Reihan Salam’s piece on hospitals over in Slate last week felt strangely familiar.  The piece, titled “Hospitals Are Robbing Us Blind” was ostensibly about how hospitals are gouging everyone on medical services.  He described a market with limited competition made up of politically powerful incumbents.  Competition has been reduced by a slew of regional mergers, further consolidating the players.  Although Salam details a number of hospital-specific problems, he concludes that there are essentially two solutions to this problem: recognize that hospitals often have near monopolies and regulate them as such, or use antitrust law in the short term and reduced barriers to entry in the long term to increase competition.

Abstracted out a half level, those are essentially the solutions that were being debated around net neutrality for the past year (there was also the third “let ISPs do whatever they want” option pushed by ISPs, but let’s ignore that).  Problem: a combination of market forces and regulatory acquiescence has allowed large concentrations of power in a critical industry.  Solution 1: regulate those concentrations of power like the concentrations of power that they are.  Solution 2: break up those concentrations through both regulatory and  market mechanisms.

There are criticisms to both of these approaches.  Critics of solution 1 will raise concerns that concentrations of economic power are often also politically powerful. Therefore strong regulatory oversight will not work because the regulated entities will simply use their political power to undermine the oversight.  Critics of solution 2 will point to the relative weakness of antitrust law at this point in our history, worrying that “break them up” in practice is a lot harder than the theory would suggest.

But set those criticisms aside for the moment.  The more interesting question may be: is this a trend?  The antitrust laws that came out of the trust-busting era have gotten us a long way and continue to do good work.  However, we are now seeing an increasing concentration of power in a number of areas of our economy and society even with those laws in place.  These concentrations have real negative effects on everyday people.  The solutions to these concentrations can work (regulate them like a monopoly, break them up), but are imperfect and probably not ideal at scale: regulating an industry like a monopoly should be something of a last resort, and if current antitrust law made it easy to break these concentrations up we probably wouldn’t have these problems.  (As an aside, this article by Tim Wu describes some of the challenges that antitrust law is currently facing in the context of innovating sectors of the economy).

Salam ends his piece with the observation that “curbing the power of big hospitals isn’t a left-wing or a right-wing issue. Getting this right will make solving all of our health care woes much easier, regardless of where you fall on the wisdom of Obamacare. Let’s get to it.”  The same could be (and has been) said for net neutrality.  

How many more of these issues are there?  And will their existence force us to develop a bipartisan framework for addressing them?  I suspect there are more, and I hope that it does.  For now the best thing may be to just keep our eyes open for them.

Today is my last day at Public Knowledge.  I started at PK as an intern over seven years ago and, though a series of lucky breaks, have pretty much worked there ever since.  I am, and will continue to be, profoundly grateful for every opportunity that PK has ever afforded me. 

PK is made up of people, and those people have consistently given me the guidance and freedom to try new things. Often this level of freedom was a mistake, which makes me all the more grateful.  Gigi, Harold, and Sherwin trusted me when I told them that I wanted to use some of my time for half-baked (at best) ideas.  Some of those ideas worked out, and others didn’t, but they never let the failures mean that I couldn’t make a case to try the next thing.  Alex taught me how to think about advocacy beyond traditional tools like legal filings and Hill meetings.  Alex was also the person who first suggested that we look into some of the IP issues around 3D printing – it is only because of a well timed stint at jury duty that I ended up with the time to dig into it first.  Mehan and Katy forced me – in the best possible way – to think about now non-lawyers want to engage with our issues.  Whitney and Tim made PK a place I wanted to come to work, and John and Jodie showed me what work from real lawyers looks like. And Brooke was my partner in crime in more ways than I can count.

I don’t want to turn this into a list of PK employees, both because that would be tedious and I don’t want to leave anyone out.  PK has always been a place that combines an opportunity to work on the most important tech policy issues of the day with an opportunity to help identify and shape the most important tech policy issues of the future.  I am proud of the credibility that we bring to discussions, and of the fact that even our opponents feel compelled to take our position seriously.  I am equally proud of the fact that PK works with such a diverse collection of allies on such a broad spectrum of issues.

Finally, I look forward to PK’s future.  PK is evolving under Gene, as are PK’s issues.  This is a good thing, and a sign of institutional strength.  Although I won’t be working at PK anymore, I look forward to working with PK on all sorts of issues.

Yesterday, Autodesk announced that it was open sourcing one of the resins for its spark 3D printer. Autodesk says that they are releasing the recipe under a Creative Commons attribution-share alike license, and invited the community to remix, improve, and build upon it as they saw fit. This decision is commendable on the part of Autodesk, but what does it actually mean to open source 3D printing resin?

Open source can mean a lot of things to a lot of people, but generally speaking it usually involves (at least) two elements. The first is releasing documentation for the thing being open sourced in a way that allows people to understand how it works and really begin to access it. The second is licensing any intellectual property rights connected to the thing being open sourced in a way that allows sharing, remixing, and building upon.

Autodesk’s announcement appears to fulfill that first requirement quite well: they released the ingredient list of the resin. This should allow people outside of Autodesk to accurately reproduce the resin, which is the first step to building up on it.

The second requirement is a bit more complicated. The language in the announcement blog post makes it clear that Autodesk’s intention is to invite people to use and improve the resin as they see fit. And the use of the Creative Commons license is a signal about how Autodesk would like people to use the resin.

But is that license really necessary? Licenses are important in the context of open source software because software is automatically protected by copyright.  Software’s default state is protected, and the creator of software needs to take affirmative steps in order to allow other people to remix and build upon their work.

Resin is different. Resin, and a formula for resin, is not protected by copyright.  Unless Autodesk decided to patent its resin, that resin is “open” by default.  No one needs permission from Autodesk to copy or improve upon their resin, or to reproduce its core formula. In that sense, Autodesk’s Creative Commons license on the formula is legally meaningless.

Autodesk is a big company with a lot of lawyers, and those lawyers undoubtedly understand that the licenses here are largely symbolic. That can be ok, because even when licenses aren’t legally binding, they can serve as important signaling devices to users (when getting close to a big company with lots of lawyers, wanting a belt and suspenders rights clearance guarantee isn’t crazy).

But as the world of open source expands beyond software, it is important to take time to remember that translating the open source spirit to non-copyrightable things isn’t as simple as transferring existing licenses. Among many other things, that means remembering that the absence of a license doesn’t mean something is closed, and that the presence of a license doesn’t necessarily give you any permissions that you didn’t have already.

None of this takes anything away from Autodesk today. If this is what it means for them to “think differently about 3D printing” it should be welcomed and cheered. But that doesn’t make it any less important to pay close attention to what, exactly, they are doing.

Image credit: Autodesk

This is the third 3D printing whitepaper. It was also the last big thing I wrote for PK.  The paper focuses on what parts of 3D printable objects (and files) might be protectable by IP and what happens if those parts are protected. The title is kind of a lie.  It spends much more time talking about what you might be able to license than how to license those parts after you have identified them.

The original announcement post is below. You can download the paper here

The expiration of patents, as
well as a worldwide effort to engineer open, low-cost desktop 3D printers, has begun
to fundamentally alter an industry that had been flying under the radar for decades. However, as 3D printers become more accessible to more people, questions of ownership and control of 3D printed objects begin to arise more often.

It should come as no surprise that many people turn to copyright law to answer these ownership and control questions. Indeed, one of the unexpected side effects of the past generation’s growth of software and the internet has been a collective, informal public education in copyright and copyright licensing. In light of this history, it is only natural that 3D creators’ instincts lead them to the General Public License (GPL), Creative Commons (CC) licenses, and other similar licenses to determine how others can—and cannot—use their creations.

Unfortunately, this instinct is not always the right one. From an intellectual property law standpoint, physical objects are quite different from code or words or photographs. Code (and words and photographs) is categorically eligible for copyright protection, and that protection attaches automatically. The GPL, CC licenses, and other licenses geared towards code all function under the assumption that the underlying work exists well within the scope of copyright protection and is therefore protected by copyright.

This assumption is not as easily applied to the world of physical objects. Some physical objects are protected by copyright, but many others are not. Additionally, the copyright in the digital files that represent those physical objects can require an entirely different copyright analysis than the one for the objects themselves.

In light of that, this paper is not actually about choosing the right license for your 3D printable stuff (sorry about that). Instead, this paper aims to flesh out a copyright analysis for both physical objects and for the digital files that represent them, allowing you to really understand what parts of your 3D object you are—and are not—licensing. Understanding what you are licensing is key to choosing the right license. Simply put, this is because
you cannot license what you do not legally control in the first place. There is no point in considering licenses that ultimately do not have the power to address whatever behavior you’re aiming to control. However, once you understand what it is you want to license, choosing the license itself is fairly straightforward.

Finally, in discussing licenses, this paper mostly focuses on open licenses, such as the GPL or Creative Commons licenses. This is in part because many 3D object creators gravitate towards these types of licenses. It is also because supporting open culture is important to both Public Knowledge and me. However, the fundamental analysis of what is and is not protectable by copyright applies to any license regime and can be used in support of any type of copyright license.

Download it here.

Today is a great day for the Open Internet. The FCC voted to create strong net neutrality rules grounded in robust legal authority. That vote, and those rules, are the culmination of over a decade of hard work and an especially vigorous year by a large and diverse coalition demanding robust Open Internet protections. We’re still waiting for the details, but as of now there is every reason to view this vote as a watershed moment in the history of net neutrality. At a time like this, it is important to take a moment and appreciate the magnitude of this accomplishment.

That being said, we have already started to get questions about what happens next. The rules voted on today will define the debate around an Open Internet for the foreseeable future and establish a strong precedent in favor of robust net neutrality protections going forward. However, for better or worse, they do not bring that debate to an end. While it is unclear exactly what the next step will be, this post is an attempt to briefly outline the possibilities.

But first, a quick reminder: Public Knowledge and many of our net neutrality allies will be hosting a Reddit AMA tomorrow at 2:30. Join us if you have questions.

The Courts

One set of possible next steps take place in the courts. At least one ISP has already outlined its case against the rules, and it may not be alone in planning to challenge the rules in court. That challenge can take at least two forms.

Immediate Challenge

The first is called a facial challenge, and could occur immediately after the rules are formally in place (we won’t know exactly when this is until the order is released). This is the type of challenge that Verizon successfully brought against the 2010 Open Internet rules. It is a challenge to the rules as they are written – how they appear on their face. The challenge would likely focus on the nature and scope of the rules, as well as the process the FCC used to write the rules. It could be brought by one or more ISPs.

This type of challenge would begin with one or more ISP(s) petitioning the FCC to stay (or temporarily suspend) the new net neutrality rules pending a review (formed as a Petition for Reconsideration). Assuming the FCC did not immediately act on that petition, the ISP(s) would then move onto the DC Circuit, most likely combining a request for a stay with their challenge to the rules. The DC Circuit would likely decide whether or not to grant the stay fairly quickly, but the larger fight about the rules themselves would take months. Importantly, the decision about the stay is unlikely to provide very much insight into how the court will decide the challenge to the rules themselves. However, granting a stay will mean that the rules do not go into effect until the DC Circuit has resolved the larger challenge.

Future Challenge

The second type of challenge is an as-applied challenge. Instead of immediately challenging the rules as they are written, an as-applied challenge challenges the rules as they are applied in a specific circumstance. As such, no ISP will be able to bring an as-applied challenge immediately. Instead, we will have to wait until the FCC actually punishes someone for violating the Open Internet rules. At that point, the punished ISP could challenge the rules as they were applied in that circumstance. Notably, even if the FCC wins a facial challenge to the Open Internet rules, ISPs will still be able to bring as-applied challenges in the future.

Congress

The other possible next steps take place in Congress. Next steps in the courts and in Congress are not mutually exclusive, and we will fight back against them in different ways. Similarly, each of these possible actions in Congress is potentially independent from the other.

Congressional Review Act

The first possible action is that Congress moves to overturn the FCC’s rules through a procedure outlined in the Congressional Review Act (CRA). Once the FCC’s rules are formally published, Congress has 60 days to pass a “Resolution of Disapproval” and either have President Obama sign the resolution or collect enough votes in support to override a veto. If it passed, the resolution would overturn the Open Internet rules. Further, it would prevent the FCC from any further Open Internet rulemaking until Congress itself acted. In other words, a successful CRA process would both overturn the existing rules and prevent the FCC from creating new ones. Congress attempted this after the 2010 rules but public outcry prevented them from succeeding.

Specific Legislation

The second possible action is a continuation of the process initiated by Senator Thune to pass net neutrality-specific legislation. While Public Knowledge has raised concerns about Sen. Thune’s initial draft, we welcome his commitment to work with all stakeholders to consider revisions to the legislation in the future. There is room for Congress to act in this area, and we look forward to helping craft strong legislation that really protects the Open Internet.

Appropriations Riders

The third possible action is that Congress attempts to limit the FCC’s ability to enforce the rules through appropriations riders. As part of appropriating the FCC’s budget, these riders would prohibit the FCC from spending any money to enforce the Open Internet rules. Needless to say, such a limitation would significantly limit the rules’ effectiveness. These types of limitations would be included in the FCC’s larger budget and would have to pass through Congress and be approved by the President.

Communications Act Rewrite

The fourth possible action is that net neutrality gets wrapped up in a larger rewrite of the Communications Act. In the medium and long term, this is actually likely to happen. Congress has been seriously discussing updating the Communications Act since 2013, and any update would almost inevitably include rules that impact an Open Internet. While Open Internet rules may be a comparatively small part of this larger process (dwarfed by, among other things, working out rules related to the tech transition), decisions made during a rewrite would have a significant impact on the Open Internet.

All, Some, or None

Right now it is hard to know which, if any, of these will come to fruition. We here at Public Knowledge are keeping our eye on all of them. So celebrate the win and savor the victory. But keep an eye out for another alarm from us, because we’re not quite done yet.