of the API knows how it works and what to expect.  The API Terms and Conditions build on top of our existing site-wide Terms and Conditions.  One of the advantages of that is that the API Terms and Conditions can be brief and a bit more approachably written.  They clarify that we are granting API users a license, that we strive for but don’t guarantee 100% uptime, and how to handle applications that might push an especially large volume of traffic through the API.

Questions, Concerns, Comments?

And that’s the end of the update on the updates.  As I stated at the top of this post, our goal with these updates is to make sure that our rules make it as easy as possible for you to understand how Shapeways works, and to make sure that Shapeways works the way that you expect it to.  If you have questions, concerns, or comments about these changes, let us know.  You can raise them in the comments below, in our forums, or to me directly via twitter @MWeinberg2D or email at mweinberg@shapeways.com.

This post originally appeared on the Shapeways blog.

Earlier this month I was lucky enough to present at the 2015 Creative Commons Global Summit on a question that I’ve been chewing on for the past few months: what is the proper way to give attribution to a designer of a 3D printed object?

First, some quick background.  Creative Commons is the organization behind the Creative Commons (CC) licenses and logos.  CC licenses give creators a way to contribute their copyright protected creations to the public, while at the same time conditioning that contribution on some straightforward terms. For example, CC BY-NCmeans that anyone can use the work in a noncommercial manner without additional permission from the creator as long as they give the original creator attribution (“CC” is Creative Commons, “BY” is attribution required, and “NC” is non-commercial use).  CC BY-SA means that anyone can use the work as long as they give the original creator attribution (“BY”) and license any content the builds upon the work under the same  license (“SA” or share alike).  Credit is important to the CC ecosystem, which means understanding how to give credit is an important part of using CC licensed objects correctly.

The question of how to comply with these terms is important because not complying with a CC term means that you are infringing on the original creator’s copyright (for the purposes of this blog post, I’m ignoring the wealth of 3D printable models that are not protectable by copyright. If you are interested in exploring that line, this whitepaper may be a helpful place to start.)

For the original works that CC was primarily designed for, this attribution requirement was fairly straightforward (here’s the CC-maintained best practices for doing just that).  If you use a CC-licensed image in a blog post, put a credit below the image or at the end of the post.  If you use a CC-licensed song as the soundtrack to your video, add the credit at the end.  In most of the digital world, there is often plenty of space for attribution metadata.

As is often the case, this relatively straightforward system gets a bit more complicated when it comes into the world of 3D printing.  As long as we stay digital, adding attribution to a 3D file can be simple.  Once that digital file becomes physical, attribution can get a lot harder.

In some cases, that attribution takes care of itself because it is built into the model itself.

In the case of this model, the designer’s name is embedded in the bottom of the shoe.

Although even this is an imperfect solution.  If someone decides to remix the model – something that is allowed under the license – and not take the feet in the process, that attribution disappears.

Most models don’t even start with attribution embedded in them.  Thingiverse provides a solution in the form of a credit tag:

The credit tag can work in some situations, especially when you are displaying models in more formal settings like a gallery or trade show.  However, there are still plenty of times when a tag just doesn’t make sense.

Take, for example, jewelry.  When this designer CC licensed these earrings:

Or this designer CC licensed this bracelet:

Did they intend for the person who downloaded and printed the model to hang an extra tag off of them for attribution? Probably not. But what’s the alternative? Is it enough to tell people who ask where the pieces came from?  I don’t know that anyone is sure.

The existence of this question is actually a testament to the success of Creative Commons, and to the way that the 3D design community has embraced CC licenses.  CC has become so second nature to so many people that they don’t even feel the need to walk through each of the elements and spend time considering what they will mean in practice for a specific model.  I’m guilty of the same thing myself.

I released this coin with the logo of Public Knowledge under a CC BY license.  What kind of attribution was I imagining?  I have no idea.

So what is the best way to do attribution for 3D printed models?  I do not have an answer to this question.  It is fantastic that so many people have embraced CC licenses for 3D printable objects.  Now it is time to start building a common set of expectations and best practices.  There is no right or wrong answer.  It would just be helpful to have an answer so people who want to comply with the wishes of a designer know what is expected of them.

That doesn’t start with me. That starts with you.  If you create 3D printable models and license them under CC-BY, what do you expect?  What does that BY mean to you?  Let me know in the comments or on twitter@MWeinberg2D.