While the IP saga of Left Shark lives on, at this point I think we have enough distance to try and determine if there are any larger lessons to be learned from this entire enterprise.  From where we stand today I think it is safe to say that there is at least one.

As I’ve said more than once, one of the biggest issues connected to IP and 3D printing will simply be the process of people figuring out that not everything coming out of a 3D printer is protected by copyright.  This is a huge shift from the past 15+ years, where the thing that most non-lawyers thought they needed to know about IP was “everything on your computer screen is protected by copyright.”  The idea that just because someone (or some brand) is associated with an object doesn’t always give them the right to control that object flies in the face of that “folk copyright” and will take years to explain to people.

Sometimes neither side in a dispute will fully understand this concept.  Other times one side will and the other won’t, and hijinks will ensue.  But it may be that the real legacy of Left Shark will be to illustrate what happens when large purported rightsholders try and bluff their way through a conflict.

Although there are plenty of reasons to be annoyed at Katy Perry because of her attempts to control Left Shark, the one that seemed to annoy the most people was that she was trying to assert rights she simply did not have.  Given the content (and missing content) of the letter, it seems at least likely that her lawyers understood that they did not actually have the right to demand the takedown of Left Shark but sent a scary letter anyway.

That gives rise to the lesson of Left Shark - however mad people get when a rightsholder pulls something beloved down from the internet, they get even angrier when someone pretending to be a rightsholder pulls something beloved down from the internet.  In other words, there are real costs to overplaying your hand and trying to control objects, files, and ideas outside of your legal control.  There are people willing to push back.

It is way too early in the history of widespread access to 3D printing to know if this type of reaction is a one-off or the beginning of a trend.  And I don’t know if we will be richer or poorer as a people if “to left shark” evolves into a verb for overplaying your IP hand in the world of 3D printing.  So for now all that needs to be said is that there is a lesson to be learned here and that I hope that rightsholders are paying attention.

This post originally appeared on the Make: blog on April 30, 2015.

The Copyright Office needs to hear that people want to be able to use whatever materials they choose in their 3D printers. Click here to add your voice.

Want to know more?

For the past few months, the Copyright Office has been holding a process designed to decide if people can do all sorts of legitimate things like unlock cell phones, make fair uses of videos on DVD, and repair their cars and tractors without violating part of copyright law in the Digital Millennium Copyright Act (DMCA). Objections to doing those things were released earlier this month, and replies to those objections are due May 1.

One request that is part of this process is a request to prevent copyright law from getting in the way of people using the materials of their choice in their 3D printers. The request is necessary because some 3D printer manufacturers use control technologies like verification chips and RFID tags to make sure that their printers can only work with materials that the manufacturers themselves sell. If you try and use “unapproved materials” in these printers — even if you own them — you could be sued for violating the DMCA.

The biggest objection to this request came from the 3D printing company Stratasys. Among other things, Stratasys dismisses the idea that anyone actually wants to use unapproved materials in their 3D printers, or that legal uncertainty would reduce the chances of someone feeling comfortable doing so:

“The only alleged evidence of any person experiencing uncertainty [around using unapproved materials in a 3D printer] consists of a single quote from a comment on a web forum … [a]t a minimum, this comment is merely conclusory or anecdotal evidence that is insufficient to meet the substantial adverse impact standard required by the statute.”

The coalition fighting for a right to access and repair digital objects needs your help to show that there is more than a single person on a web forum interested in using materials in 3D printers without permission. We need you to tell the Copyright Office that copyright law should not stand in the way of using whatever material you choose in a 3D printer.

Please click here to weigh in, and please spread the word!

The Radio Free Culture podcast at the Free Music Archive (which is at the Bergmayer-approved WFMU) let me come on to talk about 3D printing and IP this week.  They also gave me some soap.

This article first appeared in Techdirt on April 28, 2015.

When your car runs out of gas, you can fill it up at any gas station you like. You never worry if the company that made your car has an exclusivity deal with one gas station or another, or even if that company has a preference for one brand of gas. In fact, you would probably find it some combination of ridiculous, galling, and offensive if the company that made your car threatened you with a copyright infringement lawsuit if you didn’t go to their preferred gas station to fill up.

This dynamic is true for all sorts of things. Once you buy it, it is up to you to decide how you maintain it and replace what needs replacing. This is true of gas in a car, water in a bottle, and filters in a vacuum cleaner. But as software gets introduced into more and more everyday objects, some companies are trying to stretch copyright law beyond its limit in order to lock you into buying replacements only from them.

A decade ago, we saw this play out with 2D printers and toner ink. Some companies that made printers decided that they would prefer that consumers buy replacement toner (at a substantial markup) only from them. In order to attempt to lock themselves in as the only place to buy replacement toner, these companies designed their printers to look for a special verification chip on new toner cartridges to prove that the new cartridge came from them. When another company figured out a way around these chips, the printer manufacturers ran to copyright law to try and shut them down.

Fortunately, the courts saw through this ruse and were able to recognize that allowing consumers to choose where they get replacement toner for their printers has nothing to do with copyright law. Unfortunately, today some 3D printer manufacturers are trying this same gambit and hoping for a different outcome.

In a proceeding in front of the Copyright Office, 3D printer manufacturers offer a parade of horribles of what will happen [pdf] if users are free to choose the materials they use in their printers. Notably, none of these have anything to do with copyright. The only connection any of this has with copyright is that the printer manufacturers use a small line of code to verify if they sold the refills.

Just as adding a verification chip to a gas tank shouldn’t be used as a pretext to lock a car owner into a single source of gasoline, adding a verification chip shouldn’t be used as a pretext to lock a 3D printer user into a single source of 3D printing material.

3D printing is an emerging engine for innovation, and because of that this issue would be important even in isolation. However, the battle being fought over 3D printer material occurs against the backdrop of other attempts to use copyright as a pretext to limit consumer choice in all sorts of contexts. Be it accessing data from medical devices implanted in your body, repairing farm equipment that breaks down in the field, or unlocking your cell phone, the current proceeding before the Copyright Office – known as the “1201 triennial” after the part of the law that created it – is a preview of a future where manufacturers have the power to lock consumers into whatever they please.

That is what makes the Registrar of Copyrights’ decisions so important in this proceeding. Not only will the right decision clear the way for consumer choice. Strongly siding with users and against copyright creeping into everything sends a strong message that copyright has its purpose, but that it should not be abused.

Many of you will likely remember that shortly after the Super Bowl there was a bit of a thing here on Shapeways in connection with a model of Left Shark.  To briefly review and condense the timeline: person awkwardly dancing inside shark costume during the halftime show rockets to internet fame.  Designer Fernando Sosa creates 3D model of the newly christened “Left Shark” and starts selling it on Shapeways.  Katy Perry’s lawyers send Shapeways a nastygram asserting rights in Left Shark.  Fernando Sosa responds, questioning if Katy Perry has any rights in Left Shark at all.  Left Shark makes its triumphant return to Shapeways.  (In a B story that foreshadows today’s news, Katy Perry then uses Sosa’s Left Shark as part of her trademark application).

Today the Left Shark IP story that never ends added a new chapter.  As was widely reported, Katy Perry’s application to register the Left Shark costume as a trademark was denied by the United States Patent and Trademark Office (PTO).  What does this actually mean?

As attorney Mark H. Jaffe (who has been all over the trademark angle of this story on twitter) reminded us this morning, this refusal by the PTO is an initial refusal. That means that Katy Perry still has an opportunity to respond, and to modify her application in order to improve its chances of being approved.

Another thing to keep in mind is that trademark is different from copyright.  Trademark is all about helping consumers match a service to a service provider.  That means that a big part of getting a trademark is showing that people use it to identify your services or goods, and to distinguish them from other services or goods in the marketplace.

Enough with the background – what actually happened?

Katy Perry (well, Katy Perry’s company Killer Queen LLC) applied to use the Left Shark costume as a trademark to identify Katy Perry-related goods and services in the marketplace.  In refusing the application, the examiner essentially found that Left Shark does not identify Katy Perry’s “musical or dance performances” in the marketplace. Essentially, the examiner found that Left Shark represents Left Shark and not Katy Perry to consumers.  When people see Left Shark figurines, or Left Shark on cell phone covers, mugs, and sweatshirts, they don’t think “Katy Perry.”   They think “Left Shark.”

Now Katy Perry has some time to respond to the PTO for both the costume registration and the words “Left Shark.”  Until she does, and until the PTO accepts the marks, Katy Perry does not have a trademark in Left Shark.

Surely the legal machinations surrounding Left Shark will outlast the half-life of Left Shark’s fame by a few orders of magnitude.   So keep your eyes on the Shapeways blog for all of the latest news.