One of the issues that continues to vex the open source
hardware community is licensing. The
reason for this is simple: licensing in open source hardware is hard. From an IP standpoint, open source software is
basically a single blob of stuff comprehensively covered by a single copyright. That means you can pick a single copyright
license and be done.
Open source hardware isn’t that easy. It is actually a mix
of a bunch of different elements covered by a bunch of different types of
IP. That means that you are probably
going to need to pick a few types of licenses for a few different parts of your
hardware. OSHWA is working on building a
tool to make this easier to figure out, but in the meantime I wanted to throw
up a quick post setting up a bit of a framework. This framework is largely based on the work
that Ryan Lawson and Adam Alperowicz did as students at the NYU Technology Law
and Policy Clinic, although all errors are entirely mine.
When you are thinking about licensing your hardware, there
are at least four parts that might be involved.
That doesn’t mean that every piece of hardware has all four, but at a
minimum you should take the time to cross it off the list if it is appropriate.
Hardware. These are the
physical elements of your hardware. This
might be protected by a combination of nothing, copyright, and patent. If it is nothing, you don’t need to worry
about a license. If it is copyright, you should be looking at Creative Commons
licenses (note that licenses with Non-Commercial restrictions are not
compatible with the open source hardware definition). If it is patent, things get a bit more
complicated. The good news is that you
don’t just back into a patent. If you hardware is protected by a patent it is
because you paid a lot of money to acquire that patent. Talk to the lawyer who got you your patent
about licensing options. Not sure what
to do? If the CC disclaim and request
option existed that would be best. Until
then, unless your hardware includes a lot of artistic or decorative elements
you can probably skip this.
Documentation. This is
covered by copyright. It is a required
part of the open source hardware definition.
Pick a Creative Commons license and apply it to the documentation. That will let other people make copies of
your documentation.
Software. This is
also covered by copyright. There are
many copyright licenses written precisely for software. Pick an OSI-compliant license and apply it to
your software.
Branding. The name of
your hardware can be protected by trademark.
If you have a trademark you probably do not want to causally license it,
because your trademark tells people “this version of X comes from me.” Fortunately not licensing your trademark is
totally allowed under the open source hardware definition. In fact, not
offering blanket licenses on your trademark is part of what makes open source
hardware work because it allows other people to build on your hardware without suggesting that you are responsible for whatever they put out in the world.
And that’s it. Quick
and dirty. Wherever you are posting your
licensing and documentation, it might make sense to break out the various
licenses. You know, something like this:
(note the absence of a hardware license because this
imaginary piece of hardware does not have any protectable elements in the physical hardware. I also didn’t license the imaginary trademark that is connected to the imaginary hardware.)
Thoughts, questions, or corrections? Hit me up.
Want more? Keep an eye on OSHWA,
where we are working to build out a much less dirty (but if appropriate to the
use just as quick) version in the coming months.
*This title is not a lie.
This guide is quick and it is dirty. That means that it doesn’t contemplate
every possible situation, so there are plenty of right ways to do open source
hardware licensing that are not listed. That also means that it is full of gross generalizations that may not apply to you. That also also means that it is not intended to substitute for legal
advice. If you are thinking seriously
about this issue for your own hardware, it may be worth talking to a lawyer who
is your lawyer about how licensing impacts your hardware.
Four and a half years ago, in the wake of HBO’s decision to
send a DMCA notice removing a 3D printed Game of Thrones iPhone dock from the internet,
I wrote a short blog post titled
HBO, Give People a Way to Buy Your 3D Printed Stuff for the Public
Knowledge blog. Today I get to write a
post celebrating the fact that Valve has decided to do
just that.
The first post raised a point that was not novel at the
time, and has not grown any more novel since: instead of taking down fan art, rightsholders
may be better served by allowing fans to spread their enthusiasm by selling
their work. Furthermore, to the extent
that fan art requires a license to produce, rightsholders could be well served
by granting that license in exchange for part of the proceeds from that sale
and information about what types of things are popular in the community.
While the larger point was not novel, 3D printing did bring a
slightly different context to its discussion.
Unlike other types of digital-only fan art that can be reproduced for
free, 3D printing involves a physical thing that costs money to produce. That means that 3D printed fan art will
involve payment much more often than other types of online fan art. As a result, rightsholders do not have to
introduce monetization into an ecosystem – it is there from the beginning. That, in turn, makes it much less disruptive
to introduce the concept of royalty payments to the community. (For what it’s worth, a similar “I expect to
pay for physical goods” mindset helps guide the development of the open source
hardware community and its divergence from traditional open source hardware.)
In my Shapeways
welcome post, I mentioned that one of the reasons I was excited to join was
Shapeways’ unique position to bring together fans, rightsholders, and 3D
printing. One of the first things I did
when I started was to reach out to Heidi
Tandy (who is many things, but in this context was part of the team
supporting the Organization for Transformative
Works). I asked her for thoughts on
creating a program that allowed fans to create new works without exposure to
threats of copyright infringement while at the same time avoiding forcing
licenses on new works that did not require licenses in the first place. As would come as no surprise to anyone who
has met her, Heidi was incredibly willing to take the time to walk me through
my ideas and anxieties, as well as share her insights.
I hope that the structure of the Valve deal helps facilitate
licensing between fans and rightsholders when that licensing is necessary,
without also creating new norms requiring licenses when none are
necessary. The former is advanced by a
prominent notice that the license is available with (what I hope are)
human-readable terms. The latter is advanced by making it clear that creators
have the right to opt out of the license, and making it easy to do so.
Valve deserves a great deal of credit for their willingness
to support both of these goals, and for their willingness to explore this more generally. It would have been easy for Valve to refuse
to explore this opportunity at all, to make the license terms complicated or
secret, or to insist that it be hard or impossible to opt out of the license. They
did none of these things, for which they should be commended.
This program is a big step towards finding out what it
really means to allow fans to create original physical items under a formal
license, instead of shutting it down or benignly neglecting it under opaque
conditions. I’m hoping that there are
many more.
In August I filed a petition with the US Copyright Office asking to renew the current rule that allows owners of 3D printers to use whatever filament or material they want in their printers. This petition, which is part of the Copyright Office’s triennial 1201 rulemaking process, was aimed at renewing the exemption granted three years ago. Today I filed a new petition asking the Copyright Office to go further and expand its existing petition so it makes sense.
The renewal petition was important because it is probably better to have the exemption than to not have it. However, as I wrote at the time, the current exemption is a total mess. Specifically, while it grants printer users the right to use their own material in their printers, it limits that right in cases where the printer in question “produces
goods or materials for use in commerce the physical production of
which is subject to legal or regulatory oversight or a related
certification process, or where the circumvention is otherwise
unlawful.”
Briefly, this is nonsensical because 1) many printers produce goods for personal use and for “use in commerce” (however we’re going to define that) so making a legal distinction between the two can be extremely challenging, and 2) every item used in commerce is subject to legal or regulatory oversight, so what does that additional qualifier even mean? For the record, while we disagreed about the wisdom of granting the exemption at all, Stratasys and I agreed that adding this type of qualifier was a bad idea because it made no sense.
That’s where today’s petition comes in. It asks the Copyright Office to grant a new exemption that is identical to the current one except without the nonsensical limitation. Why ask for a renewal for the current exemption and then ask for a new exemption that is just an expansion of the current petition? Because that’s how the Copyright Office told people to do it. And it does make sense on some level. If they reject this request to expand the exemption, at least we all have the renewal to fall back on.
What happens now? Today (and by “today” I mean that it could be filed today and published in the reasonably near future) we get to find out if anyone is opposing the vanilla renewal petition. If no one opposes it, it should be reasonably easy to have it renewed. (Update 9/29/17: It appears that no one opposed the original petition. In theory that means it will be automatically renewed. We’ll see how this plays out once the Copyright Office releases information about next steps.)
Regardless, at some point the Copyright Office will bundle all of the requests together and ask to public to comment on them. The Notice asking for petitions didn’t include a timeline for that, so we’ll just have to wait and see. When you start seeing stories about efforts to ask you to weigh in on using videos in classrooms and jailbreaking phones, you might pause for a moment to consider the fate of 3D printers as well.
Today I, along with the Owners’ Rights Initiative, filed a petition with the US Copyright Office asking them to renew the exemption that allows people to unlock their 3D printers and use whatever material in the printers they wish. This is a request to renew the exemption that the Copyright Office originally granted back in 2015. You can read about that exemption here.
The original petition was motivated by the fact that some 3D printer manufacturers were locking 3D printers to material that came from the 3D printer manufacturer. Owners and users of 3D printers that wanted to use third party material needed to circumvent the checks that the manufacturers put in place to lock the printers to the materials.
There was some ambiguity around the question of if circumventing these checks violated the same part of copyright law that makes it illegal to crack the DRM on DVDs. That same law - often referred to as “Section 1201″ - also allows the Copyright Office to grant three year exceptions to the rule if it seems appropriate to do so. The original petition asked the Copyright Office to declare that, to the extent that unlocking a 3D printer might incidentally violate Section 1201, it did not do so in a way that created the harm that Section 1201 was designed to prevent.
The Copyright Office granted the original exemption in 2015, although it managed to limit it in a number of nonsensical ways. Today’s filing deadline kicks of the next round of the three year process. It was the day that you had to petition to renew an exemption already in place.
So that’s what I did. In September you can petition for new exemptions or to expand current exemptions. I plan on doing that too. In 2015 the Copyright Office limited its exemption because it had concerns about things like airline and medical safety. These are legitimate things for one to worry about. But they are not things that the Copyright Office knows anything about and they have nothing to do with copyright. In September I plan to point this out to the Copyright Office and ask it to limit its consideration to the copyright impacts of the exemption. To the extent that the exemption creates problems with airline safety, medical safety, or anything else, there are plenty of agencies of the U.S. Government with the expertise to step in.
So keep your eyes here in September and throughout the process. I’ll try and keep this updated as it unfolds.
Update 8/20/17: 3DR Holdings won their case against Just 3D Print. The decision has what I would consider to be the only actual written consideration of this matter by a court (thus far…). That court found that there was no defamation because 1) 3DR’s post was not defamatory, and 2) even if they were defamatory, Just 3D Print failed to prove that 3DR’s actions were in any way related to any harm experienced by Just 3D Print. The court did not need to determine if any copyright infringement actually occurred in the underlying dispute in order to reach this conclusion.
Surprisingly enough,
this is the third post in what I suppose now qualifies as the saga of
Just 3D Print downloading hundreds of model files from Thingiverse and selling the prints on eBay (previous posts here and here).
This post is occasioned by a recent defamation case brought by Just 3D Print
against Stratasys in relation to Stratasys’ reporting on the saga.
The purpose of this post is to explain what happened in that and
related cases, as well as to review the new tweaks in the underlying copyright claims. All of the
disclaimers and facts from the earlier posts apply, especially that
this is not legal advice of any kind and that I am not an expert in
Pennsylvania civil procedure or defamation law. This is just my take on a situation that I believe has an impact on how we
think about the combination of 3D printing, copyright, and Creative
Commons licensing.
A Short Bit of Background
The original post lays out the history so far, but let me give a quick summary of how we got here.
As you may recall, this incident began when Thingiverse user loubie raised concerns about the behavior of a company called Just 3D Print. Loubie accused Just 3D Print of pulling around 2,000 models and associated images from Thingiverse to sell in an eBay store. Just 3D Print was allegedly doing this without permission of the designers and, in at least some cases, in violation of the terms of various CC licenses on the models. Just 3D Print responded with a litany of excuses and justifications (listed and discussed here) essentially claiming that its behavior did not violate US copyright law. Various designers contacted eBay to accuse Just 3D Print of infringement and the shop was eventually removed.
That would have been the end of it, except Just 3D Print then sued three publications that covered the drama for defamation.
Just 3D Print lost one case, one case is
pending (edit 8/20/17: see update above), and won one case against Stratasys. Stratasys is a 3D printer company not a publication, but the suit was related to articles published on the Stratasys blog.
After the Stratasys
win, Just 3D Print reached out to a number of outlets that had
covered the original incident (“outlets” being broadly defined as
it includes this blog) asking for a disclaimer on the original
articles noting that the court had found that Just 3D Print had not
infringed any copyrights.
This struck me as
strange because, assuming the public facts available were generally
correct, it appeared that Just 3D Print probably did infringe on
copyrights. It also seemed strange that the parties involved would
have litigated an entire copyright infringement lawsuit.
Intrigued, I
decided to investigate further. At the end of
my investigations I have come to two conclusions. First, that Just
3D Print’s view of how copyright applies to 3D printing files and
objects (and just operates generally) continues to be incorrect.
Second, that it is unreasonable to claim that the court in the
Stratasys case came to any conclusions regarding copyright
infringement or, for that matter, defamation.
The Defamation
Suits
Before we get to the
suits, the Digital Media Law Project has a nice background on
defamation law and on Pennsylvania defamation law specifically (the
cases were brought in Pennsylvania courts). When thinking about
defamation cases, it is important to look at the actual words used by
the speaker and to remember that, generally speaking, the substantial
truth of those statements is a defense
against those claims. It is also worth remembering that stating opinions (as opposed to facts) is generally protected by the First Amendment, making it much less
likely that they will be considered defamatory (more here).
In its complaints (against Techcrunch, Stratasys, and 3DR),
Just 3D Print claimed that the articles resulted in a torrent of hate
mail, wasted hours responding to press, and a harm to Just 3D
Print’s reputation (note that if these were the result of
legitimate, fact-based criticism, it is highly unlikely that these
harms could form the basis for a defamation claim. In other words, it is only a problem if those harms flow from defamatory conduct).
Perhaps most
impressively, Just 3D Print claimed that the defamatory articles by
TechCrunch and Stratasys caused it to shut down a product line
projected to generate $2,000,000 a month in gross profits within one
or two years. In its claim against 3DR Holdings (publisher of the
trade publications 3Dprint.com and 3Dprintingindustry.com), this
claim is restated as projected revenue of $100,000,000.00.
The claim against
3DR has not been resolved yet (edit 87/20/17: it was resolved in 3DR’s favor - see update above), so I’m going to put that aside. If
you are curious, I’ve posted some relevant documents here.
Techcrunch defeated
the claim Just 3D Print brought against it. The decision gives
two reasons. First, that the statements made by Techcrunch were
opinions that did not qualify as defamation. Second, that there was
a statute of limitations issue.
The Techcrunch
result is what I would have expected. The media outlets
were reporting on a public controversy involving Just 3D Print. In
most contexts, that kind of reporting would not qualify as defamation.
The courts did not have to spend anytime on the facts of the
underlying copyright infringement claims to reach their conclusion.
The nature of the reporting itself meant that the inquiry could stop
there.
The Stratasys
Case
All of which made
the Stratasys case so confusing. Stratasys lost the case, but the
final disposition does not include any sort of explanation of
why the court found against Stratasys. It just found for Just 3D
Print.
Intriguingly, the
time stamp at the top of the document suggests that the hearing
started at 10:55 am and ended at 11:14 am. Presumably a conclusion
that Stratasys defamed Just 3D Print would require the court to
examine the underlying copyright infringement claims and the intent
of Stratasys in publishing the piece. After all, Just 3D Print was representing this decision
as a vindication against accusations of copyright infringement. How
could a court get through all of that in 19 minutes? I’m two and a
half blog posts in and I haven’t managed to get everything
straight.
Fortunately,
transcripts of the oral augments are available from the
court.* As is so often the case, the transcripts answer some questions and raise others.
The argument was
short, so I encourage you to take a moment to read them yourself (I mean, you’ve already at least skimmed this much of an article about all of this stuff). I think it is fair to say that they are not a model of
judicial clarity or efficiency.
The entire
discussion appears to focus on two questions. First, the
relationship between the person who wrote the article posted on the
Stratasys website and Stratasys itself. Second, the
necessity of Stratasys, as opposed to simply a lawyer representing
Stratasys, to be present in the courtroom.
Good eye if you noticed that neither of these
questions directly relate to the underlying allegation of copyright
infringement or the defamatory nature of the articles about those
allegations.
Unfortunately, the court does not really even address either of these preliminary questions. Instead, apparently frustrated by the
discussion of those questions up to that point, 19 minutes in the
court summarily cuts off the proceedings and enters a judgment for
Just 3D Print. No real consideration of who published the article. No real consideration of who needs to be in the courtroom. Absolutely no consideration of infringement or defamation.
The attorney for
Stratasys responds to all of this by saying “This is unbelievable”
and I’m inclined to agree. The most charitable reading may
be that the court found for Just 3D Print on the procedural grounds
that Stratasys failed to appear. It does not seem reasonable to
represent that the court came to a reasoned conclusion on either the
defamation claims or the underlying infringement claims.
I’ve asked
Stratasys if they plan to appeal this decision and will update this
post if I get any additional information.
Was There Even
Infringement?
As I mentioned
earlier, this post exists because Just 3D Print reached out to
claim that the court had found that Stratasys had defamed them and that the court had found them innocent of copyright infringement. For the reasons I just explained, this strikes me as at
least an over reading of the decision, if not an outright
mischaracterization.
More concerning to
me was that, when asked for clarification, Just 3D Print continued to
argue that no infringement could have occurred. Many of the reasons
they put forward were identical to the ones that surfaced during the
original conflict. I’m not in a position to know if this continued
reliance on incorrect readings of copyright law is intentional or
merely indicative of a lack of understanding. In the interest of
brevity (ha!), I’ll just refer to the earlier post on this issue
that explains why I believe these claims are incorrect,
specifically claim #3 that uploading a model to Thingiverse under a
Creative Commons license somehow abandons the creator’s copyright,
and claim #8 that copyright registration is required for copyright
protection to exist and that infringement cannot happen absent that
registration.
Just to clarify,
uploading a model to Thingiverse under a Creative Commons license
does not abandon your copyright interest in that model. And you do
not need to register your copyright in order to get copyright
protection. In fact, your unregistered copyright can be infringed
upon.
Was There
Ever an Accusation of Infringement?
There is one final
argument that Just 3D Print made in the course of our discussion:
that Just 3D Print had never been accused of copyright infringement,
and that no copyright infringement has ever been proven.
Furthermore, the
exhibits provided to me by Just 3D Print contain over 300 allegations
of infringement that were filed against the Just 3D Print eBay shop.
eBay’s ”VERO” process is DMCA complaint which means that, in accordance with US copyright
law, it requires allegations of infringement to be backed up by a
statement under penalty of perjury that the claims are accurate. The
claims sworn to include “I have a good faith belief that the use of
the material in the manner complained of above is not authorized by
the Intellectual Property Owner, its agent, or the law.” In other
words, there are over 300 instances of Just 3D Print being accused of
infringement. These accusations complied with US copyright law and
required the accusers to stand by their accusations under penalty of
perjury.
eBay’s VERO/DMCA
process allows an eBay shop owner who is accused of infringement to
submit a counternotice and have the targeted listing reinstated.
However, Just 3D Print did not contest a single accusation of
infringement and instead allowed the listings to be removed. It is
important to point out that the failure to respond to a DMCA takedown
notice does not meant that the original accusation was correct.
There are many structural reasons that make it hard or intimidating
to respond to a DMCA notice even if it is incorrect.
When pressed on this
failure to respond – a failure that ultimately resulted in the
shutting of the eBay shop and apparently contributed to the loss of
millions of dollars of revenue – Just 3D Print replied that the
eBay “contact us” phone number simply connected them with a “random
person that says they will pass on the info.” Regardless, the eBay
VERO/DMCA page provides explicit instructions on how to challenge an
accusation of infringement with a link to the form (no phone call required):
With tens of
millions of dollars allegedly on the line, it is unclear why Just 3D
Print failed to challenge a single accusation of infringement via the
form provided by eBay. This is all the more confusing because Just
3D Print does not appear to have a general aversion to engaging with legal processes.
Just 3D Print’s
second response to the accusations is that it does not consider any
of the accusations to be valid because there is no evidence that the
individuals reporting infringement had registered their copyright
prior to making the accusation. As noted above, this is not a
requirement for copyright infringement. Furthermore, if this was
Just 3D Print’s position, it could have been communicated to eBay
and its accusers via the eBay process.
None of this
constitutes a judicially arrived-at decision that Just 3D Print
infringed on any copyrights. But, at a minimum, it certainly
constitutes allegations of infringement in my book.
I hope so. As I’ve
noted in the earlier posts regarding the dispute, we are still in a
formative time in the context of 3D printing, copyright, and Creative
Commons licensing. While there is some ambiguity, there isn’t
total ambiguity. Throwing settled areas of copyright law into
question does not help work towards a solution for the complicated
stuff. When there are legitimate disagreements about the
intersection of 3D printing, copyright, and Creative Commons
licenses, they are important to explore. But if someone is bringing
dubious claims into a discussion it is important to identify them as
such as quickly as possible.
As always, I’ll update these and other posts as more
information becomes available.
*Bonus: How do
you get all of the legal documents?
It’s both harder than it should be and in fact not so hard. The important thing to remember when looking up legal
documents (and this is true at all levels) is that court document
systems are not sophisticated. Generally speaking, for every court
it seems there was a moment in the late 1990s or early 2000s where
someone decided that things should be available online. At that
point some contractor spun up an online portal, and that portal has
never been updated since. So when you are searching courts for
information just pretend it is 2002 and proceed accordingly.
For the court in
this case, that means going to the public portal and logging in as a public user. You then need something pretty
specific (a case number, a party name) to find documents. For the Stratasys case that number is SC-17-02-24-6077. If you can
get a thread, you’ll end up at a docket page. Even small cases
will have a number of documents, because this page captures
everything that happens procedurally in the case. Fortunately the
names are at least semi-descriptive, so you can be reasonably sure
something called “Judgment” will be a judgment.
There is one thing
that is obviously missing from the docket page, and that is the
transcript. For that I just called up the court clerk to ask for
instructions. Courts know that their websites aren’t amazing and
court clerks are generally pretty friendly. In this case they
happily told me how much the transcript would cost, where to send the
check, and what else to include in the envelope. A few weeks later I
had the transcript in my inbox.
