The most surprising thing to me about working at Shapeways so far is how people respond to copyright takedown notices.  In fact, it is fundamentally changing the way I think about online copyright debates.

Before I came to Shapeways I worked on online copyright policy issues, so I thought I had a pretty good understanding of the copyright notice and takedown process.  A user uploads a file to a website like Shapeways. A brand sends Shapeways a notice claiming that the user is infringing on their rights.  Shapeways takes the file down and tells the user.

In the classic model, this process gives the user a choice: she can recognize that she is probably infringing and keep the file down, or she can claim that the brand is wrong to order the file down - maybe because of fair use, maybe because she has a license, maybe because the brand just picked the wrong file by mistake - and order it back up.  There is a lot of nuance lost in this model (many people who should challenge takedowns are intimidated by the legal process and don’t, for one), but it is still the classic textbook model for how the process works.

While this model plays out every day, there is an additional option that I didn’t fully appreciate: the user recognizes that they are infringing but desperately wants to be put in contact with the brand so she can get a license.  She wants to find a way to partner with the brand, sharing revenue and working together.  In many cases, the takedown notice is a gift because it is the first time she has been able to communicate with anyone from the brand at all.

A Third Way

The online copyright debate is often characterized by two archetypes: the unrepentant pirate and the stifled free speaker. The unrepentant pirate works hard to undermine global creativity by making music, movies, and everything else freely available online without regard for consequences.  The stifled free speaker (or, if you prefer, proud mother sharing videos of her child with her family) is unjustly silenced by overzealous copyright owners.  

There is a truth in each of these, while at the same time each paints with too broad a bush.  But focusing on this dichotomy masks a third, growing category: the eager partner.  

The eager partner does not lurk in the shadows of the internet, motivated by a desire to make all copyrighted content available for free. Neither is she making expressive use of content in a way that does not require approval from brands.  Instead, the eager partner is consciously building on existing IP – often IP that she has a deep emotional connection to – in a way that probably does require some sort of license agreement.  

She is not trying to hide from the brand.  She does not think that the brand’s opinion of what she is doing is irrelevant.  The eager partner wants more than anything else to become an official partner of the brand, and is more than happy to send the brand a percentage of her revenue in exchange for doing so.  She just doesn’t have a way to make that partnership happen.  (These characteristics set her apart from the rich trove of fan artists whose work is protected by fair use). 

Potential Win Win With Partnerships and Licenses

Today, brands are failing to take advantage of these eager partners.  The eager partner is not trying to avoid the brand – the eager partner wants to work with the brand.  There are obvious benefits to this sort of partnership.  For the eager partner, there is the ability to share – and sell – their creations with full approval from the brand.  The eager partner also gets a deeper connection to the brand they love enough to use as a basis for their creativity.

The brand benefits as well. In the short term, the brand gets to avoid the awkward situation of threatening a super fan with legal action. The brand also gets the benefit of the eager partner’s market research and testing.  No matter how big a brand is, it will never be able to imagine all of the products that might find a market online.  That means they are not producing things that could be making them money.  3D printing enhances the cost of that limitation because it even allows a market of 5 or 500 to be met profitably.  In aggregate, these products can drive significant licensing fees.  If fans are selling products, a brand will get a cut of each of those sales.

Trying Something New

This is a slightly different way of doing business, and it won’t be as easy as waking up one day and deciding to do it.  Embracing fans means giving up bit of control.  However many benefits that loosening of control may bring, giving up a bit of control is always hard.  

Traditionally, transaction costs have also been a barrier to this sort of agreement.  Dealing with large numbers of fans – some of whom will not be bringing in large numbers of dollars – can be logistically time consuming and expensive relative to the value created.  

Fortunately, neither of these challenges have to be deal killers.  I’ve argued for a while that brands can set up straightforward licensing rules while reserving the right to pull licenses for fan creations that make them feel uncomfortable.  That helps reduce transaction costs by standardizing agreements and avoid awkward or controversial creations by making it clear to eager partners what the rules are.

Oftentimes, giving up a bit of control is just what is needed to reinvigorate and inspire a fan base. Even a small amount of attention from a brand can go a long way in strengthening the relationships with their fans.  Also, there is no need to open the floodgates immediately.  Starting with a handful of trusted fans can give brands the ability to test the waters and learn what is possible.

Like many Americans, Adafruit decided to celebrate the recent 4th of July with some patriotic music.  They scored a video celebrating the 4th of July and US manufacture of Arduino with America the Beautiful, as performed by the United States Navy Band (a work on the public domain – more on that below).  Soon thereafter, they received a note from YouTube telling them that someone had issued a copyright claim against the video.  After some outrage, the claim was dropped.  But what actually happened here?  And why did it happen?

The Song is in the Public Domain

Let’s start with the song. Musical copyright is super annoying (for a great dive into one small part of music-related copyright – the ability for artists to reclaim rights they gave to labels, check out this whitepaper by my former PK colleague Jodie Griffin), but this instance is fairly straightforward.  A recorded song has two copyrights: the copyright in the underlying work (the song as written) and the copyright in the performance of that work.  Let’s take them one at a time.

The underlying work is America the Beautiful.  Wikipedia is as good a source as anything for this, and it says that the music for America the Beautiful was originally written in 1882, the poem that became the lyrics was originally written in 1895, and the two were combined in 1910.  Using the copyright duration/public domain calculator of your choice, we can be confident that works originally published on those dates are in the public domain (I’m leaving out a possible newer arrangement of the music for this analysis because no one has suggested it was a factor and it complicates things). Copyright one: check.

The performance is the recording of the actual band performing the song.  It is pretty likely that this performance happened at a time where, if it was eligible for copyright protection, it would still be protected by copyright.   A good public domain rule of thumb is anything after 1922 is still protected by copyright, and the technical realities of 1920s-era recording means any high quality recording is much newer than that.

However, there is another factor to consider.  As I am admittedly super aggressive about mentioning, works by the US government are not eligible for copyright protection.  They are in the public domain from the moment they are created. Since the US Navy Band is part of the US government…. Copyright two: check.  Former Public Knowledge intern Ethan James covered this territory about this time last year.

So What Happened?

If the song (composition and performance) are in the public domain, how could someone have asserted a copyright claim against it? Enter YouTube’s Content ID system.  Content ID is a private alternative to the DMCA that YouTube has set up on its site.  Large content owners upload music or movies that they own.  Whenever anyone else uploads a video to YouTube, YouTube checks the video against this blacklist to see if there is a match.  If there is a match, the rightsholder gets to decide what happens. Sometimes the video is taken down, sometimes the rightsholder runs ads against it, and sometimes the rightsholder prevents the uploader from running ads against the video.

There are a number of legitimate criticisms against Content ID, many of which focus on the fact that it lacks many of the minimal protections for misidentification built into the DMCA.  To continue a theme, former Public Knowledge Artist in Residency Elisa Kreisinger’s Fair Use® explores some of these shortcomings (Public Knowledge is on this stuff people).

In this case, the copyright flag was tied to Rumblefish, a service that (among other things, I assume) patrols YouTube for copyright infringement on behalf of its clients. While the Navy Band’s performance was in the  public domain, it sounds like it was close enough to the (copyright protected) performance by another band represented by Rumblefish to be flagged.

As an aside, even if this other band’s performance was identical to the Navy Band’s, it could still be protected by copyright.  Copyright allows for independent creation.  As long as the unnamed other band wasn’t actually copying the Navy Band – but rather getting to the same place for the same reasons – the Navy Band’s performance could be in the public domain while the other band’s performance could be protected by copyright.  That’s why you have to pay for the London Philharmonic’s recording of fancy classical music but can also get a copy for free from Musopen (Public Knowledge connection: they were on the podcast in 2012).

So YouTube’s Content ID confused the Navy Band’s America the Beautiful with Rumblefish’s client’s America the Beautiful and handed Rumblefish a veto over Adafruit’s video.  Because Adafruit is well known, they were able to raise a stink and have Rumblefish back down. This is a win(ish) for Adafruit, but being big enough to raise a stink really shouldn’t be a prerequisite for overcoming bad copyright claims.

What Could be Done Better/Where Should I Direct My Rage?

Content ID is imperfect. That’s inevitable, but knowing that Google and YouTube could work harder to build safeguards into the system.  And knowing that it represents performances that are dangerously similar to public domain ones, Rumblefish could work harder to tread lightly.

In this case, one obvious change would be to how Rumblefish responded to the match.  From what I can tell, Rumblefish had a match to this performance set to “prevent monetization by the uploader.”  While that is better than “take down forever,” it still had the effect of dictating terms for a video it had no rights over.  For performances of songs like America the Beautiful – songs that are in the public domain, that are likely to have multiple similar versions, and that are likely to have public domain and/or freely licensed versions floating around - Rumblefish could set a match to “flag for me but do nothing until an actual human being reviews the match.”  That is doubly true because it is much more likely that the free, public domain version of the song is incorporated into an uploaded video than the one represented by Rumblefish.

Is that even an option in Content ID?  I don’t know. If it is, Rumblefish should take it. If it isn’t YouTube should implement it.  The cost to free expression of not having that seems a bit too high not to.

The other thing that YouTube could do would be to build some sort of penalty for false positives into the system.  An occasional incorrect match is one thing, but if a song that is included in Content ID regularly triggers misidentification perhaps it should not be allowed to claim control over videos.  This kind of common sense restriction could go a long way towards avoiding these types of situations.

No, this isn’t a post about President Obama being “absent” from some policy debate or another.  Instead, this is really about President Obama being missing.  More specifically, this is about the missing high resolution 3D scan of President Obama being missing.  The file exists – why isn’t it public?

A little over a year ago, the Smithsonian’s Laser Cowboys came to the White House to create the first 3D portrait of a sitting president.  The resulting 3D printed bust made a cameo appearance at the first White House Maker Faire and was on more general display in the Smithsonian Castle at the end of 2014.  The White House also released a great video that detailed the entire scanning process.

The bust popped up again at the National Portrait Gallery for Presidents Day 2015 and then, presumably, made its way back to storage.  Which is fine.  The nature of physical artifacts is that they can only be displayed at one place at a time and, in most cases, spend some time in storage away from the public.

Of course, this is not just a regular artifact.  It is a 3D printed bust created from a 3D scan file.  While the bust can only be one place at a time, the file could be any- and every- where at once.  So why isn’t it?

The Smithsonian’s X3D platform could easily distribute the file (they already have President Lincoln’s face – both with and without a beard).  The White House could host it on or open an account at any number of other places online.  Then anyone could download the file and print their own President Obama bust.  They could also remix President Obama to their heart’s content.

The strangest thing is that keeping this data under wraps isn’t even preventing 3D files of President Obama off the internet.   The team over at Sketchfab managed to extract a version of the President Obama scan from the White House video above.

What’s left to lose?  The White House flickr feed is already full of public domain (bogus usage restrictions aside) images of President Obama.  Now that a 3D file is in the wild, why not provide the public with a high quality version?

Why is President Obama missing from the world of 3D printing?

This post originally appeared on the Shapeways blog.

This article originally appeared on

For much of this year, the US Copyright Office has been looking into 3D printing. Recently, I feel some commenters here at have fundamentally misunderstood the proceeding and confused it with unrelated items in the news. As the author of the petition before the Copyright Office, it seemed worth taking a moment to explain what is (and is not) happening at the Copyright Office.

Not All Intellectual Property is the Same

First, it is important to keep in mind that not everything that can be categorized as “intellectual property” is the same. Copyright generally protects creative, nonfunctional works (plus code) with protections that often last more than a century. Patent generally protects functional objects and processes (like 3D printing processes) with protection that expires after twenty years. Trademark generally protects words and symbols that identify goods in the market (like the name Stratasys) with protection that can last forever.

As you might expect from its name, the Copyright Office focuses on Copyright. That means things like Taylor Swift songs and software that runs on computers. In most cases, that doesn’t mean technical processes connected to 3D printing like a new extruder head or material to be printed. That is true regardless how much money or time is spent developing them. These types of 3D printing-related technical innovations may be eligible for patent protection, but (as the name suggests) that type of protection is outside of the Copyright Office’s area of expertise.

This Proceeding is About Using Third Party Consumables in Printers

Fundamentally, the current proceeding is about using consumables not approved by printer manufacturers without violating copyright law (for more background on the proceeding, check out this article). As a general matter, the decision of what type of material to use in your 3D printer has nothing to do with copyright because neither printers nor consumables are protectable by copyright. However, since Stratasys (and other manufacturers) sometimes use chips with (potentially copyright protected) software to verify that consumables came from them, there is an argument to be made that using unapproved consumables could violate a part of copyright law called the Digital Millennium Copyright Act (also known as the DMCA for short).

The DMCA as Pretext

Make no mistake, this potential for a DMCA violation is little more than a pretext for manufacturers to protect materials and processes that are completely unrelated to copyright law. Stratasys is trying to use the DMCA to protect its market in consumables, a market that – regardless of how much time, money, and effort they invest – simply isn’t eligible for copyright protection.

The idea that the DMCA is a pretext to protect these unrelated markets is not speculation. Stratasys’ own filing for the Copyright Office focuses almost exclusively on concerns like consumer safety and repeatability of prints. These concerns may be important, but they are not the types of concerns that Copyright is designed to address.

Stratasys further commissioned an economic study as an addendum to its filing purporting to detail the consumer benefits of locking users into one source of consumables. Regardless of the validity of this argument – and I’ll admit that I’m highly skeptical – this benefit has nothing do with concerns about someone making infringing copies of the software that runs Stratasys printers.

Finally, during the hearing on this petitionStratasys spent a great deal of time detailing the potential for airplanes to fall from the sky if non-approved materials entered the commercial supply chain. Again, regardless of this argument’s validity, we simply do not rely on copyright law to address these sorts of harms. The fact that Stratasys focuses on all of these points at the expense of any actually connected to copyright highlights the pretextual nature of its involvement in this proceeding.

2D and 3D Printing are Different – and the Same

There are numerous differences between 2D and 3D printing – from the materials used, to the output of the machines, to the brand names of the companies involved in the market. However, in the context of the DMCA and unlocking, 2D and 3D printing are remarkably similar.

A decade ago the 2D printing company Lexmark also tried to use copyright as a pretext to lock people into using toner from them. Courtsslapped Lexmark down, rightly observing that copyright has nothing to do with printer toner – even (especially?) printer toner and cartridges that embodied millions of dollars’ worth of R&D and a fair number of patents.

Technical differences aside, the dynamic in 3D printing is almost identical. Again, a printer manufacturer is looking to rely on the pretext of copyright to protect its market in printer consumables that – unlike the market for Taylor Swift’s songs – has no real connection to copyright.

Why is This Important?

If this was simply an academic argument about the nature of copyright it probably wouldn’t be worth having. But besides the general chilling effect that copyright creep can have on innovation, this sort of copyright abuse has very real consequences.

Locking in consumers to consumables approved by manufacturers limits choice. Remember, this proceeding is not about counterfeit consumables that are pretending to come from Stratasys. This is about giving users the choice to use consumables that clearly state “I am not from Stratasys but you still might want to use me anyway.”

Lock-in also slows innovation. No matter how innovative Stratasys wants to be – and I’m not suggesting that they lack innovation – no single manufacturer can think of everything. Allowing third parties the opportunity to sell consumables brings more eyes on the challenges of developing 3D printing materials. With more people competing to develop more innovative 3D printing consumables, everyone wins.

Finally, this is about ownership and control. Using non-approved consumables in a 3D printer may be a great idea. It also may be a horrible idea. However, users of 3D printers are adults who should be free to make that assessment themselves. They may void their warranties or their service contracts, but there is no reason they should be threatened with a copyright lawsuit for daring to experiment with unapproved consumables.

Today, users can load unapproved operating systems on the Apple laptops, unlock their Microsoft cell phones in order to switch carriers, andbuy unapproved 2D printer toner for their Lexmark printers. Not only has the world not come to an end, but Apple, Microsoft, and Lexmark have continued to exist and improve. There is no reason that copyright should be used as a pretext to make 3D printers any different.

Yesterday the Copyright Office released all of the answers to the questions they had after the unlocking hearings.  Turns out that Stratasys, Public Knowledge, and I all agree!  We all told the Copyright Office that there is no meaningful way to make some sort of distinction between “commercial” and “non-commercial” users of 3D printers for the purpose of the exemption.  What’s going on here?

Both during the hearing and in its follow up question, the Copyright Office seemed interested in exploring granting some sort of partial exemption for unlocking 3D printers.  It is always dangerous to look too deeply into the tea leaves of questions to guess what people are thinking, but it seemed like the Office was considering an unlocking exemption for a category of small, personal printers or users while not granting the exemption for larger commercial printers or users.  The Office’s follow up question asked participants if this sort of distinction was viable.

All three of us answered no, essentially making the same types of points: Professionals use lower cost desktop printers for work and everyday people use expensive “industrial” printers for fun (via services such as my employer Shapeways).  Printers can switch back and forth between what they print (or mix batches at the same time) and users can similarly switch what they are doing. 

At some level, all of us are making the same gamble: instead of tacitly accepting some sort of compromise from the Copyright Office where some printers get unlocked and others don’t, we are pushing the Copyright Office to make a real choice: either all 3D printers get an exemption or none do.  No legal distinctions that don’t make sense, no half measures.  Obviously, PK and I are pushing for the exemption while Stratasys is pushing against it, but our strategic thinking is probably similar. We’ll see in the next few months which gamble (if any?) pays off.

The Makerbot Twist

There has been a Makerbot subplot running through this entire proceeding, and the Stratasys response added another chapter.  Stratasys owns Makerbot and a significant amount of the discussion during the Copyright Office hearing discussed Makerbot specifically.

One of the things that I took from the hearing was that Stratasys was seriously considering adding DRM to their Makerbot line that locked Makerbots to Stratasys-approved filament. However, a week later the new Makerbot CEO (who, not incidentally, is also the son of the Chairman of Stratasys proper so presumably has deep ties inside the company) told Adafruit that he had no plans to DRM Makerbot filament.

Obviously the timetable is a bit compressed, but Stratasys’ response to the Copyright Office could have provided them an opportunity to clarify their plans with regard to Makerbot and DRM on the record.  The fact that they didn’t take that opportunity doesn’t inherently mean that they are being duplicitous (there are a million legitimate internal logistical reasons that the statement didn’t make it into the filing).  But it certainly does seem fair to note it as a missed opportunity.  The impression that Stratasys gave the Copyright Office was that the option to add filament DRM to Makerbot printers was important to them. This could have been a good opportunity to correct that impression, and it was one they did not take.

image credit: flickr user Mark Dumont.