Yesterday news broke that Katy Perry* (among other things, the intended star of the 2015 Super Bowl Halftime Show) demanded that the 3D printing website Shapeways stop selling a model of Left Shark (perhaps the actual star of the Super Bowl Halftime Show). The letter to Shapeways came on fancy letterhead and was full of scary words, but is it backed up by any law?

Quick Background (Costumes and Copyright)

In order to start to answer that question, there are two things that are worth keeping in mind. First, although the letter first broadly references a generic “intellectual property depicted or embodied in connection with the shark images and costumes,” later on it references a specific section of copyright law. In light of that, let’s assume that Katy Perry (and although the letter comes from Katy Perry’s lawyers, they are her representatives so I’m just going to refer to them collectively as Katy Perry because it is more fun) is claiming to have a copyright in the shark costume.

The problem with this is that courts have generally found that copyright does not protect costumes (even fairly creative ones). Essentially, courts have lumped costumes in with other kinds of clothing and considered them all the kind of “useful article” that is beyond the scope of copyright protection. If you are curious, that use in this articles is things like “preventing you from being naked” and “keeping you warm.”

There are some legal theories that could be put forward to try and get copyright protection for a specific costume, but they mostly come into play when there are elements of a costume that could exist independently of the costume or when the costume is tied to a character developed in a book, movie, or play. It would probably be a stretch to put Left Shark into either of these categories.

An addition note is that even if the Left Shark costume is protected by copyright, that doesn’t automatically make Katy Perry the owner of that copyright. But let’s set that aside for now.

Quick Background (DMCA)

The second thing to keep in mind (and I promise I’ll bring all of this home) has to do with the Digital Millennium Copyright Act, or the DMCA for short. There are a number of parts of the DMCA (click here to learn about the part that might prevent you from using your own filament in a 3D printer, ripping your own DVD, or accessing data from medical devices implanted in your chest), but one of them protects websites that host content for people – websites like Shapeways, YouTube, and Facebook – from copyright liability.

Websites get this protection as long as they comply with a specific set of requirements, and are under no obligation to take down infringing content as long as they are in compliance. One of these requirements is to takedown copyrighted content if they get a request from the copyright holder – this request is sometimes called a DMCA takedown request. However, that request includes a requirement that the person sending it affirm under penalty of perjury that they are the owner of the copyright (or their designated agent).

Background Over – Let’s Get On With It

With those two things in mind, let’s look at Katy Perry’s letter. The most important thing about the letter is probably what it is not – the letter is not a real DMCA takedown notice. For one thing, it is missing a link to the actual allegedly infringing work. Perhaps more importantly, it is missing a statement – remember this statement has to be made under penalty of perjury – that the person sending the notice actually owns a copyright in the work being discussed.

Instead, the letter is presented as a “cease and desist” letter, a kind of letter sometimes described by lawyers as a “nastygram.” In some – although not all – cases nastygrams are designed to intimidate the recipient into compliance (often through the use of fancy letterhead and scary language) even if the sender does not actually have the legal power to back up the threats.

It is hard to tell if this letter falls into that category, but there are some interesting clues. First, there is the question of the costume copyrightability at all. It is not clear that anyone owns a copyright in Left Shark. And if no one owns a copyright in Left Shark, no one can demand that a Left Shark model get taken down from Shapeways. Second, there is the question of who would own the copyright in Left Shark if it were to exist. It is certainly possible that Katy Perry was farsighed enough to demand ownership of the copyrights of every costume in the halftime show, but it isn’t automatic.

And third is the choice of a nastygram over a real DMCA takedown notice. Katy Perry has fancy lawyers. They know that a website like Shapeways is immune from copyright liability unless they receive a properly formatted DMCA notice. But they also know that a property formatted DMCA notice would require an oath that Katy Perry actually owned an existent copyright in Left Shark. If they were worried about the truth of either of those things, they might have hoped that a nastygram would give them the outcome they were looking for without exposing them to perjury liability.

Or maybe they just prefer sending nastygrams to DMCA notices. Hopefully Katy Perry will explain what part of Left Shark she owns so we can clear all of this up. Until then, color me a skeptic.

*I admit that I’m not familiar enough with the Katy Perry catalog to artfully weave Katy Perry puns and references into this blog post. You are well within your rights as a reader to expect them, and I’m sorry to disappoint you.

Left Shark image from thingiverse user mstyle183.

This post originally ran on the Make blog under the headline Why Katy Perry’s Lawyers Just Jumped the Shark.  That’s a perfectly good headline.  In fact, many people (and at least one person very close to me) think that headline is better than the one here.  And they may be right.  But this is my blog and I’m sticking with “fishy,” obnoxious scare quotes and all.

Late last year we highlighted the fantastic work that the Cooper Hewitt Museum is doing to set an example for how museums and other cultural institutions can make high quality 3D scans available to the public. Unfortunately, just as long summer days must turn to cold winter nights, we now have an example of a different cultural institution doing a fantastic job of setting an example of how not to handle the same types of issues.

Scene: Sioux Falls, South Dakota

Sioux Falls is home to a high quality cast of Michelangelo’s Moses, one of his best-known sculptures.* The cast itself co-owned by the City of Sioux Falls and Augustana College and is on public display on the campus of Augustana College.

Local photographer Jerry Fisher decided to use the sculpture as his subject while he honed his 3D capture skills, documenting his progress on Twitter and Google +. Unfortunately, this completely reasonable and legal act caught the attention of representatives of Augustana College. Citing an unspecified (and ultimately nonexistent) mixture of copyright and other intellectual property rights concerns, the College asked Fisher to remove his 3D files from the internet. Fearing some sort of liability, Fisher complied with this groundless request, thus depriving himself and everyone else of the opportunity to use the files.

Augustana College’s Request Was Out of Line - The Public Domain is Real

Let’s get one thing out of the way right now: Augustana College had no legal right or basis to threaten Fisher with the specter of infringement. There is no copyright protection for a sculpture that was created at the dawn of the 16^th century by a sculptor who died 450 years ago. All of Michelangelo’s work is firmly in the public domain. If fact, copyright didn’t even exist during Michelangelo’s lifetime. From the moment he sculpted his Moses anyone could copy, remix, and build upon it for any reason, without having to ask permission.

Of course, the sculpture in Sioux Falls is not Michelangelo’s original sculpture. The original Moses is still in Italy. The Sioux Falls sculptures are exact replicas made in the early 1970s - exact replicas, it seems appropriate to mention, that were made without permission of Michelangelo’s estate because the originals are not protected by copyright. There was no copyright on the original sculpture, and there is no copyright in the exact copies of the original sculpture.

If Fisher were practicing his 3D scanning on original sculptures made in the early 1970s, the sculptures would likely still be protected by copyright. Fortunately for Fisher and everyone else, the sculpture in question is not an original sculpture – it is a copy. Just as scanning a 16^th century map doesn’t give me a new copyright in the scan file, casting a copy of a 16^th century sculpture doesn’t give me a new copyright in the cast.

The Norman B. Leventhal Map Center at Boston Public Library scanned this 16th century map, but doing so did not give the library a new copyright in their scan

Without a copyright in the original sculpture or the reproduction, there is simply no copyright reason that Fisher shouldn’t be able to make as many scans as he likes. It is irresponsible, and undermines Augustana’s mission to “enrich[] lives by exposure to enduring forms of aesthetic and creative expressions,” for Augustana to suggest otherwise.

3D Scanning is Not Magic

On some level, the college recognizes that they do not have the right to restrict copies of their Moses cast. People take photographs of the sculptures all the time, but the college does not assert an imaginary copyright interest and request that those pictures be destroyed. But somehow, a 3D scan – just as much a copy from a copyright standpoint as a photo - raised novel and inarticulable concerns with College officials. Fortunately for everyone who is not Augustana College, 3D scanning is not magic and does not give Augustana College or anyone else the right to steal works out of the public domain.

How Did This Happen?

In all likelihood, Augustana College was not acting maliciously when they told Fisher to take down the files, and did not realize that they were doing anything wrong. This case has all of the hallmarks of a type of lawyer-itus (or quasi-lawyer-itus), that tends to manifest itself around copyright. Representatives for the College had a vague concern that the scanning might possibly infringe on someone’s copyright or trademark or something, and that somehow the College could be implicated.

When faced with that vague concern, the College essentially had two choices. One was to do some research in order to find out if their concern was actually warranted. The second, and this is the path it appears they took, was to just say no, throw out scary words like “copyright,” shut the project down, and hope that the problem went away.

The second choice is the lazy choice and is almost always easier. It takes almost no time and effort. But it also takes away the public’s right to access public domain works (the same right, it should be noted, that allowed the casts to be made in the first place).

This type of choice between reacting and thinking is one that leaders at cultural institutions all over the country will be facing in the coming years when they start getting questions about 3D scanning. There is always the temptation to say “no” and get on with your day. But the better response is to take the time to really understand the issue and work to keep the sculptures, buildings, and objects that are in the public domain out of a fake copyright fog. Copyright protection lasts long enough – a combination of fear and laziness should not be allowed to pull works out of the public domain.

Bonus: Today’s Copyright Laws Are Designed To Make Lawyers Overly Cautious

Many lawyers are cautious by nature, but there are elements of copyright law that give them an extra incentive to be even more cautious than usual. Specifically, a quirk of copyright law can make monetary damages balloon unusually quickly in infringement cases.

In order to get money in most civil cases you need to show your damages. Get hit by a car? Show the court your medical bills and lost wages. Painter paint your wall hot pink instead of staid beige? Show the court how much it cost you to get the work redone.

Copyright law is different when it comes to damages. A copyright holder can sue for actual damages, just like the person hit by a car or with a bad paint job. But they also have the option to sue for what are called “statutory damages.” Instead of pointing to the actual cost of infringement (that illegal download of a song deprived the artist of $0.99), a copyright holder can just point to an amount that is written into the text of the law to serve as the value of the damages. That amount can be in the six figures for a single infringement (that’s how infringing 24 songs can result in a $1.5 million damages award).

Among other things, the threat of these statutory damages makes lawyers super cautious around potential copyright infringement claims. Even if he was infringing, the actual cost of Fisher making unauthorized copies of the sculpture would likely be no more than a few hundred dollars (if that). Faced with that kind of liability, a lawyer may decide to take a bit of a risk and err on the side of public access. But in the face of hundreds of thousands of dollars worth of liability, a lawyer has to be pretty sure before saying “yes,” even if they start from the assumption that the work is in the public domain. And getting that sure can take a lot of time.

Fortunately, there may be an opportunity to change this. Congress is taking a serious look at updating copyright laws during 2015, and we will be working hard to get statutory damages reduced or eliminated. That will make it easier for people to access works that are in the public domain by significantly reducing the cost of errors. Keep your eyes open for more discussion of this in the coming months.

* It is actually home to casts of two sculptures: Moses and David. While this post focuses on Moses, you can rest assured that the analysis also applies to David.

Statue image credit: Jerry Fisher

Last week, we wrote about Augustana College (SD)’s demand that 3D scans of its copy of Michelangelo’s Moses be taken down from the internet. To justify this request, Augustana cited vague (and, it should be noted, nonexistent) copyright concerns. As a result of its ridiculous assertion of a copyright interest in a copy of a 500-year-old sculpture, Augustana deprived the public of 3D scans of this public domain work.

Yesterday, Augustana responded to this controversy in a comment to Slate. Instead of apologizing for attempting to claw Michelangelo’s Moses out of the public domain with threats of copyright infringement, Augustana doubled down on the falsehood that scanning the replica somehow required permission:

Mr. Fisher did not seek the permission of Augustana College nor the City of Sioux Falls prior to pursuing the 3D reconstruction technology or before offering [the 3-D model] to others. … In October 2014, we reached out to Mr. Fisher to express our concern over his actions in light of the fact that he did not seek permission from the College, the City of Sioux Falls or the families of the artist and/or the Fawicks [the family who donated the statue]. At this point, Mr. Fisher made the decision to un-publish the 3D image file.

Let’s be clear again: Mr. Fisher (the person who did the scanning of this public domain sculpture displayed in an outdoor, public area of the college) was and is under no obligation to seek permission from Augustana College, the City of Sioux Falls, the Fawicks, or anyone else before making the scans. The original sculpture is 500 years old. The replica that Augustana owns is not protected by any additional copyright.

Mr. Fisher did not ask for permission before scanning the sculpture for the same reason I did not ask for permission before writing this blog post: the permission of Augustana College, the City of Sioux Falls, and the Fawicks is irrelevant to the endeavor. If I asked and they said yes, I would write this blog post. If I asked and they said no, I would write this blog post. Their opinion about it does not matter. Augustana College, the City of Sioux Falls, and the Fawicks have no ability to use a baseless threat of copyright infringement to control what people do and do not do with Michelangelo’s Moses – even their copy of Michelangelo’s Moses.

When confronted with their copyfraud, the correct thing for Augustana to do would have been to apologize and invite Mr. Fisher to repost his scans. Instead, Augustana decided to suggest that anyone scanning their copy of Michelangelo’s Moses first needs to get permission from Augustana, the City of Sioux Falls, and the Fawicks. That claim is wrong. It is also an embarrassment for Augustana College and, by extension Sioux Falls and the Fawicks.

Image of statue and image of scan courtesy of Jerry Fisher

I like to listen to NPR when I work out but radio reception at my gym is horrible.  In order to resolve this problem I wanted to record NPR and download it onto my MP3 player.  Since I also travel a bit, I wanted to be able to access the recording on the road (I actually like finding local NPR stations, but sometimes I can’t get good reception).

If all you want to do is record a radio stream, this instructable is amazing, helpful, and all you really need.  If you want to go a bit nuts and go well beyond what’s necessary, here’s a more elaborate option.

Here are the steps I had in mind:

• Record audio automatically
• Edit out parts of the recording as needed
• Transcode edited WAV recording into MP3
• Make MP3 available anywhere with an internet connection
• Automatically load edited MP3 onto MP3 player

Bonus challenge: I wanted to avoid making my (7+ year old) home laptop a core part of this setup because I didn’t want to have to keep it on all the time.  At one point I was using a local ubuntu server I had running all of the time to do some of it, but it was a pretty underpowered via epia rig (good from an electricity standpoint, bad from a performance standpoint).  That made the MP3 conversion slow.  As a result, I moved the recording, transcoding, and editing to the cloud for $5/month.

Outline of process:

1. Initiate WAV recording on remote server
2. Stop WAV recording on remote server
3. Initiate WAV recording on remote server (I’ll explain this below)
4. Stop WAV recording on the remote server
5. Combine the two WAV files created in steps 1 and 2, 3 and 4, respectively
6. Transcode the unified WAV file into a single MP3 file
7. Download the MP3 file from the remote server to a local MP3 player
8. Unmount the MP3 player

To put it it bit more simply - create the file on the remote server and then move it onto the local MP3 player.

What you will need (or at least what I used):

• A cloud server running ubuntu (I used Digital Ocean because they had great documentation to walk me through a process I didn’t fully understand.  You could just do this with a local computer). $5/mo
• A Raspberry Pi (although this is not necessary if you have a linux box that is always running - raspberry pi as the advantage of having a low enough energy requirement that I don’t feel bad running it all the time). $40
• An MP3 player.  I use a sansa clip for working out because it is small, relatively cheap, gets FM radio reception, and much more sweatproof than my phone.  But anything that mounts as an external drive will work here. $40.

Step 1: Prepare the remote server

I’ve been running a local ubuntu server for long enough that I almost kind of know what I was doing.  Fortunately, the Digital Ocean’s documentation was fantastic and helped me though the complicated parts.

After setting up the cheapest ubuntu server available (this is an embarrassingly low impact use of a remote server) there were a few things that I made sure were working:

First, set up SSH keys for access.  This is more secure and allows my local computer to log in automatically.  Tutorial here.  Life is slightly easier if you have generated the public keys for all of the local computers (including the PI) you want to use to access the remote server ahead of time (the server setup will let you automatically include them) but only just.  It isn’t the end of the world if you do it after the server is set up.

Second, make sure your server automatically installs security updates.  The server is a computer and it needs updates just like any other computer, but I’m not fooling myself into thinking that I will ever remember to do this.  Tutorial here.

Third,  make sure lame, mplayer, and sox is installed on your server.

Step 2: Create some scripts

This section builds off of this amazing instructable from before.  As I mentioned above, I made this process a bit harder because I wanted to edit out about 10 minutes from the middle of the recording.  Why? Because it was a recurring segment that I didn’t really like and its my recording so I can do whatever I want.

Instead of recording everything and finding a way to automatically edit out the part I didn’t want, I decided it would be easier to record the first part, wait 10 minutes, and record the second part.  After that I pulled the two parts together and turned them from a (big) WAV file into a (small) mp3 file.  In order to do that, I needed to create 4 super small scripts.  (Note: there is probably a much more efficient way to do this).

streamrecord0 and streamrecord 1

These are identical programs, except for the fact that they name their output “mystream0.wav” and “mystream1.wav” respectively.  One is used to record the first chunk and one is used to record the second chunk.  The entirety of the scripts is below.  Just copy it into a text editor, save it, and make it executable (as described here.)

#!/bin/sh
NOW=$(date +“%b-%d-%y”)
mplayer “http://wamu.org/streams/live/1/live.pls” -ao pcm:file=/tmp/mystream0.wav -vc dummy -vo null ;

and

#!/bin/sh
NOW=$(date +“%b-%d-%y”)
mplayer “http://wamu.org/streams/live/1/live.pls” -ao pcm:file=/tmp/mystream0.wav -vc dummy -vo null ;

There is no line break in the line that starts with “mplayer."  Replace the URL with the URL of the stream you want to record (this can often be found by looking for a streaming option called "MP3” or “PLS” - here’s WAMU’s page as an example.  It WILL NOT just be the main website of the station).  /tmp/mystream0.wav is the name of the output file and can be changed to whatever you want (just make sure you change the other scripts accordingly, and that you name the outputs of the two files different things or the second one will just save over the first one).

pkill

This script stops the streamrecord script, thus “finalizing” the file. It probably doesn’t even need to be a script.

pkill mplayer

soxer

This script takes the two recorded files, combines them, and turns them into a single mp3 file.

#!/bin/sh
pkill mplayer;
sox /tmp/mystream0.wav /tmp/mystream1.wav /tmp/mystream2.wav;
lame /tmp/mystream2.wav /home/mystreamB.mp3;

The first line ends any recording that is happening.  The second line (the sox line) takes the two recordings (mystream0.wav and mystream1.wav) and turns them into a single recording  (mystream2.wav).  The third line (the lame line) takes the single recording (mystream2.wav) and turns it into an mp3 (mystreamB.mp3).  Change that final directory (just /home/ in the example above) to wherever you want the file to go.

Step 3: Schedule some scripts

Now you have some scripts, but they are just kind of hanging out.  They need to be scheduled to do us any good.  This is a job for cron.  Cron is a program that automatically runs scripts at scheduled intervals, which is exactly what you want to do.

Typing “crontab -e” in your command line will bring up the croneditor (there are also various programs that can guide you through the process).  My cron table looks like this:

30 4 * * * /scripts/streamrecord0
50 4 * * * /scripts/pkill
00 5 * * * /scripts/streamrecord1
30 6 * * * /scripts/soxer

The first number is minutes, the second is hours, and the next 3 are day of month, month, and week.  Since I want these to run every day, the last 3 are just *, which means “every time.”

As you can see, streamrecord0 (which lives in the /scripts/ directory) starts at 4:30am.  At 4:50am pkill stops it.  At 5:00am streamrecord1 starts.  At 6:30am soxer stops streamrecord1, merges streamrecord0 and streamrecord1, and turns the output into an mp3 (because that’s what is in the soxer script).  While everything else is pretty much instantaneous, transcoding almost two hours of WAV into mp3 takes about 3 minutes (which will vary by processor).  If you want to see how long your rig will take, just type “lame [combined wav file] [location and name of output file]” like you see in the soxer script into the command line and watch.

Congratulations!  Now you have the recording of your choice on a server far away.  It’s time to bring it home.

Step 4: Prepare your local computer (Raspberry Pi)

I explained why I am using a raspberry pi for this above, but you can use pretty much any computer that will be on when you need it for this.  If you are using a raspberry pi, set it up.  I followed adafruit’s guide, specifically steps 1, 2, 3, 6, and 7 (although 7 just made my life a bit easier and isn’t strictly required).  If you didn’t when you set up the original server, you will also need to add the pi’s public key (in ~/.ssh/id_rsa.pub) to the cloud server (in /root/.ssh/authorized_keys by default).

Step 5: Create script on local computer

This one is pretty easy.  Assuming you have ssh set up correctly, you can just pull the file off of the cloud server automatically.  I also added a line to my script that unmounts my mp3 player so I can just pull it off of the pi in the morning (this means that if I don’t use the mp3 player that day, I need to detach and reattach it before I go to bed so it is actually mounted when the script runs).

Create this script the same way as the others (and don’t forget to make it executable).  I called it “pipull” because it pulls the file for the pi.

#!/bin/sh

scp USERNAME@IPAaddressOfRemoteServer:/recordings/mystreamB.mp3 /media/0123-4567/PODCASTS/mystreamB.mp3;

umount /media/0123-4567;

in order for this to work for you, you need to replace “USERNAME” with your username for the remote server (hint: it is probably just “root”) and IPAaddressOfRemoteServer with, you know, the IP address of your remote server.  Also, if you changed the output  location of the mp3 you will need to change that part.

The /media/0123-4567/PODCASTS may be specific to your MP3 player as well.  Mine happens to mount at /media/0123-4567 and have a default directory of PODCASTS, but if yours does not you will need to make changes accordingly.

The scp part automatically transfers the mp3 from the server to your remote player (and overwrites any existing mp3 by the same name - like yesterday’s).  The umount unmounts the player.  Note: my MP3 player doesn’t recognize that the file is actually new and if I don’t tell it to play it from the beginning the file will begin playing where I ended the previous day. This can be slightly disorienting.

Step 6: Schedule your script

Just as with the server, the final step is to schedule your script to happen every day.  My crontab looks like this:

34 6 * * * home/pi/scripts/pipull

Note that it runs at 6:34am.  That gives the remote server time to turn the WAV file into an MP3 before downloading.

And that’s it!  One final note.  In order to make my mp3 player mount automatically (instead of having it pop up a dialogue box asking me if I wanted to mount it) on the pi, I opened the pi’s file manager (via VNC ) and went to edit -> preferences -> volume management.  There I checked “mount mountable volumes automatically” and “mount removable media automatically” and unchecked “show available options for removable media."  I don’t know if all of  those are strictly necessary, but they got the job done.

This post was originally published on Makezine.com.

Earlier this week news broke that the long running patent infringement lawsuit between 3D Systems and Formlabs is over. The two sides settled, agreeing to dismiss all claims and counterclaims and for each side to pay its own legal costs. Additionally, Formlabs will pay 3D Systems an 8% royalty on Formlabs sales. This development brings to an end one of the great legal dramas of the early desktop 3D printing era.  However, some questions remain.

The Original Suit

Around this time in 2012 3D Systems – one of the largest and oldest players in 3D printing – sued Formlabs – then a startup desktop 3D printing company that had not yet fulfilled its kickstarter orders. This was the first patent lawsuit of the desktop 3D printing era, and the first time that one of the established 3D printing companies decided to sue a desktop manufacturer.

As elaborated in this writeup of the original suit, the suit raised a number of questions. Unlike the lawsuit between Stratasys and Afinia that would come the following year, 3D Systems’ lawsuit against Formlabs did not necessarily have direct implications for other desktop printers. This is because Formlabs’ printer did not share its core process with most other desktop printers. But questions remained: did Formlabs find a way around 3D Systems’ patents? If so, would they be able to afford to defend themselves? If not, would 3D Systems use its patent portfolio to quash this next generation desktop 3D printing technology, or possibly enter the market themselves? Was this all just a way for 3D Systems to reduce the price of Formlabs before trying to buy the company?

We Wait

After the initial lawsuit was filed in South Carolina, not a lot happened in public. The partieswent back and forth, eventually requesting and receiving a series of extensions from the court. Oftentimes, these extensions are granted when the parties are privately negotiating a settlement.

In November of 2013 3D Systems voluntarily dismissed the case against both Formlabs and Kickstarter (oh yeah, for a period of time Kickstarter was involved in this suit as well. This could have had massive implications for Kickstarter as a platform for crowdfunding hardware, but nothing appears to have come of it so we can set it aside for now.), only to refile an amended complaint against Formlabs in the Southern District of New York. This amended complaint involved different patents, but the core of the complaint was the same. Very little of notehappened publicly in the new case until now.

The other notable development during this time was the presence of a documentary camera crew. The crew was recording footage that would eventually be turned into the 3D printing documentary Print the Legend. A key storyline in Print the Legend is the suit between 3D Systems and Formlabs, and the interactions between 3D Systems CEO Avi Reichental and Formlabs CEO Max Lobovsky. Perhaps most interestingly in this context, at one point Avi Reichental explains to the camera that the entire lawsuit has caused 3D Systems to rethink their approach to intellectual property and that it was thinking about doing something new. Unfortunately, the film does not follow up on what that new approach could be and 3D Systems itself has said very little publicly to elaborate. What does it mean to rethink an approach to intellectual property, and what impact could that rethink have on this lawsuit and 3D printing more generally? We still don’t know.

The Settlement

It would be great if the settlement answered all of the questions raised by the lawsuit. Regrettably, on its face it does not. The public memorandum of the settlement is 3 pages long(most of which is taken up by headings, signatures, and whitespace) and almost totally devoid of information: the parties agreed to drop their claims, everyone is paying their own expenses. Neither Formlabs nor 3D Systems sought fit to issue a press release or post a blog post in the wake of the settlement.

However, that settlement document was augmented by a filing quietly made by 3D Systems with the SEC.  In the filing 3D Systems disclosed that they granted Formlabs a license for the patents involved in the lawsuit in exchange for “8.0% of net sales of Formlabs products through the effective period.” The filing does not elaborate which products are included or how long the agreement will remain in place.

The combination of the settlement and the filing answer some questions, but leave others. Perhaps first and foremost, we do not really know how strong 3D Systems’ case was against Formlabs. The parties could have settled because 3D Systems had a strong case and Formlabs knew it could not win. Alternatively, the parties could have settled because 3D Systems had a weak case but decided they would rather settle than make that weakness known to everyone.

We also do not know if this is part of some sort of new intellectual property strategy for 3D Systems. Maybe the 3D Systems patents are strong, but 3D Systems decided to license them to Formlabs as part of their new (undisclosed) strategy.  Maybe the 3D Systems patents are weak, but they are still offering some sort of cheap license as an insurance policy to Formlabs.  The combination of the significant-but-not-company-destroying 8% royalty rate with the possibility of 3D Systems trying a new intellectual property strategy makes it hard to read the settlement tea leaves with any precision.

Even with the uncertainty, we do know some things. Formlabs is not immediately shutting down as a result of this suit. Similarly, Formlabs was not acquired by 3D Systems. 3D Systems and Formlabs did not take this opportunity to announce a new partnership or joint venture. And 3D Systems did not roll out a new intellectual property strategy in conjunction with the settlement.

Looking Forward

Of course, the absence of an announcement does not mean that none of these things happened or will not happen in the near future. But they fact that they have not been announced yet, especially since the royalty rate was announced, is at least worth noting.

The Consumer Electronics Show is next month, and it might (or might not) be a place where we start to get more answers about how 3D Systems and Formlabs will walk away from this lawsuit, and how they will see each other going forward. Do either Formlabs or 3D Systems roll out something new? Does 3D Systems announce a desktop printer that competes directly with Formlabs? Does 3D Systems announce their new intellectual property policy?

Or does nothing happen, leaving us all to keep wondering