Just a note that this is an immediate reaction to news that broke this morning, and my interpretation may evolve over time.  If it does I’ll provide a link here.

Today the Library of Congress released its rules for unlocking 3D printers in order to allow operators to use 3D printing materials that are not approved by the printer manufacturers.  The decision is, to put it mildly, a mess.  It is as if, at the end of the long marathon that was the rulemaking process, the Librarian of Congress decided to slap on iceskates for the last 100 yards. The predictable result was that it fell, broke both legs, and vomited all over itself.  Did it manage to fall across the finish line on the way down?  That’s hard to say.

The Original Argument

Deep background on this proceeding can be found here, here, here, and here.  The short version is that this proceeding was intended to get official blessing for an activity that shouldn’t be illegal anyway: using whatever material you want in your 3D printer without violating copyright law.  (It is reasonable for you to pause now to ask the question: what does copyright law have to do with the material I use in my 3D printer?)The Librarian of Congress ended up granting this blessing, but in a way that highlights the problem with how the Librarian of Congress and the Copyright Office see themselves and this proceeding.  Oh, and they included caveats to the blessing that call the entire thing into question.

To review, the original petition consisted of two main arguments.  First, that circumventing digital locks that prevent people from using their own material in their 3D printer does not violate copyright law. Second, even though doing so does not violate copyright law, the Librarian of Congress and the Copyright Office should formally grant an exemption allowing people to do so, in order to be totally clear that people are free to use their own material in their own 3D printers (for various reasons that I won’t get into here there was a cloud of legal uncertainty around this point).

Not surprisingly, the objections to this proposal from the 3D printer manufacturer Stratasys (who also owns Makerbot) had nothing to do with copyright law.  Instead, they were focused exclusively on a parade of horribles where airplanes fall out of the sky and medical implants kill people because counterfeit material was used in a 3D printer to manufacture a critical part.  Needless to say, these are not the types of harm that copyright law was originally intended to address.

The Decision Today

Today’s decision does a few things right.  First, the Librarian of Congress and Copyright Office state that circumventing a digital lock in order to use your own material in a 3D printer is “likely noninfringing as a matter of fair use or under section 117.”  The Librarian of Congress and Copyright Office do not have the power to determine what is and is not fair use or to formally bless something as violating or not violating copyright law.  However, it is nice to see them stand behind the idea that the activity covered does not violate copyright law.

Additionally, the Librarian of Congress and Copyright Office actually grant the exception.  That is great news.  As a high level matter, both the Librarian and the Copyright Office are endorsing the idea that using your own material in a 3D printer does not violate copyright law.  

But then they add some caveats to the exemption. And the caveats get weird.

Developing the Caveats

During the hearing and in follow up questions, the Copyright Office struggled with the parade of horribles from Stratasys (although the rules ultimately come from the Librarian of Congress, the Copyright Office holds the hearings on the exemptions).  This struggle was hard for the Copyright Office because, well, they are the Copyright Office.  They have no expertise about medical device safety or keeping airplanes from falling out of the sky.

One way to address this lack of expertise would be to recognize that part of the reason that the Copyright Office knows nothing about medical and airline safety is because those are not copyright issues.  Instead of trying to deal with those issues through copyright law, the Copyright Office could rely on the federal agencies tasked with regulating those areas to find a way to protect the public that is completely independent of copyright law. Such regulation is, in fact, possible.

Instead, the Copyright Office devoted part of the hearing to exploring these issues.  This part of the hearing was essentially a waste of time because both the people asking the questions (the Copyright Office) and the people answering the questions (myself included) know nothing about the regulatory systems in place to protect public safety in relation to manufactured objects.

After the hearing, the Copyright Office tried to address these concerns again by proposing a distinction between “commercial” printers and “personal” printers in follow up questions.  Both proponents and opponents of the exemption essentially rejected this distinction as nonsensical and tried to steer the Copyright Office away from it.

Undaunted, the Copyright Office appears to have decided to press on.

The Caveats

The general exemption is limited by caveats designed, in the words of the ruling “to address regulatory and safety issues.”  I want to pause here to emphasize again that there is no reason to think that the Librarian of Congress or Copyright Office has any special expertise on issues of regulatory or safety issues, and that it is a stark reminder of how copyright has spread to every aspect of our lives that they would even consider these far flung issues in a copyright proceeding.

That aside, the exemption grant is limited by the following language:

“The exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight…”

It is here where the Librarian of Congress and Copyright Office fall of their ice skates, break both legs, and vomit all over themselves.

What Does This Mean?

This caveat is a disaster for at least two reasons.  First, “goods or materials … subject to legal or regulatory oversight” is pretty close to being the equivalent of “everything.”  At a minimum, tort laws such as product liability oversee just about every object out in the world, and tort laws are certainly a type of legal oversight.  In addition, there are an almost uncountable number of object-specific regulatory regimes that could oversee any given object.   The “use in commerce” element arguably narrows the scope of that a bit, but “use in commerce” can also be interpreted fairly broadly.  Very little additional information is given in today’s rule to help interpret these terms.

This is exacerbated by the second reason.  As constructed, the exemption applies to the printer, not the use.  By stating that “the exemption shall not extend to any computer program on a 3D printer that produces goods…” it focuses on the possible use of the printer, not the possible specific use.  Read strictly, even if you wanted to only produce that magical good that was not intended to be used in commerce and was not subject to legal or regulatory oversight, you couldn’t unless you had a printer that could only produce those goods. As soon as you had a printer capable of printing objects that could be used in commerce and subject to legal oversight – that’s every printer – you fall outside of the scope of the exemption. (edit: I originally included an extra “to” before “extend” in the quote above and mistyped “on a 3D printer” as “or 3D printer.” I don’t believe that these typos change the analysis, although they do highlight how quickly I was typing this morning.) 

By trying to draw a distinction that both sides of the debate cautioned against, the Librarian of Congress and Copyright Office have created a situation where the caveats devour the entire rule.

Going Forward

To recap, on the plus side the Librarian of Congress and the Copyright Office recognized that using your own material in a 3D printer is not copyright infringement.  They also formally granted an exemption from the rules that would make breaking the digital lock on a 3D printer in order to use your own material illegal.

On the minus side, in an attempt to address a suite of concerns they know little to nothing about, they undermined that exemption by creating a carve out that includes every 3D printer I can imagine.

The real take away is that when copyright gets into areas that no one originally intended things start to break.  It is unreasonable to expect one legal doctrine to be able to regulate all possible harms in all possible arenas.  Hopefully this can serve as a strong example as to what happens when you start to see copyright everywhere.

update: Just to be clear, this entire undertaking is only relevant if your printer does a check to verify that your filament came from an approved source before printing.  If your printer doesn’t do that - and certainly many personal printers don’t - then this proceeding has no impact on you.  Use whatever filament you want.

This post originally appeared on the Shapeways blog.

Today Shapeways is proud to join with our colleagues at Etsy, Foursquare, Kickstarter, and Meetup in urging the White House to begin exploring the possibility of an online safe harbor for trademarks.  We believe that a statutory safe harbor for trademark use online would increase the free flow of information online and empower individuals to push back against abusive uses of trademark.  If you read these last two sentences as “words words words” but are still curious what those words mean, let me take a moment to explain what we are talking about.

The United States has what is known as a safe harbor for websites that allow other people to post content to them (that includes all of the sites mentioned above, and a huge number of sites in the world).  As a general rule, users – not websites – are liable when a user posts things that infringe on the copyright of others.  Without this protection websites would have to individually screen every single post, model, photo, and comment for a copyright conflict before posting them.  In practice, that would mean that there would be a lot fewer sites that allow others to post content online.

One of the conditions of this safe harbor protection is that when a website operator is informed by a rightsholder that something uploaded to the site is infringing, that website operator takes down the allegedly infringing content.  Because this process is governed by a law called the  Digital Millennium Copyright Act (shortened as the DMCA), these kinds of takedown requests are sometimes known as “DMCA takedowns.”  (This epic tale of Eulice and Abbas explains how we handle these types of requests at Shapeways.)

One important feature of this safe harbor system is that, in addition to giving rightsholders the ability to request content be taken down from a website, it also gives the original uploader the ability to request that the content go back up. This ability to push back against takedown requests provides a critical check against abuse of the takedown process.

The safe harbors are critical to the ability of users to push back against abusive takedown requests.  Since the website is protected from liability, a user does not need to convince the website that it is worth it for the website to go to court in order to challenge a takedown.  Instead, the website can get out of a user’s way and let the user challenge the takedown request if the user decides that it is worth challenging.

Similar safe harbor systems exist for things like accusations of defamation.  By pulling the website out of the equation, it is up to users to decide if a conflict is worth pursuing.  Even if a website doesn’t want to risk its entire business on a dispute, the person who stands accused is empowered to fight for rights she feels are important.  On balance, this makes the internet a richer place.

Currently, these types of formal statutory safe harbor protections do not exist for  trademark disputes.  The result is that there are many fewer checks on trademark owners who might want to exceed their rights and suppress a user.  In practice, a user who wants to challenge an accusation of trademark infringement and have their content re-posted must convince the website that re-posting the content is worth going to court over.  Not surprisingly, that can be a hard argument to make.

The filing today is designed to highlight this problem for policymakers.  It is the first step in what will inevitably be a long process towards finding a solution that works for trademark holders and users.  We’ll keep you updated as it evolves.  In the meantime, if you have any questions or comments we’d love to see them below.

This post originally appeared on the Shapeways blog.

This is the fifth post in a series about different types of rights that could be involved with models and files here at Shapeways.  Today we’re talking about what happens to rights in models after the model is sold.

Most of the posts in this series are about the rights of creators and about how those rights give creators control over their creations.  This post is something of the inverse.  It focuses on the rights of people who acquire those creations.  Specifically, it focuses on what happens to a creation after it is sold.

At its most basic, the concept of copyright “first sale” is that when you sell something to someone else, that something is theirs.  Your decision to sell the object means that you are giving up your ability to control that object.  Without first sale there would be no such thing as used record stores or libraries, yard sales would be a lot smaller, and eBay may never have gotten off the ground.

The Object is Not the Copyright, the Copyright is Not the Object

In thinking about first sale it is important to keep in mind the difference between the copyright for the object and the object itself.  This distinction is easy to understand once you have concrete examples. If you buy a copy of a book like Neal Stephenson’s The Diamond Age, you own that copy of the book.  You can do whatever you want with that book – you can lend it to a friend, sell it at a yardsale, or cut it up and turn it into a collage.

You do not, however, own the copyright in Neal Stephenson’s The Diamond Age.  Without owning the copyright to the underlying book, you cannot make a bunch of copies of The Diamond Age and start selling them, or turn The Diamond Age into a musical, or sell a the German translation of The Diamond Age you created.

Fundamentally, the difference between these two sets of rights is the difference between owning a copy of something protected by copyright and owning the copyright itself.  Owning a copy of something gives you the ability to control that copy, but not over the work itself.

First Sale Applies to 3D Printed Objects Too

The same applies for copyrightable objects sold here on Shapeways.  If you sell a model on Shapeways, the buyer of the model owns it.  That buyer can paint it however she likes, give it to her cat, or resell it without getting permission.  However, that buyer cannot create copies of the object without first getting your permission simply because she purchased a single copy from you.

There are some potential exceptions to this. If I buy something from you and then try and resell it as my own work I may be engaging in fraud.  And in some cases happening in some places, mislabeling a model’s title or creator could run afoul of what are known as moral rights.  These are rights related to copyright designed to allow creators to assert their association with a work.

All that being said, in most cases there is nothing illegal about someone purchasing 3D printed models and reselling them somewhere else.

What Should I Do if I Discover Someone Reselling My Stuff?

Assuming you were paid for the models, the reseller probably is not breaking the law.  They are, however, giving you some potentially useful information about your models.  If the reseller is successful, that means that there is a significant market for you work.  That’s a good thing.

It also means that you may be under-pricing or under-marketing your models.  If a reseller can make money by buying your models at retail and reselling them somewhere else, that may mean that you are leaving money on the table with your retail price.  If a reseller has found a profitable market for your models that you didn’t realize existed, maybe it is time to explore that market yourself.  Of course, it may be easier to let the reseller pay you for your model and then explore that market themselves.  Remember that every customer that pays the reseller is also a customer that is paying you for the original model.

Two Caveats and One Place for Additional Reading

Caveat number one: none of this applies if the reseller (or anyone else for that matter) is making unauthorized reproductions of your copyright-protected model.  First sale does not protect someone making such copies, even if they are basing them off a legitimate copy they purchased from you.  You did not sell your copyright in the object when you sold the object itself, and first sale will not prevent you from asserting your rights.  If you discover someone making unauthorized copies of your models, it may be time to reach out to them and/or talk to a lawyer.

Caveat number two: if you are worried about fraud (such as someone passing your models off as their own) you should reach out to the platform hosting the fraudulent models for sale. Their terms and conditions almost certainly prohibit fraud (ours here at Shapeways certainly do).  If someone is committing fraud on their site they will want to know.

One place for additional reading: like many copyright concepts, the first sale doctrine was developed before the internet and digital goods.  Figuring out what first sale means in the context of digital goods can be complicated.  Sherwin Siy over at Public Knowledge has put together an interesting look at how we could make digital first sale work better.

This post originally appeared on the OSHWA website.

Last weekend, during the Open Hardware Summit, OSHWA unveiled version 1 of the Open Source Hardware Certification.  This certification was the result of a community discussion process that began back on June 2^nd and continues to this day.  Since the announcement there has been a great discussion about the certification, including onHackaday (including in the comments), in the comments for the original announcement, and on the Evil Mad Scientist blog.  Those discussions have raised some concerns and shed light on some potential misunderstandings, and it seemed reasonable to begin to address both with a blog post.

First, OSHWA appreciates that the community takes this proposal seriously enough to discuss and debate it in the first place.  It is called version 1 for a reason, and we pushed it forward knowing that it would inevitably evolve over time.  That being said, we feel that the current proposal addresses many of the concerns that led to the start of this process in the first place.

What the Certification is Not

The OSHWA certification is not designed to place restrictions on the use of the term “open source hardware” or to restrict how people use the open source hardware open gear logo.  Nothing in the proposal requires anyone to use the certification, or gives OSHWA the power to sanction a project that decides – for whatever reason – that the certification is not for them.

The certification is not designed to force everyone doing open source hardware into a single box, or to exert exclusive control over the world of open source hardware.  Such a task would be impossible, and counter to the purpose of OSHWA.

What the Certification Attempts to Do

Instead, the certification process is designed to be an addition to the open source hardware landscape.  It is being created to address a concern that has been raised a number of times by the community – easily the #1 request we get from the community and OSHWA members.  In Windell Oskay’s post about the certification on Evil Mad Scientist, he accurately sums up the problem:

“But there is something [] rotten, deeply rotten, in the world of open source hardware. And that is that the label “open source hardware,” either in words or represented by the OSHW logo (the keyhole-gear thing above) has been misused so much that it can’t really be trusted.

If you put that label on a piece of hardware, we might expect that this hardware meets the open hardware definition. The definition specifies (amongst other things) that you should be able to obtain the original design files (the “source”), and use them without a “noncommercial use” restriction (the “open”). But it seems like every day I hear about some drone, robot, or development board that turns out to be OSHWINO —Open Source Hardware In Name Only.”

This problem has a number of causes, including some of the licensing challenges related to open source hardware.  Regardless, the certification was the result of OSHWA trying to find a way to give both creators and users of a piece of hardware a degree of certainty that hardware that called itself open source hardware actually complied with a commonly understood definition of open source hardware.  That is, while anyone can call themselves open source hardware, only hardware that actually complied with the rules set out by OSHWA could call itself OSHWA-certified open source hardware.

The Value of Certification

There is no intrinsic value in certification.  For users, it only matters if they feel that a certification provides them with useful information about a piece of hardware they are considering spending time with.  For producers, it only matters if they believe that people will look for the certification and care if they find it.

Neither of these results are inevitable. Fortunately, if it turns out that the certification is not useful to people, it dies a quiet death of neglect.

OSHWA believes that – properly executed – it will be useful.  That is why we are spending the time to create it and present it to the community.  But it may be that there really isn’t a demand for a way to know that open source hardware complies with a commonly held definition of openness.  Or it may be that there is a demand for such a thing, but that this certification isn’t the right way to achieve it.  In either case, OSHWA will go back to the drawing board to try again.

Enforcement

Some members of the community have raised concerns about the enforcement mechanism for noncompliance, specifically the fines.  As was explained in the presentation at the Summit, the enforcement mechanism is an attempt to balance two competing concerns.

On one hand, there has to be a way to punish bad actors who use the certification without complying with it.  That punishment must be significant enough to deter abuse.  Escalating fines are a good way to do that.

On the other hand, we are in the early days of open source hardware and there are not well established ways to apply the definition and best practices to every situation.  In light of that, it is critical that creators acting in good faith have plenty of opportunities to discuss their goals and work towards a resolution before penalties are applied.  The earliest stages of enforcement are designed to create that space.

OSHWA believes that the enforcement process outlined in the certification balances those two concerns.  When reading the certification, it is important to remember that no one has to use the certification and that OSHWA has neither the interest, power, nor authority to punish projects that simply describe themselves as open source hardware and/or use the open gear logo.  The entire regime only applies to projects that decide to opt in to the certification process.

Where We Go Now

The first hard part was taking a proposal through a process of community feedback and discussion.  The next hard part is developing the legal license that will make the system described in the certification document enforceable for projects that opt in.

The execution of this next part is important as the development of the specification itself.  We are cognizant of that, and are doing our best to create licensing language that is clear, approachable, and accurate.  Part of doing that means being as transparent as possible about the process, and open to community feedback.  That is why we launched this idea with a call for community input, and why this blog post exists today.

If you have concerns about the proposal, let us know.  You can use the comments below, contact us, or open a discussion in the forums.  In the meantime, we’re going to focus on finalizing the certification process and not screwing it up.

This certification originally appeared on the OSHWA site.

This is version 1 of an official certification for open source hardware housed in the Open Source Hardware Association.  It outlines the purpose and goals of such a certification, and establishes the mechanisms for the operation of the certification process itself.

Primary Goals

• Make it easier for the public to identify open source hardware.
• Expand the reach of open hardware by making it easier for newer members to join the open source hardware community.

Brief Overview

This is an open source hardware certifications administered by OSHWA.  Users will self-certify compliance in order to use the certification logos.  In doing so, they will submit to oversight and enforcement by OSHWA.

This certification is designed to benefit at least two parts of the open source hardware community.  First, it benefits purchasers of open source hardware by making it easy to identify truly open source hardware in the marketplace.  Projects and products obtaining certification and displaying the certification logo clearly communicate a commonly agreed upon definition of openness with customers and users.  While certification is not a condition for openness, obtaining certification is a way to make it clear to others that a given project is open source hardware.

Second, the certification benefits creators of open source hardware.  By giving creators specific guidelines, certification allows open source hardware creators to confidently declare their projects and products as open source hardware.  Certification also allows creators to defend that declaration by pointing to compliance with specific criteria defined in the certification process.

The certification will operate as a self-certification.  Creators will not apply to OSHWA for certification.  Instead, creators will self-certify compliance with certification standards.  Self-certification will give creators the right to use the OSHWA open source hardware certification logo.  As part of the self-certification process, creators will agree to subject themselves to penalties for non-compliance.  OSHWA will be responsible for enforcing those penalties.

Clarifying Openness

While open source hardware is already well defined, one of the greatest challenges in creating an open source hardware certification is determining how to handle non-open components.  Full openness is a worthy goal, and companies and projects that strive towards it should be identified and commended. However, many well-known open source hardware projects and products strive towards openness but, by necessity, incorporate non-open components.   The open source hardware definition recognizes this reality, and provides guidance on how best to handle non-open components in the context of open source hardware.

In order to address this challenge, the OSHWA certification focuses on the creator’s contribution.  For the purposes of the certification, openness will be determined by the openness of the contribution made by the creators of the project.  A certified project will be required to share its entire contribution (including the contribution of affiliated corporate entities, if appropriate) in accordance with the open source hardware definition, but not expected to avoid third party closed components beyond its control.  A certified project should use open parts over equivalent non-open parts when they are available.  However, no project will be found in violation of the certification simply because it incorporates non-open parts beyond its control.

Finally, certifications are not available aspirationally.  A project or product that intends to be open source but is not yet open source is not eligible for certification.  This includes pre-production projects such as Kickstarter campaigns.  If the certification is used in a Kickstarter-type campaign, the project must at that time be in compliance with certification requirements.  To avoid confusion, projects should not advertise their intention to comply with certification standards until they have met certification standards.

Creator’s Contribution

The creator’s contribution is defined at everything within the creator’s control.  While some elements of a project may come from third parties beyond the scope of the creator’s control (for example, hex-only source files versus the full stack), the creator is required to fully open and document all elements within their control in compliance with the open source hardware definition.  If the creator is or is employed by a corporation, this obligation extends to any elements within the control of that corporation and associated entities.  This requirement is specifically designed to prevent corporations from creating “open subsidiaries” that make use of corporate technology without having to open the technology itself.  In some ways, this requirement can be thought of as a rule of “do the best you can,” while recognizing that the openness of some elements is beyond the control of any individual creator.

Certification

OSHWA open source hardware certification will operate on a fee-free, self-certifying basis. OSHWA will maintain a list of certification requirements at OSHWA.org, and creators are required to notify OSHWA that they intend to make use of the certification.  This notification will take the form of an email to a dedicated email address and its contents will be publicly displayed on the OSHWA website.  Notification will be intentionally lightweight, and OSHWA welcomes the creation and continued development of rich third party databases and listings of open source hardware projects and products.

By using OSHWA open source hardware certification logos and seals,  a creator is attesting that she is in compliance with all relevant requirements and is agreeing to comply with any penalties imposed by OSHWA for misuse.

Enforcement

OSHWA will work to enforce the use of certification marks and invites third parties to bring violations of certification marks by way of informal complaints.  Upon investigation of an alleged violation, OSHWA may impose escalating penalties for violations.  Alleged violators may elect to remove the OSHWA certification logo instead of remedying the violation.  In order to avoid penalties in such situations, alleged violators will be required to comply with a notification regime instigated by OSHWA designed to communicate the decision to impacted parties.

Complaints

Complaints are not required for OSHWA to initiate an investigation of a project or product.  Complaints can be brought by anyone if the complainant believes that an OSHWA open source hardware certification is being used without complying with requirements.  Complainants are highly encouraged to reach out to the potential violators before contacting  OSHWA – many good faith errors can easily be resolved once they are brought to the attention of responsible parties. If that direct contact fails to resolve the concern, complaints should be sent to a dedicated email address and should include as much information and context as possible in order to assist investigation.  Complaints will be investigated at OSHWA’s discretion.  As a general rule, complaints cannot be made anonymously to OSHWA.  However, unless it is relevant to the investigation, OSHWA will avoid disclosing the identity of the complainant to the target of the complaint.  Additionally, OSHWA reserves the right to allow anonymous complaints in extraordinary circumstances.

Penalties

Penalties for the use of OSHWA open source hardware certifications are designed to make it easy for violators to return to compliance (or become compliant in the first place).  As such, penalties are designed to escalate over time, giving violators multiple opportunities to comply before the imposition of significant penalties.  For each level of penalty, OSHWA will make best efforts to communicate with the party responsible for the project or product in question.  The responsible party will have a reasonable amount of time to respond to the complaint and to each layer of penalty before OSHWA imposes additional penalty.  OSHWA alone will determine if a project or product is in compliance and when to impose penalties.  As appropriate, OSHWA will lift penalties when projects become compliant.  Enforcement will consist of:

• Bringing the alleged failure to comply to the attention of the responsible party and giving the responsible party an opportunity to respond and/or correct
• A second attempt to contact the responsible party to structure a path towards compliance
• Public listing of the non-compliant project or product on the OSHWA website
• Monthly fines not to exceed $500 per month
• Monthly fines not to exceed $1,000 per month
• Monthly fines not to exceed $10,000 per month