Any discussion must be built on facts. But the FCC has not asked the questions, and ISPs have not provided answers.

Earlier this week, the Open Internet Advisory Committee – a group formed by the FCC to provide advice about the Commission’s Open Internet Order (also known as the net neutrality order) – released itsfirst report.  The Committee examined a host of thorny issues left unresolved in the FCC’s 2010 Order.  The overall, but unstated, conclusion was clear: in the almost three years since the Order, the FCC has done almost nothing to improve its understanding of the issues in question.  It, and the public, is almost three years older but far from three years wiser.

We Don’t Know

Nowhere was this inaction more striking than in the report’s discussion of usage based billing and data caps.  The report’s observation that “much information about user understanding of caps and thresholds is missing” should be the subheading for the entire data caps section.  The section is shot through with clauses like “may require future monitoring,” “lack of definitive data,” “no definitive standard,” “these questions require more information,” “questions cannot be answered because there is no quantitative evidence,” and “little public analysis.” 

The Committee is diverse, with representatives from ISPs, content creators, edge providers, consumers, and more.  Finding consensus on an issue as divisive as data caps would be hard under any circumstances.  But doing so in a largely data-free environment was probably doomed from the outset.  With no data to test assertions, the discussion could have been little more than competing assertions.

It Did Not Have to Be This Way

Data caps, and concerns about data caps, are far from new.  As early as 2011 Public Knowledge, along with our allies, sent a pair of letters to then-Chairman Genachowski urging the Commission to start collecting simple data on how data caps were implemented and administered. 

Without a response from the Commission, in 2012 Public Knowledge went directly to the CEOs of major ISPs asking them to explain how and why they implemented their data caps.

In the meantime, Public Knowledge released two reports raising concerns about data caps and urging the Commission to take steps to better understand their usage and impact. 

As the report indicates, none of this resulted in either the FCC or the ISPs shedding any light on data caps.

What We Do Know

In this information vacuum, the report does take steps to explain some of what is happening with data caps.  Although it does not provide a source, it asserts that ISPs view data caps as set in a way that only impacts a handful (1-2%) of customers.  Unfortunately, there is nothing to indicate that the caps are ever reevaluated once they have been set as usage patterns change. 

The report also dismisses the once-popular theory that data caps can be effectively used to manage network congestion, rightly pointing out that caps “provide no direct incentive to heavy users to reduce traffic at peak times.”

An Obligation to Ask

In the Open Internet Order, the FCC committed to continue to monitor the internet access service marketplace.  This report suggests that monitoring has been, at a minimum, inadequate.  Almost three years since the Order was first released, most of the debates remain the same.  Advocates like Public Knowledge continue to raise concerns.  ISPs continue to explain why those concerns are not justified.  And, in the absence of actual information or action by the FCC, the debate pretty much stops there.

The FCC has not even taken steps to act on data caps when it has an obligation to do so.  Over a year ago, Public Knowledge filed a petition asking the FCC to look into the way that Comcast was treating internet video delivered to Xbox 360 consoles and TiVos.  With nothing to show for the year since, today Public Knowledge sent a follow-up letter demanding action.This report serves as a useful introduction to the issues that it confronts, and the Chairs and participants should be commended for producing it in the absence of useful information.

Very little in the report should come as news to those following these issues closely, or to those tasked with regulating it.  Issues have been outlined.  Viewpoints have been explained.  Questions have been listed.

If the FCC wants to be taken seriously, it must now take the next step.  Advance the debate.  Gather, and make public, actual information.

Original image by Flickr user EssG.

Making public domain works available in a public domain way respects copyright and spreads culture.

Yesterday’s news from the Getty Museum that they were making high-resolution images of 4,600 works in their collection available for free download should be celebrated by anyone who cares about art and culture. And it should also be celebrated by anyone who cares about copyright and the public domain, and who is thinking about what it means to be a modern museum dedicated to bringing people into contact with art.

Let’s get the art and culture part out of the way first.  One of the great things about museums is that they allow people who are not, say, massively rich oil magnates to access culture. And one of the great things about the internet is that they allow people who are not physically near something to experience it themselves. Combining the two makes all sorts of sense.

Museums like the Getty house art, and some art is protected by copyright. And Getty should be commended for recognizing that just because some art is protected by copyright, all is not.  A huge portion of the art in the Getty’s collection is in the public domain.  That means that it is no longer protected by copyright and that no one – not Getty, not you, not me, needs permission to make a copy of it.

But there is a difference between being legally able to make a copy and being organizationally willing to make a copy. And there is also a difference between being organizationally willing to make a copy and being willing to make that copy freely available to the public. Getty made all the right choices in making the files available to the public in an unrestricted way.

Public Domain Means Anyone Can Use it For Anything

To be clear, making high-resolution scans of public domain art does not bring it back under copyright protection.  That means that Getty does not have any copyright in the files that it is making available, even though it surely spent a great deal of time and money making them.

But not having copyrights in images does not always stop people or entities from trying to assert copyright-like control over files. It is not hard to imagine Getty making these files available for non-commercial use only, or in a way that required attribution to Getty for use. While these requests could not be enforced via copyright, they could be enforced (at least somewhat) as part of the Terms of Service for the site.

Getty declined to do that. They recognized that public domain means freely available to everyone for any purpose and did not try to set up extra restrictions on use. It is true that they ask why you are using the images when you download them. And, in their announcement, they did request that users attribute the source of the files to Getty. But there is no red light that goes off when a user indicates that she will use the image commercially, or a pop up demanding attribution under penalty of lawsuit.  

In making all of these decisions, Getty recognized that part of its mission is to share its collection with the public. It also expressed confidence that sharing its collection digitally would not mean that people would stop coming to the museum to see the original works in person.

Going Beyond Images to 3D Files

Getty is not the first museum to make digital files of its artwork available to the public, but as one of our nation’s most prestigious institutions, its decision will hopefully push other museums to follow suit.  And as they examine their collections, those institutions should not stop at paintings and drawings.  Thanks to the expanding availability of 3D scanning and 3D printing, they can make their sculptures and installations available as well. The Art Institute of Chicago, the Metropolitan Museum of Art, and the Brooklyn Museum have started to do just that.  

Pretty soon you will be able to print out a copy of a Cezanne still life and hang it over a 9th century bust of Hanuman.

Digital image courtesy of the Getty’s Open Content Program.

One good, one bad, and one undetermined thing about the world view of book publishers.

Yesterday, a federal court found Apple guilty of antitrust violations in connection with the creation of its digital bookstore. The decision is full of interesting information about antitrust law and emerging markets. But in addition to that, the opinion – drawing on internal emails and in-court testimony – offers a compelling description of how publishers see their world. 

At least three things jump out:

1. Everyone at the Top Understands That There is a Relationship Between Availability and Piracy

On an abstract level, this point will come as no surprise to regular readers of this blog or anyone involved in discussions around digital copyright for the past decade or so.  Digital locks do not combat piracy.  Suing your customers does not combat piracy.  The best – and really only – way to combat piracy is to offer the public an easy way to buy your products at a reasonable price.

While this passes for common knowledge in many places, the opinion makes it clear that the people at the highest level of Apple (less surprising) and the publishing houses (more surprising) recognize the connection as well.  The CEO of Macmillan described windowing – the practice of delaying the release of e-books for weeks or months after the physical version was released – as “really bad” because it encouraged piracy.  The CEO of Penguin called windowing “entirely stupid” and admitted that it “actually makes no damn sense at all really.”  An internal Penguin study showed that the sales of a windowed e-book never recovered – if a book was delayed people simply didn’t buy it.  Macmillan and Random House also called windowing “a terrible, self-destructive idea.”

Steve Jobs pushed the publishers on this point, telling one executive “Without a way for customers to buy your ebooks, they will steal them.  This will be the start of piracy and once started there will be no stopping it.”

While no one would argue that major publishers have fully come to terms with this lesson (see, e.g. the fact that they self-destructively hold onto DRM), it is encouraging that they are at least aware enough of it to discuss it.

2. Publishers Have Not Come to Terms with Pricing Digital Goods

A large part of the negotiations between Apple and the publishers was the tension between the publisher’s desire to increase the price of e-books and Apple’s recognition that high prices would lead to lower sales.  While it is clear that both Apple and the publishers were happy raising prices of e-books beyond Amazon’s price, it does appear that Apple was concerned with constraining what it viewed as the publisher’s instinct to raise prices as high as possible.

At least on some level, this tension could flow from each side’s relative comfort with the idea of digital marketplaces.  Apple has been running iTunes and its app store for years and recognizes that increased prices can reduce sales and ultimately lead to lower profits.  While this is true in every market – be they physical or digital – that operates according to fundamental economic principles, it can be exacerbated in digital markets.  Unlike with physical books, there is essentially no marginal cost to producing an extra e-book.  Even better, those e-books don’t even come into existence until someone has purchased them.  With their rush to increase prices as much as Apple would let them and their concern about protecting the “perceived value” of books among the public, publishers seem unable to consider the fact that lower prices could increase their profits in the long term.

3. Publishers Are Very Concerned About Protecting Their Existing Physical Market

The terms of the deal between Apple and the publishers is expressed explicitly in terms of the price of physical books – especially hardcover new releases.  Internal emails suggest that one of the publishers’ concern about the Amazon pricing model was that it would undercut prices and perceived value of physical books.

Depending on how you view the future of publishing, this is either savvy or short-sighted.  If you assume that book publishing is going the way of music and movies before it – away from physical products and towards digital downloads – this concern about protecting the hardcover market reads as self-destructive.  Don’t hobble the future to protect the past – you will just end up killing both!

On the other hand, if you think books are different, it can feel much more reasonable.  If the future of books is a world where physical books exist side-by-side with e-books, it makes sense not to undermine the physical market for the sake of the digital one.  That future may require a more thoughtful consideration of the relationship between physical and digital beyond “digital is 20% cheaper,” but we are still in early days.  All this means that while the first two lessons are fairly easy to place, this one could end up being the most interesting.

Original image by Flickr user Biblioteken i Östergötland.

Introducing laws that regulate 3D printing before figuring out what 3D printing is will not lead to success.

We’ve written a lot about various legal and political reactions to 3D printed guns.  Fundamentally, we have urged lawmakers to take the time to focus on what really concerns them about the idea of a 3D printed gun and to make sure that any new legislation actually addresses that concern.  In almost every case, singling out a specific method of manufacture (be it 3D printing or anything else) is not the best way to do that.

While this is a good legislative practice generally, sometimes it can come into conflict with another instinct – the need for publicity.  Occasionally, lawmakers are motivated more by their desire to get a headline than their desire to make good policy.  All of the attention that 3D printing has been getting lately makes it a tempting target for just that impulse.

There have already been a handful of bills at the local, state, and national level introduced with some connection to 3D printing and guns.  But a recent bill out of New York City stands out as a shining example of legislating for a headline without taking a moment to understand the substance.

Why is 3D Printing in this Bill?

The bill, introduced by New York City Council Members Lewis A. Fidler, Letitia James, Margaret Chin, Domenic M. Recchia, Jr., Leroy Comrie, Mark Weprin, Annabel Palma, Helen D. Foster, Gale A. Brewer, Maria Del Carmen Arroyo, Inez E. Dickens, Robert Jackson, Andy King, Peter A. Koo, G. Oliver Koppell, Brad S. Lander, Rosie Mendez, Deborah L. Rose, and Albert Vann is four pages long but you can stop at the beginning.  It starts by adding a new definition to the administrative code of the city of New York.  That definition is for “Three-dimensional printer”:

“A computer-driven machine capable of producing a three-dimensional object from a digital model.”

Why does this definition betray shameless headline chasing on behalf of Council Members Fidler, James, Chin, Recchia, Comrie, Weprin, Palma, Foster, Brewer, Del Carmen Arroyo, Dickens, Jackson, King, Koo, Koppell, Lander, Mendez, Rose, and Vann?  A 3D printer is “a computer-driven machine capable of producing a three-dimensional object from a digital model,” isn’t it? 

Sure.  But so is every other modern manufacturing machine.  A CNC mill fits that definition.  As do laser cutters.  So do industrial arms that build cars on assembly lines.  And robots.  And, for that matter, automated crochet knitting machines.

Which is fine.  If these Council Members think that people using machines to make firearms is a problem, they should draft a bill that addresses that problem.  Alternatively, if these Council Members think that people specifically using 3D printers to make firearms is a problem, they are free to draft a bill to address that too.

But that’s not what appears to have happened here.  This bill reads like it was drafted after someone saw a bunch of stories about 3D printed guns, but before they took any time to think about 3D printed guns, let alone formulate a specific concern about 3D printed guns.

Many Bad Reasons, Still Looking for a Good Reason

Of course, there are plenty of reasons to move quickly to put forward a 3D printed gun bill.  But none of them have to do with creating carefully considered policy.  Getting a few press hits can certainly be valuable.  But that value is diminished when they draw attention to the fact that you have no idea what you are talking about and do not have an interest in learning about the issue before you start drafting laws.

What happens when you rush to the press without doing any research or asking simple questions?  You look like a jerk.

But I’m willing to be proven wrong on this front.  If either New York City Council Member Fidler, James, Chin, Recchia, Comrie, Weprin, Palma, Foster, Brewer, Del Carmen Arroyo, Dickens, Jackson, King, Koo, Koppell, Lander, Mendez, Rose, or Vann can explain the specific concern they have with 3D printed guns (not 3D printed guns that are also undetectable, or 3D printed guns that happened to be made at home, or some other type of gun that could also be made some other way - something about 3D printed guns because they are made on a 3D printer), or why that concern led them to a definition of 3D printer that encompasses pretty much all modern automated manufacturing machines, I’m happy to walk this back.  Because, especially after this post, the last thing that I want to be accused of being is a jerk.

A Creative Commons license on a 3D printed sculpture does not mean that you can print it however you want.

The past few days have seen an increase incomplaints by 3D printing designers about how companies that manufacture 3D printers use their designs.  It raises questions about how copyright works in the world of 3D printing, and what it means to release designs under a Creative Commons license. 

Copyright Still Exists in 3D Printing

One of the things that makes 3D printing so interesting is that, especially when compared to the world of music and movies, lots of 3D printed objects are not protected by copyright (or any type of intellectual property right) at all.  However, the fact that many 3D printed things are not protected by copyright does not mean that all 3D printed things are not protected by copyright.  

While the line between what is protected and what is not can be a bit complicated sometimes (here is a whitepaper to help you with the details), there is a fairly straightforward rule of thumb: purely artistic things are probably going to be protected by copyright, while purely functional things are probably not going to be protected by copyright.

Sculptures are Artistic

Obvious members of that “purely artistic” category are abstract sculptures.  Just because they are created in a virtual CAD environment or were designed with 3D printing in mind does not prevent them from being protected by copyright.  And that copyright comes with certain protections and rights.  

The most obvious of those rights is the right to decide who gets to copy or reproduce the sculpture.  If you want to copy a sculpture that is protected by copyright, you either need permission from the person who owns the copyright or a reason not to need permission like fair use.

Copying that sculpture without permission can get expensive.  Copyright law lets a courtassume damages up to $150,000 per work if the infringement is willful.  The person who owns the copyright does not even have to prove damages – she can just point to the number in the law and demand that much.

Creative Commons is Permission, but not Permission to Do Whatever You Want

If you own a copyright, you can condition your permission (your “license”) on pretty much whatever you want.  Creative Commons has created a collection of licenses that lets people condition permission to copy on a handful of easy-to-understand factors.  Copy all you want, but give me attribution.  Copy all you want, but give me attricution and make your copies available in the same way to everyone.  Copy all you want, as long as you give me credit and it is not for a commercial purpose 

As long as you comply with the license, you are copying with permission and not infringing on copyright.  But if you copy without complying with the license you are infringing on copyright.  That is just as true for things with Creative Commons licenses as it is with any other thing protected by copyright.  And remember, copyright infringement can get expensive.

Which Brings us to Trade Shows and 3D Printing Companies

One of the most impressive things to watch is a 3D printer print a really cool abstract sculpture. Besides being an interesting process, some abstract sculptures – especially ones that contain shapes you have not seen before or that are hard to make with traditional manufacturing techniques – help people understand the potential of 3D printing.  Because of that, it is not a surprise that 3D printer manufactures often use abstract sculptures to show off their machines at trade shows and other promotional events.

But remember, printing an abstract sculpture is creating a copy.  If that sculpture is protected by copyright, in order to create a copy those companies need a license.  For example, if the license is a Creative Commons attribution license, they need to give the designer credit (here’s an easy way to do that).  Without credit, those copies infringe on the designer’s copyright.

And if the license is a Creative Commons non-commercial license, it is a bad idea for these companies to exclusively rely on that license for permission to print it at a trade show or in advertising.  While what constitutes commercial and non-commercial use can sometimes get tricky in the context of Creative Commons, a trade show or an ad for a commercial product is a pretty straightforward commercial use.

None of this means that it is impossible for 3D printing companies to feature Creative Commons non-commercial-licensed designs at trade shows or in commercials.  It just means that those companies cannot solely rely on the offered Creative Commons licenses to do so.  Instead, they need to reach out to designers and negotiate a new license that allows them to use the designs commercially.

What Happens if Copying Continues?

What can a designer do if they see a design being used in a way that does not comply with the generally available license?  Ultimately that is up to them.  The best thing to do is probably to reach out to the company and try and negotiate a license.  But if that fails, there is always a copyright lawsuit.  $150,000 worth of damages (per work) tends to get the attention of even the biggest 3D printer manufacturer.

Image by Thingiverse user Dizingof.