This post originally appeared in TechCrunch

Mashups are one of the great art forms of our time. Easy and accessible digital tools have allowed anyone to remix videos, music and photographs into their own original works: Mashup culture has produced fantastic music, critical video, and delightful cultural artifacts of all kinds.

patent-chart3However, mashups are ultimately limited by the nature of their source material. The types of things that mashups draw from – videos, music, photos – are also the types of things that are protected by copyright, which means mashup creators need to take copyright into account when creating their works. Sometimes, because of rules such as fair use, the creator does not need permission from the person who owns rights to the source material. Other times, mostly because the work falls outside of the scope of fair use, the creator does need permission. The requirement for permission inevitably prevents some mashups from being seen by a wide audience and makes it harder for creators to make money.

Enter 3D Printing

There are plenty of reasons to be excited about 3D printing, but one of them is that it moves beyond the world of things protected by copyright. When you step away from your computer screen and look around, you realize that the physical world – the real world – is full of real, physical things that are not protected by copyright. In fact, the world is full of things that are not protected by any sort of intellectual property right at all. That means that you can take them and do whatever you want with them. And that includes mashing them up.

One of the best examples of this so far is the Free Universal Construction Kit. The kit remixes 10 different construction toys into adaptors that make them interoperable. These toys are functional objects so they are outside of the scope of copyright. While some of them were patented when they first came to market, patents only last 20 years. That means that most of the toys are no longer protected. As long as you stick with the toys that are no longer protected by patent, you can remix them to your heart’s content.

The Free Universal Construction Kit is just the beginning when it comes to remixing things. Easy-to-use tools like meshmixer allow people to remix things just as easily as they remix songs or videos. And unlike those songs or videos, many of the things will not be protected by copyright.

One of the keys to this next generation of mashups will be a strong understanding of how copyright interacts with physical objects. While copyright will not protect functional objects, it will protect decorative ones. Understanding functional vs. decorative will mean the difference between a mashup encumbered by copyright and a mashup that is in the clear.

Public Knowledge’s latest whitepaper, What’s the Deal with 3D Printing and Copyright? should help everyone begin to understand what is protected by copyright and to start thinking about what is not protected by copyright. That second category includes a lot of things just waiting to be remixed and mashed up.

This post originally appeared in TechCrunch

FCC Chairman Julius Genachowski wrote last week on TechCrunch about the importance of speed. Specifically, he highlighted the importance of speed in the next wave of Internet innovation. While he is right about the importance of speed, he missed one key point: broadband speed isn’t worth much if it is crippled by data caps.

All of the advances Chairman Genachowski pointed to – in-cloud computing, education, health care, energy, and public safety – will rely on fast broadband connections. 100 megabit-per-second networks could transform the way our society and economy function. But speed is not an end in and of itself.

The fastest car in the world won’t get you very far if you only have 20 feet of road, and a blazing-fast 4G LTE network is not worth much if you are limited to 2 GB of data per month. By and large, next-generation Internet technologies need high-speed networks because they need to move a lot of data quickly. Big Data is called Big Data for a reason – there is lots of it.

Unfortunately, while the FCC has taken steps to encourage the deployment of broadband networks, it has done little to ensure that people can make use of those networks without running into road blocks in the form of data caps.

Data caps impose real costs on consumers and society as a whole. At their most basic, they create a disincentive to use broadband. Instead of freely exploring new technologies, services, and ideas, data caps force users to decide if site, or app, or video is really worth using some of their valuable data.

Caps also have a tendency to freeze innovation. When they set their caps, most ISPs insist that “normal” users will not run into problems. Even if this were true, those caps have proven extremely slow to change. “Normal” usage patterns today barely include streaming video, let alone the types of next-generation innovation that we all look forward to. Under a data cap, that next-generation immersive and creative software to help children learn is reserved for “data hogs” willing to pay tens, or hundreds, of dollars a month in overage fees. That is not a recipe for widespread adoption of innovation.

We are also starting to see ISPs use data caps to pick winners and losers online. Whether it is Comcast exempting its own online video service from its data cap or AT&T offering to let developers buy their way out of its data cap by paying a fee, data caps become an excuse for ISPs to charge more people more money while shutting out disruptive innovators. Of course, it is also no surprise that cable companies are setting data caps well below what it would take to replace their TV offering with an over-the-top competitor.

Data caps are also beginning to create a second-class Internet for traditionally disenfranchised communities. Low-income communities, rural communities, and communities of color are increasingly relying on wireless internet connections as their only internet connection. Single digit data caps make it unreasonable to expect these connections to be used to access the “real,” data rich, Internet.

It is hard to find a positive benefit of data caps to balance out all of these costs. You do not have to be a network engineer to know that a monthly data cap is an inefficient way to address network congestion – something that happens at a specific time and place on a network. Monthly data caps cannot tell the difference between streaming a high-definition movie on a weekday evening and backing up data overnight during the weekend. There is no evidence that monthly caps shift usage away from congested periods – only that they reduce internet usage generally.

And while there may be some benefit in charging heavier users more, data caps are a bad way to do that. Most customers have no idea how much data a given activity requires. Even AT&T and Verizon disagree on how much data an hour of streaming video will consume. This uncertainty guarantees that consumers end up over-paying and under-using when it comes to broadband. If ISPs are going to charge heavy users more, they should at least use a metric that everyone – especially Chairman Genachowski – understands: speed. You may not know a megabit per second from a gigabyte per month, but when web pages start to load slowly you know that it is time for a faster connection.

However much we might wish things were different, limited competition between ISPs means that we cannot rely on market forces alone to ensure the internet remains an open platform that continues to enable innovation without permission. After all but ignoring the issue in the past, the FCC has just started the process of looking into data caps. For over a year, we have been urging them to ask ISPs basic questions about data caps: What is their purpose? How are they set? Once they are set, how are they evaluated against their purpose? What would cause them to change?

Without answers to those questions, we may end up with a blazing-fast network with everyone stuck in the slow lane.

Most people who know of Makerbot know them as a one of the leaders in the home 3D printingmarket.  Fewer people realize that they are also one of the highest profile examples of another movement: open source hardware.  Like open source software, the open source hardware community makes its plans freely available – and usable – to the general public.  This strategy was recently put to the test when another company tried to use Makerbot’s plans to make a Makerbot replica – and sell it for 2/3 of the price.

Open Source Hardware

Although the open source hardware community looks to open source software for guidance, there are obvious differences that arise when principles that were developed for virtual goods migrate to the physical world.  Unlike many open source software projects, open source hardware products are not given away for free.  If you want a Makerbot 3D printer from the Makerbot company, they will charge you for it.  However, you can download the plans and schematics for a Makerbot 3D printer and just build your own without having to give Makerbot a dime.

PK staff attorneys building a Makerbot

The one caveat is that Makerbot, and almost every other open source hardware project, retains control of their trademark.  That means that you can make your own Makerbot, but attaching the Makerbot logo to it would be trademark infringement.

This openness has lead to massive innovation.  The current Makerbot model – the Replicator – simply could not exist without the work done by a worldwide community of 3D printing enthusiasts working together to improve 3D printing.  In fact, without another open 3D printing project (the RepRap project), Makerbot probably would not exist at all.

While the open source hardware community has traditionally freely licensed its plans, a good deal of behavior was dictated by community norms, not licenses.  One of the most important norms was that simply “cloning” - that is, making an exact copy of someone else’s product and bringing it to market – wasn’t cool.  If you were going to copy someone else’s idea and bring it to market, you had an obligation, at a minimum, to improve it in some way.  Copying alone was frowned upon, but copying and improving was celebrated (for a larger examination of the unwritten rules of open source hardware, check out this post by Philip Torrone).

Enter TangiBot

Of course, community norms are not legally enforceable.  So it should have come as no surprise when an engineer named Matt Strong decided to set up a Kickstarter campaign to help market his own cloned Makerbot he called the TangiBot.  How would Makerbot and the open source hardware community react?

Makerbot mostly reacted by doing nothing.  In some ways, that is because there was not a lot they could do.  Strong was copying their technical designs, but that was his right.  The only difference, at least in theory, was that Strong was not calling his 3D printer a “Makerbot Replicator.”  He did make reference to Makerbot and the Replicator in his Kickstarter page, but it was mostly as a nominative use to explain the source of his design.  When Strong talked about the Makerbot Replicator, he was not suggesting that he was selling a Makerbot made Makerbot Replicator.  Instead, he was referring to the fact that he was copying a Makerbot Replicator.  Generally speaking, this is a permitted use of someone else’s trademark.  After all, there are not a lot of ways that Strong could have told people that he was copying a Makerbot Replicator without using the words “Makerbot Replicator.”  He also made it fairly clear that the 3D printer he was selling was not coming from Makerbot.

Did it Work?

So, was this the end for Makerbot?  It did not appear to be.  On Saturday, Strong’s Kickstarter campaign ended, falling about 90% short of his $500,000 goal.  And the reaction from the community was telling.  While at least one high profile community member criticized Strong’s use of the Makerbot name in the Kickstarter campaign (a criticism tied more to the frequency of use than the use in general), there were two other strong reactions.

The first was a “bad form” type of reaction.  Strong was seen by some (but certainly not all) as violating the spirit of open source hardware by simply cloning an existing product.  While some people joined the Kickstarter campaign just to comment against it, by and large both the open source hardware and 3D printing community expressed a reluctance to do business with someone who violated the community norms.  

This is an important reaction, but may not be enough to protect the open source hardware community as it grows.  While some people may know the complicated backstory of the relationship between Makerbot and TangiBot, many others will only see a 3D printer that is 33% cheaper than its (apparently identical) competitor.  As the world of open source hardware expands, this type of reputational check against cloning will likely become less effective. 

The second was a concern that Strong simply could not pull it off.  Makerbot’s popularity is not only tied to the specific design of the machines.  It also flows from a reputation for strong customer service and for well-built actual machines.  Put another way, Makerbot does not just design good machines, it ships good machines.

This highlights a critical difference between hardware and software.  Firefox is a great open source browser.  You can download it from Mozilla’s web site, or from any number of other sites.  To some degree, where you get Firefox from does not matter – every copy of Firefox is exactly the same program.

The same cannot be said for hardware.  Even if they are using the exact same designs, each physical item can be very different.  When people buy from Makerbot, they are buying a Makerbot designed and built product.  A 33% discount on a product that does not work may not be a deal.

What Now?

TangiBot failed to make its goal, but it is unlikely to be the last company that tries to market a clone of a Makerbot at a cheaper price (this happens all the time with another hugely successful open source hardware product, the Arduino).  Ultimately, there are at least two interesting lessons to be drawn from this episode.

The first is that the idea of open source hardware is not as fragile as it might appear.  Even though there are not legal barriers to cloning, there are cultural and economic reasons that make it hard.  Keep in mind that it took almost 8 months after the release of Makerbot’s Replicator for this question to even come up, and the cloner failed.  Hardware, as they say, is hard.  

The second, and this is discussed in the comments of an article on Hack a Day, is that consumers benefit from this type of competition.  Assuming he had the ability to follow through, Strong’s Kickstarter campaign suggests that it is possible to manufacture Makerbot Replicators for less than they are manufactured for today.  It is hard to say where those savings come from – it could be streamlining processes and better sourcing of materials, or it could be from shoddy materials and outsourcing production to less reliable facilities (for what it’s worth, Makerbots are built in Brooklyn while it appeared that TangiBots would be built in China).

As open source hardware grows in popularity, it is all but inevitable that we will see more incidents like this.  Since they raise a rich mix of legal, ethical, and normative questions, those incidents are worth paying attention to.  In a developing area like open source hardware, “right” answers are not always obvious.

In the meantime, here are a few more resources about this incident and open source hardware:

Joseph Flaherty wrote a fantastic article examining the moral questions surrounding Tangibot, with quotes from a number of experts, for Wired.com.

The TangiBot Kickstarter comment page became a center for debate, including some backers who backed simply to be able to participate in the comment thread.

All of this happened just in time for the third annual Open Hardware Summit, which will be held in New York City on September 27th.

This spring, Public Knowledge brought members of the open source hardware community to DC in order to begin to explain to policymakers what this whole open source hardware thing is about.  Audio and video from the event can be found here.

This post originally appeared in Slate

It is something of a fluke that copyright law has become so intertwined with our online lives. For most people, the first things that were easy to create and distribute online—articles, pictures, music, movies—also happened to be material protected by copyright. This trained us to assume that we need permission to do just about anything in the digital space—and, increasingly, in the real world.

Fortunately, a technology on the verge of going mainstream will soon give us a chance to re-examine the role that copyright plays in our lives. By connecting the physical and the digital, 3-D printers remind us that copyright is not a general-purpose legal right that allows people to demand control over whatever they want. Instead, copyright has a narrow scope. And most of the things that make up our world simply do not fall into it.

3-D printing takes digital design files and transforms them into real objects. The methods and materials vary, but all 3-D printers essentially work by building up an object one tiny layer at a time. Industrial 3-D printers have been around for a while and are used to build custom jaw replacements, airplane components, and product prototypes. Personal 3-D printers are just starting to come to the market and can create jewelry, bike hardware, and, well, most of the parts to build another personal 3-D printer.

In the universe of movies, music, books, and articles, the assumption is that you need permission to make use of just about everything (or that you have a reason not to need permission, such as fair use). After all, the difference between downloading a song legally and downloading it illegally largely comes down to whether the person who controls its rights gave you permission to do so.

In the physical world, the assumption is just the opposite. In the majority of cases, you do not need anyone’s permission to copy, improve, or build upon an existing object. Broadly speaking, copyright does not apply to so-called “useful objects”—objects that do something besides look nice. Giant sculptures in the middle of Washington, D.C.? Protected by copyright. That broken hinge on your old record player? Not protected by copyright.

Useful objects can be protected by patent. But patents are harder and more expensive to get than copyrights and last a much shorter amount of time. Without doing anything else, as soon as I write something down (like, say, this article), it is protected by copyright for my entire lifetime plus 70 years after I die. In contrast, in order to get a patent on a new useful object, I would need to pay to apply for a patent, prove that my invention is actually new, and wait to get approved. Even if I got approved, the patent only lasts for 20 years. Trademarks lie somewhere in the middle. They can protect non-useful objects but, like patents, trademarks need to be applied for and are not automatic.

As a result, most objects in the physical world are not protected by an intellectual property right, either because they never were or because that protection expired long ago. Any attempt to draw a parallel between 3-D printing and the early days of online music or movie file sharing must come to terms with that critical distinction. Simply because a website like the Pirate Bay decides to open up a “Physibles” section does not make copying a physical object an act of “piracy.”

After all, the lack of automatic intellectual property rights for all physical objects is not some sort of loophole or blind spot in the law. Copyrights and patents give creators a temporary monopoly in order to motivate them to create. Even though most physical objects have neither copyright nor patent protection, people continue to create, and profit from creating, physical objects. This is true even though we have been copying and improving other people’s physical objects just as long as we have been building them.

At a time when copyright discussions have expanded to the point where universities and students are locked in a fight over who owns the copyright to notes taken in class, 3-D printers serve as a reminder that not everything is swaddled in rights. You do not always need permission to build upon the past. The fact that someone could try to charge you to do something does not mean that they have a legal right to do so.

Fifteen years ago, this would not have surprised anyone. While copyright was important in some industries, it was something that most people did not need to be aware of in their everyday lives. Among its many unexpected side effects, the Internet has forced copyright into our collective consciousness and trained us to believe that there is always a gatekeeper with the ability to grant—or refuse—permission to copy, build on, or use just about anything.

It is impossible to predict all of the ways that widespread access to 3-D printing could change our society. However, before it revolutionizes manufacturing, design, or anything else, 3-D printing may first help us regain a much-needed perspective on the role intellectual property should have in the world.