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

This post originally appeared on the Shapeways blog.

This is the fourth in a series of posts about different types of rights that could be involved with models and files here at Shapeways.  Today we’re talking about trademarks.

Without a trademark it can be hard to tell if this ketchup will be tasty or free of poison. Image: flickr user Steven Depolo.

Imagine walking into the dystopian store of your nightmares to buy ketchup.  The store is selling ketchup in three different bottles that look like they come from different places, but none of the bottles have any labels.    You look at the three bottles, unable to figure out which one will taste the way you expect (and also not make you sick).  Finally, motivated by an eerie sense that you are running out of time, you grab a bottle at random and hope for the best.

A few hours later, all of your friends arrive at your BBQ.  If your ketchup choice turns out to be wrong, you can blame the lack of trademarks in your nightmare store.

While both cards include the “Local 44” trademark, only one of them really comes from the bar. Can you spot the counterfeit? Image: Flickr  user Travis Goodspeed.

Trademarks are words, names, and symbols that serve to identify the source of a product.  Fundamentally, trademarks are about consumer protection: when you see ketchup with a trademark on it, you should be confident that the company who owns the trademark stands behind that ketchup.  If someone else is passing off their own ketchup labeled with a brand name that you trust (a behavior known as counterfeiting), you might buy it expecting one thing only to discover later that it is quite another.

Because of this consumer protection role, spotting trademark infringement is a bit different than spotting, say, copyright infringement.  In disputes about copyright infringement, the core question is “did the defendant make a copy?”  In disputes about trademark infringement, the core question is “is the use of the mark likely to cause confusion?”

There are plenty of uses of a trademark that can constitute trademark infringement.  But there are also many ways to use a trademark without permission that are perfectly legal.  The “likelihood of confusion” test is at the core of classifying any given use.  The more likely a use is to suggest that the good is associated with a trademark holder, the more likely it is to be infringement.  Conversely, the less likely a use is to suggest that the good is associated with a trademark holder, the less likely it is to be infringement. While using (or “copying”) the trademark is part of that analysis, it is far from the final question.

Enter ShapeBoard

Preliminary artist’s rendering of ShapeBoard.

In order to illustrate how this would work, imagine that Shapeways has just rolled out a hoverboard that we are calling the ShapeBoard.  (Note that I’m not saying that we are working on a hoverboard.  I’m also not not saying that we are working on a hoverboard.)  Assuming you did not have permission from us, how could you use our ShapeBoard trademark?

Preliminary artist’s rendering of the ShapeBoard logo.  Note that Shapeways could have a trademark on both the word “Shapeboard” and the specific appearance of the world Shapeboard in the logo.

In thinking through these examples of potential uses, it may be helpful to keep this three part test in mind.  This test originally came from a case involving The New Kids on the Block because, well, why not?  Although this is a United States-based test, many other countries treat trademarks similarly.

1. Do you need to use the trademark in order to identify what you are talking about?
2. Are you only using as much of the trademark as is reasonably necessary to identify what you are talking about?
3. Are you avoiding any suggestion that the trademark holder is sponsoring or endorsing what you are doing?

Talking about ShapeBoard.  This might be obvious, so I’ll get it out of the way early.  You don’t need Shapeways’ permission to talk about ShapeBoard.  You can say or write “SO excited about ShapeBoard!” or “My ShapeBoard is coming tomorrow!” (or, I suppose, “Meh, ShapeBoard”) without getting the permission of Shapeways.  This makes common sense and it also makes sense in the context of those three tests.  It would be pretty hard to talk about the ShapeBoard without using the word “ShapeBoard” and you need to use the entire word “ShapeBoard” in order to do so.  Finally, saying that you are excited about ShapeBoard does not imply that you are working with Shapeways or that Shapeways is endorsing you.

Comparing ShapeBoard to things.  You also don’t need Shapeways’ permission to compare ShapeBoard to things.  Let’s say you are coming out with your own hoverboard.  You can say that “YouBoard is 20% cheaper than ShapeBoard” or that “YouBoard comes in 5 fewer colors than ShapeBoard” without infringing on the ShapeBoard trademark.  Again, this makes sense in the context of the test – you are only using ShapeBoard to the extent necessary to make the comparison and nothing you say suggests an association between you and ShapeBoard.

Talking about ShapeBoard compatibility.  Instead of launching a rival hoverboard, you decide to get into the ShapeBoard accessory business (no offense to the YouBoard, but if the ShapeBoard exists it is pretty awesome so it is probably better to hop on the bandwagon).  You roll out a line of 3D printed ShapeBoard fins, ShapeBoard bumpers, and ShapeBoard hover-mechanism-tuners.  What is the best way to talk about them?  Obviously, you are going to need to use the term “ShapeBoard.”  After all, it would be pretty hard to explain to people that you are offering fins for the ShapeBoard without using the term “ShapeBoard.”

But don’t forget about the third part of the test.  You want to avoid suggesting that your fins, bumpers, and hover-mechanism-tuners come from Shapeways because Shapeways is not endorsing them.  That’s where clear terms like “ShapeBoard compatible” or “works with ShapeBoard” can come in.  They avoid creating confusion among customers while still making it clear that your stuff works with ShapeBoard.

Disclaimers.  Disclaimers can also be useful for addressing the third part of the test.  Adding language to the description of your ShapeBoard compatible fins that clearly states that they are not affiliated in any way with ShapeBoard or Shapeways, and that the term ShapeBoard is used for comparison purposes only, can help get you on the right side of that part of the test.  Remember, if you really are using the term ShapeBoard in good faith (as opposed to trying to trick customers into thinking that your fins came from Shapeways), this type of disclaimer should be easy to write.

If you are conscientious, there are many legitimate ways to use trademarks even if you don’t have permission from the trademark owner.  The important thing to remember is to avoid suggesting any sort of association or endorsement from that trademark owner.  That being said, these types of rules tend to be highly fact and context specific.  This blog post is not a substitute for legal advice, and if you have a specific question you should consider consulting an attorney.  If you would like more information about using trademarks, the Digital Media Law Project has a good overview on using the trademarks of others (although it is no longer being updated it provides some great foundational information).  The International Trademark Association also has good information with international examples.

This post originally appeared on the Shapeways blog.

This is the third in a series of posts about different types of rights that could be involved with models and files here at Shapeways.  Today we’re talking about disputes over ownership.

There are two obvious alternative headlines for this blog post: “Someone is using my IP on Shapeways without permission – what should I do?” and “Someone just accused me of using their IP without permission – what should I do?”  The short, and correct, answer to both of these questions is “Find instructions about what to do in ourcontent policy.”  After all, our content policy is the definitive document that explains how we handle all IP-related (that’s intellectual property-related – think copyright, trademark, and patent) takedown notices.  However, sometimes it is helpful to walk through the IP takedown process in a slightly less formal way.  That’s what this blog post is all about.  It will explain all of the steps of our process and, hopefully, give you a better sense of how it all fits together.  Large parts of this process are governed by the “notice and takedown” process created in the United States by the Digital Millennium Copyright Act (often known by its abbreviation the DMCA).

Let’s start with Abbas.

Abbas creates models of mammoths based on field sketches he likes to make while traveling in his time machine.  Here’s one of his sketches that he eventually turned into a 3D model:

You might wonder why there are typed words around his sketches or what impact time travel has on copyright status.  Let’s just agree to put those questions aside for the duration of this blog post.  For the purposes of this post, at the moment you are reading these words Abbas has a valid copyright in his model of a mammoth.

One day Abbas is checking out the great models on Shapeways and discovers Eulice’s shop.

Abbas sees a model of a mammoth that he thinks looks familiar and believes that Eulice is infringing on his rights.  He wants Eulice’s model taken down.

Takedown Notice

Abbas’ first step is the Shapeways content policy.  The content policy first urges Abbas to reach out to Eulice directly to talk about his concern.  This isn’t a legal requirement, but it is often a good idea.  Many disputes of this type are resolved without taking any formal legal steps, something that is often better for both parties.

Abbas’ next step, if he decides not to contact Eulice, Eulice doesn’t respond to his note, or Eulice’s response to his note is inadequate, is to file a formal takedown request.  This takedown request, sometimes also known as a DMCA takedown notice, is an official legal request to take down Eulice’s model on Shapeways.

That has a few implications for Abbas. First, as with any formal legal action, Abbas should be sure that he understands what he asserting in his request.  That may require talking to a lawyer to make sure that he fully understands the elements of copyright infringement.  As detailed on the content policy page, a formal takedown request must include some required elements.  The request must specifically identify what Abbas wants to be taken down.  In this case, that is probably going to be the Shapeways URL for Eulice’s model.  If Abbas’ notice simply says “there is a mammoth somewhere on Shapeways that I believe infringes on my copyright,” the notice will be sent back to him.

The other important element of the takedown notice is a statement by Abbas that he has a good faith believe that Eulice’s model infringes on his right.  He needs to sign this statement and attest, under penalty of perjury, that it is correct.  This requirement is intended to create a cost for sending frivolous or baseless takedown requests that get sent to Shapeways.  Once completed, he sends his notice to service@shapeways.com.

Shapeways Trust and Safety

The first people to see Abbas’ notice are on the Shapeways Trust and Safety (T&S) team.  T&S’s role in this process is defined by the notice and takedown process created by the Digital Millennium Copyright Act (DMCA).  The T&S team has essentially two roles in this process.  The first is to make sure that everyone who submits formal requests complies with the rules.  That means making sure that takedown requests are signed and that they include all of the information needed to identify the allegedly infringing model.  The second is to act as an intermediary, transmitting information between Abbas and Eulice.

It is important to understand what role T&S does not have.  T&S are not copyright judges.  As long as Abbas makes his request correctly – and remember, that includes his promise under penalty of perjury that he has a good faith belief that the person he is accusing of infringement is actually infringing on his rights – T&S does not look into the merits of the accusation. On balance that is a good thing.  Copyright law can be complicated, and it is probably bad policy to deputize every website on the internet as its own tiny copyright court.

Once T&S has confirmed that Abbas’ complaint includes all of the information that Shapeways requires, they take down Eulice’s model.  This is part of the reason that it is so important that Abbas be sure that his takedown request is aimed at the right model – it has swift, significant consequences.  As it takes down the model, T&S tells Eulice that her model was taken down because of a request from Abbas.

Eulice’s Turn

Once Eulice gets word that her model was taken down, she has some decisions to make.  If, upon further reflection, she decides that her model does infringe upon Abbas’ work, she can decide to do nothing.  Her infringing model will stay down unless she takes steps to put it back up.  Eulice not responding to the notice pretty much ends the process.

However, she might decide that Abbas was wrong to take down her model.  There could be a number of reasons for this.  Eulice may be making fair use of Abbas’ model.  Abbas may have misidentified Eulice’s model as infringing.  Eulice may have a license from Abbas.  As was the case for Abbas, it might make sense for Eulice to talk to a lawyer to help her fully understand the merits of Abbas’ claim.

Regardless of the specific reason, Eulice may decide to challenge Abbas’ takedown.  She goes back to the content policy to find out how.

Perhaps not surprisingly, the process is very similar to the one Abbas used to send his original notice.  Eulice needs to file a formal legal request to put her model back up.  It needs to identify what was taken down and swear, under penalty of perjury, that she has a good faith belief that Abbas’ takedown request was improper.  Once she is comfortable with her response (often called a ‘counter notice’), Eulice sends it back to Shapeways.

Back to T&S

T&S does not immediately return Eulice’s model to her shop.  In fact, T&S is required by law to wait for 10-14 days to put the model back up.  That’s because as soon as T&S has verified that Eulice’s response includes all of the required elements, they alert Abbas that Eulice is contesting the takedown request.  Remember, just as with Abbas’ original takedown request, T&S does not evaluate Eulice’s response on the merits of her arguments.  As long as it includes all of the required elements T&S will comply with it.  With that, it is time for Abbas to make some decisions.

Abbas’ Choice

When he investigates Eulice’s response, Abbas may decide that she is right and that his takedown request was improper.  At that point, Abbas can decide to do nothing.  If he does nothing then Eulice’s model goes back up and nothing else really happens.

However, Abbas may decide that his takedown notice was correct and that he really does believe that Eulice is infringing on his rights.  If so, the clock is ticking.  Eulice’s model will go back up on Shapeways in 10-14 days unless he decides to take steps to intervene.  If he wants to keep Eulice’s model off Shapeways, Abbas needs to bring a formal lawsuit against her in a court in the United States.  That lawsuit may include a request that a judge require Shapeways to keep the model down. If Abbas brings the suit and the judge grants his request, he can send the order to Shapeways.  Once received, T&S will keep the model down until the court order expires.  That could mean that Eulice won the suit and gets to keep her model up.  Or that Abbas won the suit and the court order is replaced by a permanent injunction.

The Bigger Picture

Shapeways IP disputes rarely evolve into full blown lawsuits.  As you can see, there are many places where people can decide to resolve their dispute informally or to decide to abandon the dispute entirely.  This is probably a healthy thing – the formal legal system is important, but it isn’t always the best place to resolve every dispute. That being said, it can be good to know that there are formal legal options available when you need them.

If you have made it this far into the post, there are two final things that are worth keeping in mind.  First, you might be wondering what would happen if someone decided to abuse this system and either chronically upload models that infringe on someone else’s IP or chronically submit takedown requests that did not have a firm basis in fact.

In the first case, we do have a repeat infringer policy.  If a user is subject to a significant number of takedown notices (that are not ultimately invalidated), we will kick them off Shapeways.

In the second case, the same law that creates this notice and takedown process also imposes penalties for abusing it (that’s why it is so important that someone sending a takedown notice swear under oath that the facts in the notice are true).    We have the ability to cooperate with anyone who thinks that takedown notices are being used improperly against them.

Second, it is worth remembering the role of Shapeways and the Shapeways T&S team in all of this. As you can see from this post, Shapeways is not in a position to resolve specific disputes about infringement or even to evaluate the claims of either side.  As long as both sides comply with the rules, our job is to assume everyone is telling the truth and comply with their request.  It is the role of courts, not private websites like Shapeways, to decide individual infringement disputes.  That doesn’t mean that we can’t be skeptical of claims being made to us. But if the person making those claims is willing to do so under oath, in most cases we will give them the benefit of the doubt.

Just in case you are curious, all of the images here come from the flickr feeds of the British Library and the Library of Congress.  Specifically, the British Library’s Highlights and Portraits albums and the Library of Congress’ News in the 1910s album.  These albums are created by scanning public domain works in the Libraries’ respective collections and are fantastic resources.  You should do yourself a favor and spend a little time with them.  I mean, look at these 100 year old color photos from the Russian Empire!  No larger political commentary is meant by their use – I have no idea who the subjects of any of them are.  If you do I’d love to know so please let me know in the comments.

This was originally posted on the Shapeways website as part of a series on legal concepts important for 3D designers and 3D printing.

This is the second in a series of posts about different types of rights that may be involved with models and files here at Shapeways.  Today we’re going to go a bit deeper into one aspect of one of those rights: fair use of copyright-protected work.

Before we begin, a quick note.  The posts in this series are written from a U.S. perspective.  Most of them are written in a way that the general concepts will apply in many (if not most) other countries.  That is probably the least true for an issue like fair use. While some other countries have similar concepts such as fair dealing, fair use tends to be a bit U.S. specific.  As is the case for all of the posts in this series, it is always a good idea to talk to a lawyer about your specific case.

Generally speaking, if you want to make a copy of all or part of a work that is protected by copyright you need to get permission from the person who owns that copyright (often referred to as the “rightsholder”).  But that is not always the case.  Sometimes you can make copies without permission because the copies you are making are protected by a concept in U.S. copyright law known as fair use.

Fair use is an important, although slightly complicated, aspect of copyright law.  Without fair use, a rightsholder could prevent a critic from quoting part of a work in a critical review, stop a news report from showing a clip of a controversial video, or interfere with fans reimagining characters from a favorite work of fiction.  Fundamentally, fair use is designed to make sure that copyright does not get in the way of free speech.

Applying that fundamental principle to any specific situation can be a bit complicated.  Fortunately, there are a number of great guides out there to try and help, from the Fair Use App from New Media Rights, to a massive collection of best practice guides from the Center for Media & Social Impact at American University, and Stanford University’s Copyright and Fair Use Center (just to name a few).  All of these resources build on the four elements that courts are supposed to consider in determining if a use is a fair use. These are written into U.S. copyright law.  Remember that these factors are weighed against each other, and that no single factor can determine if fair use applies.

1. The purpose and character of the use, including whether the use in question is commercial in nature or nonprofit and educational;

This element looks at how a work protected by copyright is going to be used by someone else.  Generally speaking, uses that are noncommercial, critical, and/or educational will fare well in this element.  However, there are still plenty of commercial uses of copyright-protected works that can be protected by fair use (watch pretty much any segment on the Daily Show for an example).

2. The nature of the work being copied;

If the first element looks at the copy, this element looks at the work being copied and recognizes that some types of works are more likely to trigger fair use protection.  For example, a speech given by a political candidate is generally riper to be reproduced under the protection of fair use than a commercial television show.  Again, however, that general rule does not mean that commercial television shows are exempt from being remixed under fair use.

3. The amount and substantiality of the portion of the copied work that is used; and

Contrary to what you may have read elsewhere, there is no “rule of thumb” for fair use, where as long as you use below X percent of a work of less than Y seconds of a clip you are protected.  This element looks at the amount of the source work that is used in the context of the new use in question.  It can be thought of as a rule of “take only what you need.”  Sometimes that is only a few words.  Other times it can be that the entire source work is neededto achieve the new use.

4. The impact that the copy has on the potential market value of the copied work.

This final element looks at how the new use impacts the source work economically.  If the new use directly competes with the original work in the marketplace, it may undermine its case for fair use.

When judges are trying to decide if a use is a fair use, they weigh the facts against all of these elements.  Importantly, these principles aren’t a straightforward checklist – sometimes fair use can be found when three of the principles cut against a finding of fair use but the fourth is particularly persuasive, and sometimes one or two of the principles do not even apply to the specific situation.

Where does this leave you?  First and foremost, fair use is real.  Not every use of a work protected by copyright requires permission, and fair use is like a muscle – the more it is used the stronger it gets.  Second, rightsholders – even ones acting in good faith – don’t always consider fair use as thoroughly as they should (or at all).  Don’t assume that just because you receive a copyright takedown notice that the rightsholder who sent that notice considered the fair use aspects of what you are doing.

That being said, fair use can be complicated.  Simply saying that “no infringement is intended” or not being able to get a license from a rightsholder does not give you fair use protection. Neither does simply wanting to use a work.  If you are going to claim fair use, make sure you understand the basics of how it works.  Take a look at some of the guides mentioned above to get a better sense of how the rules apply to situations similar to yours.  The exercise of coming up with answers for each of the four fair use elements can be incredibly helpful in understanding how fair use applies to a given situation.  Consider discussing your specific case with an attorney who can focus on and identify any important details.  This is doubly true if you are planning on asserting fair use in a formal legal context, such as a counternotice to a copyright takedown here at Shapeways.