Update 8/20/17: 3DR Holdings won their case against Just 3D Print.  The decision has what I would consider to be the only actual written consideration of this matter by a court (thus far…).  That court found that there was no defamation because 1) 3DR’s post was not defamatory, and 2) even if they were defamatory, Just 3D Print failed to prove that 3DR’s actions were in any way related to any harm experienced by Just 3D Print.  The court did not need to determine if any copyright infringement actually occurred in the underlying dispute in order to reach this conclusion.  

Surprisingly enough, this is the third post in what I suppose now qualifies as the saga of Just 3D Print downloading hundreds of model files from Thingiverse and selling the prints on eBay (previous posts here and here). 

This post is occasioned by a recent defamation case brought by Just 3D Print against Stratasys in relation to Stratasys’ reporting on the saga. The purpose of this post is to explain what happened in that and related cases, as well as to review the new tweaks in the underlying copyright claims.  All of the disclaimers and facts from the earlier posts apply, especially that this is not legal advice of any kind and that I am not an expert in Pennsylvania civil procedure or defamation law.  This is just my take on a situation that I believe has an impact on how we think about the combination of 3D printing, copyright, and Creative Commons licensing.

A Short Bit of Background

The original post lays out the history so far, but let me give a quick summary of how we got here.

As you may recall, this incident began when Thingiverse user loubie raised concerns about the behavior of a company called Just 3D Print.  Loubie accused Just 3D Print of pulling around 2,000 models and associated images from Thingiverse to sell in an eBay store.  Just 3D Print was allegedly doing this without permission of the designers and, in at least some cases, in violation of the terms of various CC licenses on the models.  Just 3D Print responded with a litany of excuses and justifications (listed and discussed here) essentially claiming that its behavior did not violate US copyright law.  Various designers contacted eBay to accuse Just 3D Print of infringement and the shop was eventually removed.

That would have been the end of it, except Just 3D Print then sued three publications that covered the drama for defamation.

Just 3D Print lost one case, one case is pending (edit 8/20/17: see update above), and won one case against Stratasys.  Stratasys is a 3D printer company not a publication, but the suit was related to articles published on the Stratasys blog.

After the Stratasys win, Just 3D Print reached out to a number of outlets that had covered the original incident (“outlets” being broadly defined as it includes this blog) asking for a disclaimer on the original articles noting that the court had found that Just 3D Print had not infringed any copyrights.

This struck me as strange because, assuming the public facts available were generally correct, it appeared that Just 3D Print probably did infringe on copyrights. It also seemed strange that the parties involved would have litigated an entire copyright infringement lawsuit.

Intrigued, I decided to investigate further.  At the end of my investigations I have  come to two conclusions.  First, that Just 3D Print’s view of how copyright applies to 3D printing files and objects (and just operates generally) continues to be incorrect. Second, that it is unreasonable to claim that the court in the Stratasys case came to any conclusions regarding copyright infringement or, for that matter, defamation.

The Defamation Suits

Before we get to the suits, the Digital Media Law Project has a nice background on defamation law and on Pennsylvania defamation law specifically (the cases were brought in Pennsylvania courts).  When thinking about defamation cases, it is important to look at the actual words used by the speaker and to remember that, generally speaking, the substantial truth of those statements is a defense against those claims.  It is also worth remembering that stating opinions (as opposed to facts) is generally protected by the First Amendment, making it much less likely that they will be considered defamatory (more here).

In its complaints (against Techcrunch, Stratasys, and 3DR), Just 3D Print claimed that the articles resulted in a torrent of hate mail, wasted  hours responding to press, and a harm to Just 3D Print’s reputation (note that if these were the result of legitimate, fact-based criticism, it is highly unlikely that these harms could form the basis for a defamation claim.  In other words, it is only a problem if those harms flow from defamatory conduct).

Perhaps most impressively, Just 3D Print claimed that the defamatory articles by TechCrunch and Stratasys caused it to shut down a product line projected to generate $2,000,000 a month in gross profits within one or two years.  In its claim against 3DR Holdings (publisher of the trade publications and, this claim is restated as projected revenue of $100,000,000.00.

The claim against 3DR has not been resolved yet (edit 87/20/17: it was resolved in 3DR’s favor - see update above), so I’m going to put that aside.  If you are curious, I’ve posted some relevant documents here.

Techcrunch defeated the claim Just 3D Print brought against it.  The decision gives two reasons. First, that the statements made by Techcrunch were opinions that did not qualify as defamation.  Second, that there was a statute of limitations issue.  

The Techcrunch result is what I would have expected.  The media outlets were reporting on a public controversy involving Just 3D Print.  In most contexts, that kind of reporting would not qualify as defamation. The courts did not have to spend anytime on the facts of the underlying copyright infringement claims to reach their conclusion. The nature of the reporting itself meant that the inquiry could stop there.

The Stratasys Case

All of which made the Stratasys case so confusing.  Stratasys lost the case, but the final disposition does not include any sort of explanation of why the court found against Stratasys.  It just found for Just 3D Print.

Intriguingly, the time stamp at the top of the document suggests that the hearing started at 10:55 am and ended at 11:14 am.  Presumably a conclusion that Stratasys defamed Just 3D Print would require the court to examine the underlying copyright infringement claims and the intent of Stratasys in publishing the piece.  After all, Just 3D Print was representing this decision as a vindication against accusations of copyright infringement.  How could a court get through all of that in 19 minutes?  I’m two and a half blog posts in and I haven’t managed to get everything straight.

Fortunately, transcripts of the oral augments are available from the court.*  As is so often the case, the transcripts answer some questions and raise others.

The argument was short, so I encourage you to take a moment to read them yourself (I mean, you’ve already at least skimmed this much of an article about all of this stuff).  I think it is fair to say that they are not a model of judicial clarity or efficiency.  

The entire discussion appears to focus on two questions.  First, the relationship between the person who wrote the article posted on the Stratasys website and Stratasys itself.  Second, the necessity of Stratasys, as opposed to simply a lawyer representing Stratasys, to be present in the courtroom.

Good eye if you noticed that neither of these questions directly relate to the underlying allegation of copyright infringement or the defamatory nature of the articles about those allegations.  

Unfortunately, the court does not really even address either of these preliminary questions.  Instead, apparently frustrated by the discussion of those questions up to that point, 19 minutes in the court summarily cuts off the proceedings and enters a judgment for Just 3D Print.  No real consideration of who published the article. No real consideration of who needs to be in the courtroom.  Absolutely no consideration of infringement or defamation.

The attorney for Stratasys responds to all of this by saying “This is unbelievable” and I’m inclined to agree.  The most charitable reading may be that the court found for Just 3D Print on the procedural grounds that Stratasys failed to appear.  It does not seem reasonable to represent that the court came to a reasoned conclusion on either the defamation claims or the underlying infringement claims.

I’ve asked Stratasys if they plan to appeal this decision and will update this post if I get any additional information.  

Was There Even Infringement?

As I mentioned earlier, this post exists because Just 3D Print reached out to claim that the court had found that Stratasys had defamed them and that the court had found them innocent of copyright infringement.  For the reasons I just explained, this strikes me as at least an over reading of the decision, if not an outright mischaracterization.

More concerning to me was that, when asked for clarification, Just 3D Print continued to argue that no infringement could have occurred.  Many of the reasons they put forward were identical to the ones that surfaced during the original conflict.  I’m not in a position to know if this continued reliance on incorrect readings of copyright law is intentional or merely indicative of a lack of understanding.  In the interest of brevity (ha!), I’ll just refer to the earlier post on this issue that explains why I believe these claims are incorrect, specifically claim #3 that uploading a model to Thingiverse under a Creative Commons license somehow abandons the creator’s copyright, and claim #8 that copyright registration is required for copyright protection to exist and that infringement cannot happen absent that registration.

Just to clarify, uploading a model to Thingiverse under a Creative Commons license does not abandon your copyright interest in that model.  And you do not need to register your copyright in order to get copyright protection.  In fact, your unregistered copyright can be infringed upon.

Was There Ever an Accusation of Infringement?

There is one final argument that Just 3D Print made in the course of our discussion: that Just 3D Print had never been accused of copyright infringement, and that no copyright infringement has ever been proven.

At least parts of this claim are demonstrably false.  The Thingiverse posting that kicked this entire saga off alleged facts that would constitute infringement.  The comments on that post contains other explicit accusations of infringement.  

Furthermore, the exhibits provided to me by Just 3D Print contain over 300 allegations of infringement that were filed against the Just 3D Print eBay shop. eBay’s ”VERO” process is DMCA complaint which means that, in accordance with US copyright law, it requires allegations of infringement to be backed up by a statement under penalty of perjury that the claims are accurate.  The claims sworn to include “I have a good faith belief that the use of the material in the manner complained of above is not authorized by the Intellectual Property Owner, its agent, or the law.”  In other words, there are over 300 instances of Just 3D Print being accused of infringement.  These accusations complied with US copyright law and required the accusers to stand by their accusations under penalty of perjury.

eBay’s VERO/DMCA process allows an eBay shop owner who is accused of infringement to submit a counternotice and have the targeted listing reinstated. However, Just 3D Print did not contest a single accusation of infringement and instead allowed the listings to be removed.  It is important to point out that the failure to respond to a DMCA takedown notice does not meant that the original accusation was correct. There are many structural reasons that make it hard or intimidating to respond to a DMCA notice even if it is incorrect.  

When pressed on this failure to respond – a failure that ultimately resulted in the shutting of the eBay shop and apparently contributed to the loss of millions of dollars of revenue – Just 3D Print replied that the eBay “contact us” phone number simply connected them with a “random person that says they will pass on the info.”  Regardless, the eBay VERO/DMCA page provides explicit instructions on how to challenge an accusation of infringement with a link to the form (no phone call required):


With tens of millions of dollars allegedly on the line, it is unclear why Just 3D Print failed to challenge a single accusation of infringement via the form provided by eBay.  This is all the more confusing because Just 3D Print does not appear to have a general aversion to engaging with legal processes.

Just 3D Print’s second response to the accusations is that it does not consider any of the accusations to be valid because there is no evidence that the individuals reporting infringement had registered their copyright prior to making the accusation.  As noted above, this is not a requirement for copyright infringement.  Furthermore, if this was Just 3D Print’s position, it could have been communicated to eBay and its accusers via the eBay process.

None of this constitutes a judicially arrived-at decision that Just 3D Print infringed on any copyrights.  But, at a minimum, it certainly constitutes allegations of infringement in my book.

Why Does This Matter?

Is this post anything more than responding to someone being wrong on the internet?  

I hope so.  As I’ve noted in the earlier posts regarding the dispute, we are still in a formative time in the context of 3D printing, copyright, and Creative Commons licensing.  While there is some ambiguity, there isn’t total ambiguity.  Throwing settled areas of copyright law into question does not help work towards a solution for the complicated stuff.  When there are legitimate disagreements about the intersection of 3D printing, copyright, and Creative Commons licenses, they are important to explore.  But if someone is bringing dubious claims into a discussion it is important to identify them as such as quickly as possible.

As always, I’ll update these and other posts as more information becomes available.

*Bonus: How do you get all of the legal documents?

It’s both harder than it should be and in fact not so hard.  The important thing to remember when looking up legal documents (and this is true at all levels) is that court document systems are not sophisticated.  Generally speaking, for every court it seems there was a moment in the late 1990s or early 2000s where someone decided that things should be available online.  At that point some contractor spun up an online portal, and that portal has never been updated since.  So when you are searching courts for information just pretend it is 2002 and proceed accordingly.  

For the court in this case, that means going to the public portal and logging in as a public user.  You then need something pretty specific (a case number, a party name) to find documents.  For the Stratasys case that number is SC-17-02-24-6077.  If you can get a thread, you’ll end up at a docket page.  Even small cases will have a number of documents, because this page captures everything that happens procedurally in the case.  Fortunately the names are at least semi-descriptive, so you can be reasonably sure something called “Judgment” will be a judgment.

There is one thing that is obviously missing from the docket page, and that is the transcript.  For that I just called up the court clerk to ask for instructions.  Courts know that their websites aren’t amazing and court clerks are generally pretty friendly.  In this case they happily told me how much the transcript would cost, where to send the check, and what else to include in the envelope.  A few weeks later I had the transcript in my inbox.

Sad face image courtesy of Loubie.

This post originally appeared on the Shapeways blog.

On the heels of last week’s Net Neutrality day of action in the US, today Shapeways is filing formal comments in the United States Federal Communication Commission’s (FCC) net neutrality investigation. Pete’s post from last week explained why we believe that an open internet is key to the success of Shapeways and the Shapeways community. This post will explain exactly what we are telling the FCC in our comments.

Shapeways’ comments do not attempt to address every question raised by the FCC in its request for public comment. We have no doubt that nonprofit organizations working on the front lines of the net neutrality fight in Washington will be filing long responses to those today (speaking of which, if you think it is important to have thoughtful, sophisticated responses to questions raised by the FCC in its open internet proceeding you should consider donating organizations like Public Knowledge, the Open Technology Institute at New America, and Free Press).

Instead, our comments today focus on why an open internet is important to Shapeways. More specifically, they focus on how Shapeways has been able to rely on an open internet since its founding, and how the current investigation undermines that reliance.

There have been a number of rounds to the US net neutrality fight since Shapeways was founded. Setting aside the specifics, each round has moved the FCC toward stronger rules to protect an open internet. No matter where we were in the cycle – rule discussion, rule creation, rule challenge – the FCC was making it clear to companies such as Shapeways that it fundamentally supported the concept of an open internet. The form that support would ultimately take might be in flux, but the underlying support was clear. This support made it clear to ISPs, internet users, and internet companies alike that there would be consequences for undermining the open internet.

The current investigation is the first time since Shapeways’ founding where the FCC is departing from that support so dramatically. The FCC no longer appears to be searching for the most effective way to protect an open internet. Instead, after establishing strong net neutrality rules and having those rules affirmed by the courts, the FCC now appears to be walking away from them. By extension, this is walking away from the open internet.

This turn is incredibly worrying to us here at Shapeways. That is why we participated in last week’s day of action and why we are submitting comments today. If you participated in this investigation last week, thank you. If not, there is still time. The reply comment deadline is not until August 16. For a quick primer on how to write effective comments, read this piece by Gigi Sohn.

Regardless of how you feel about the FCC’s current proposal, we urge you to weigh in during this process. As an internet user, the FCC’s decision will impact you. This is your opportunity to impact that decision. If you have thoughts, comments, or questions, we encourage you to share them below.

This post originally appeared on the Shapeways blog.

Unofficial rendering of a request logo.

My earlier post about the 2017 Creative Commons Summit took stock of the complicated relationship between Creative Commons and the 3D printing community, and the fundamental challenge created by Creative Commons (CC) licenses, which are sometimes meant to be legally binding and sometimes used as non-binding social signals.

Perhaps the most intriguing way to address this challenge was an idea put forward by CC USA’s Meredith Jacob for an approach called Disclaim and Request. The idea is to remove ambiguity around the copyright status of objects by using two symbols: the Creative Commons public domain dedication tool CC0 (that’s the disclaim part) and either a new CC tool or other standard notation to request conditions such as attribution or no derivatives.

A CC REQ logo would clarify that the designer is making a request rather than a legally enforceable demand. In other words, they are only using CC as a social signal.


Because 3D printed works can have both artistic (protected by copyright) and functional (not protected by copyright) elements, they have a complicated relationship with copyright. Between works fully protected by copyright and works that are in no way protected lies a spectrum of works with all kinds of partial copyright protection.

Oftentimes that partial protection would not be enough to prevent a bad actor from copying the core of the object in a way that ignores the conditions of the copyright license. That means a traditional CC license would not end up imposing any enforceable obligations on someone who wanted to avoid the conditions of the license.

However, there could be enough copyright protection to make it hard for a good actor to easily make use of the design without a license. The absence of a clear license would then prevent others from building on the work in a way the creator might support. But there is a constant threat that a conditional license could end up overstating its legal control over the object itself.

In these cases, there is no CC license that can prevent what creators view as bad uses while at the same time avoiding erecting unintentional barriers (in the form of conditions that may baselessly scare away a user) to what creators view as good uses. This is not an ideal outcome.

Additionally, the scope of copyright protection can evolve over time. An object that is beyond the scope of copyright when it is created may be pulled into copyright by subsequent judicial decisions or changes to the law.

A perfect tool to resolve this ambiguity would make it clear that the work is available in the commons without imposing conditions that might either be unenforceable or barriers to good actors.

CC0 is that tool. In this context, using a CC0 license effectively says: I do not think there is anything here that is protected by copyright. However, to the extent that copyright does protect part of this design, I waive those rights.

Affirmatively placing an object in the public domain is the most effective way to clarify the copyright status of the object. While you could use a more traditional CC license (such as a CC BY), the conditions of that license (the BY) assume copyright protection that may not exist. In contrast, CC0 waives all copyright interests without attempting to impose unenforceable conditions if those interests never existed in the first place.


Even when a designer has formally disclaimed any copyright interest with CC0, they may still want to take advantage of the social signals that CC licenses can provide. They might want to ask for attribution, for example, even if they know that request is not legally enforceable.

While a traditional CC license might send those signals, using it only to signal creates all sorts of problems, as I explained in the previous post.

That is where a new CC REQ icon comes in.

Unofficial rendering of a request logo.

CC REQ is meant to communicate two concepts to downstream users:

  1. that the creator does not believe that they have a legally enforceable copyright interest in the work, but to the extent they exist residually they are disclaimed
  2. that future users nevertheless should comply with the social norms that have grown up around various CC licenses

While these messages could theoretically be folded into a single icon, combining CC0 with CC REQ makes it clear that creators may be actively waiving any existing copyright protection — an idea that should not be hidden in legal fine print.

Why Would This Work?

Disclaim and request achieves two important goals. First, it clarifies the copyright status of the covered work. In a world of copyright ambiguity, this clarity can be incredibly valuable. In the long term, it is better to have people occasionally give away niggling bits of copyright protection than to occasionally claim copyright control that does not exist. This is because those niggling bits are unlikely to serve as barriers against bad users, but overclaiming rights can freeze out legitimate uses.

Second, disclaim and request maintains the signal communicated by a CC license without undermining its enforceability, allowing good actors to understand and comply with the wishes of creators without overstating the authority that those creators have to enforce those wishes. It further clarifies the rules for everyone, which is something that CC has traditionally excelled at.

What’s Next?

For now, disclaim and request is just a proposal. Creative Commons does amazing work every day with limited resources, which means that it needs to prioritize which projects to focus on. Even in a world of unlimited resources, there is also an argument to be made that CC REQ complicates instead of clarifies the status of the CC licenses by adding yet another icon to the set.

All of which is to say that it is up to Creative Commons what to do with this idea.

In light of that, we very much appreciate CCs engagement with these challenges thus far. We hope to continue the discussion, which includes discussions with all the communities involved. As those discussions evolve we will do our best to document them here on the blog.

This post originally appeared on the Shapeways blog.


Jane Park at the Creative Commons Global Summit 2017 by Sebastiaan ter Burg CC BY 2.0

The relationship between Creative Commons and the 3D design community is deep and complicated. Last month’s Creative Commons Summit in Toronto provided an opportunity to celebrate the depth and … work on the complications.

Creative Commons was originally conceived with traditional copyright-eligible works like photographs, music, and books in mind, assuming that the works licensed by a Creative Commons (CC) license would clearly be eligible for copyright.  The 3D printing design community has integrated CC licenses from its early days, even though copyright does not always apply as cleanly to 3D designs. This organic and somewhat unexpected pairing has lead to a vibrant culture of sharing and collaboration in the 3D design community. It has also raised a number of surprisingly thorny copyright questions.

Fortunately, at least one proposal presented at the Summit would address some of those questions. We’ll outline the proposal in part two of this post, which can be found here.

How We Got Here

Creative Commons has been part of the 3D printing community for years. Thingiverse’s decision to build Creative Commons licenses into the bones of the site helped bring — and sometimes push — countless designers into a sharing community. It also established sharing as an important norm in the 3D design community.


Like 3D printing itself, copyright and 3D printing don’t always align perfectly. Image: Tony Buser CC BY-SA 2.0.

While the ethos of Creative Commons is in close alignment with the beliefs of many 3D designers, the legal realities do not always fit together as cleanly. Creative Commons is a copyright license, but not all 3D printed objects are eligible for copyright protection. That means that a Creative Commons license might not work as expected when it is attached to some 3D printable designs because it might not actually be legally enforceable. Furthermore, conditions that are easy to apply in a digital world (like attribution) can be somewhat harder in the physical realm.

In 2015, Creative Commons held the first formal explorations of the relationship between 3D printing and CC at its Summit in Seoul. That exploration established the foundation for a more detailed discussion last year. With Jane Park and Sarah Pearson guiding the analysis, last year’s discussion helped frame some of the questions that we attempted to answer at this year’s Summit.

3D Printing and Copyright Have a Complicated Relationship

This blog post would be a simple story of two great communities working together except for one challenge: copyright does not apply cleanly in the world of 3D printing. As a result, in the context of 3D printing, licenses based on copyright (such as CC licenses) are not always what they appear. (Pages 4-12 of this white paper explore when copyright does and does not attach to 3D printed files and objects.)


The traffic light on the left creates a legally enforceable obligation to stop at the intersection. The traffic light on the right can only send a social signal to stop doing whatever it is you are doing. Credits: Left image grendelkhan CC BY-SA 2.0. Right image Becky Stern CC BY-SA 2.0. Combined image offered under CC BY-SA 2.0.

Sometimes they exist as legally enforceable licenses. Other times they are merely social signals, requesting that users follow rules that cannot be enforced in court. Oftentimes designers and users are not clear which of those roles apply to any specific model being licensed.

This complicated relationship can create at least two categories of problems if a creator adds a CC license (for example, a CC BY-SA license that requires users to give attribution to the creator and to relicense any adaptations under a similarly open terms) to a model that is not protected by copyright.

Category 1: Damned if you do

First, applying a CC license to a work not protected by copyright shrinks the commons.

By default, a work that is not protected by copyright is in the public domain, available for anyone to do whatever they want with it. No license is required – that’s what the public domain means.


Even if they are not legally enforceable, CC conditions can create barriers to use. Credit: Teresa Alexander-Arab CC BY-ND 2.0.

But some users who want to make use of the public domain model may be prevented from doing so because they do not want to have to comply with the share-alike requirements of the license incorrectly applied to it. Fortunately, since the model is not protected by copyright, that share-alike requirement is not legally enforceable. It is a request masquerading as a demand. Unfortunately, that masquerade may be convincing enough to scare some users away from making completely legitimate uses of the work.

Second, incorrectly using a license can disillusion creators.

This happens when the creator incorrectly believes that the licenses are enforceable for works that are not protected by copyright. A creator could use a CC license to release models online for years. Only after trying to enforce the license would they discover that the condition of attribution baked into that license is unenforceable.

Category 2: Damned if you don’t

Unfortunately, there is also danger in omitting a license when a designer believes that the work is not protected by copyright at all.

If the designer is wrong and the design (or part of the design) is actually protected by copyright, the lack of a CC license will prevent future users from building upon it. This mistake is easier to make than it might appear.  Sometimes only small, easily overlooked, parts of models are protected by copyright. Other times copyright law evolves, extending protection to works that were in the public domain when they were created. That means that a creator could be correct about the copyright status of the work when it is created, but wrong by the time a user comes along looking to use it.

Like I said, complicated.

Summit Goals

While Creative Commons ultimately decides how (if at all) it wants to engage with these complicated questions as an organization, the purpose of the sessions at the Summit was to define factors to consider and possibly propose options. Presentations by re:3D, MakerBot (as home to Thingiverse), Aleph Objects, the NIH 3D Print Exchange, and Creative Commons US helped describe current community expectations and propose possible paths forward.

These presentations, especially the one by CC USA’s Meredith Jacob, helped to flag a number of considerations that the community and CC need to keep in mind when trying to address the concerns that prompted the session.

Licenses First, Social Signals Second


Judges need to be able to enforce CC licenses as legally binding documents. Credit: Dark Dwarf CC BY-ND 2.0

CC licenses serve a legal purpose (as a binding legal agreement) and a social purpose (as a social signal to users about how a creator intends for a work to be used). Both of these purposes are important, although they can sometimes work to undermine each other. The key to the long term viability of Creative Commons is to make sure that the social use does not undermine the enforceability of the legal one.

If CC licenses become mere social signals, the legal foundation of Creative Commons begins to erode. That is because courts could decide that creators did not really mean to make their social signal legally enforceable, or that users cannot reasonably be expected to understand that they entered into a real, legally binding agreement when they used a work that was CC-licensed.

That makes it important to ensure that in most cases CC licenses are used in ways that are legally enforceable — as licenses for copyrights that actually exist. Encouraging people to put CC licenses on every 3D printable thing would result in many CC licenses being used in works that are not eligible for copyright protection. In other words, it would result in many CC licenses being used only as social signals.  Use primarily as a social signal undermines the enforceability of CC licenses because it undermines the argument that CC licenses are intended to be legally enforceable promises.

Growing the Commons vs. Empowering Sharers


You need to be able to find things in the commons in order to use them. Credit: Paul Keller CC BY 2.0

There is a distinction between a legal commons and a findable commons. The legal commons is made up of works in the public domain (i.e. works not protected by copyright) and works that are permissively licensed with Creative Commons licenses. These are all works that are legally available for people to remix, build upon, and improve without risk.

The findable commons is a smaller subset of the legal commons. It includes works that can legally be shared and found by people who want to remix, build upon, and improve them. The mechanical door opener in your basement or the Renaissance painting in your attic may be part of the legal commons because they are not protected by copyright. But they are not part of the findable commons because other people do not know that they exist.

Convincing people to contribute works already in the legal commons to the findable commons is not a legal challenge. It is a social challenge. It involves making potential contributors comfortable with the idea of contributing to a collective pool of works available to everyone.

The Creative Commons licenses manage to grow the legal commons through the terms of the licenses and to grow the findable commons by allowing people to retain some control over their works. This partial control allows someone to ease into the idea of sharing without having to choose between being fully open or fully closed. Someone who is uncomfortable with the idea of unconditionally contributing their work to the commons might feel more comfortable contributing under the condition that any future users give them credit or that their work is not modified.

This can be true even for people creating works that are in the public domain (and therefore the legal commons) from the start. If they do not realize that the CC license cannot be enforced, the CC license terms may still encourage them to contribute their work that is in the legal commons into the findable commons by creating an illusion of control.

This creates a tension. Educating and empowering users so they understand when a CC license is not enforceable (and therefore drawing attention to the illusion) could also make them less reluctant to contribute to the findable commons. The win for user education could create at least a short-term loss for the commons. While user education is likely the higher good, it is important to recognize the potential short-term cost of its expansion.

Education Helps

At the core of all of these questions is the issue of education. There are 3D printable works that are protected by copyright. There are 3D printable works that are not protected by copyright. If designers and users could learn how to easily distinguish between the two and apply licenses in a legally accurate manner everything would be easy and this blog post would be a lot shorter.

Unfortunately, drawing this distinction can be complicated for specialists (and the U.S. Supreme Court keeps changing the rules). That makes it unreasonable to expect nonspecialists to fully understand the scope of copyright protection and unrealistic to think that we can educate our way out of this problem.

That being said, a better understanding of these issues could go a long way. Creative Commons may be well positioned to help create tools, disclaimers, and other mechanisms to help designers, platforms, and users understand what happens to the Creative Commons licenses as they drift further away from their traditional areas of coverage.

Part 2

So many questions and challenges!  Fortunately, part 2 of this blog post discusses a concrete proposal that helps address some of them.

This post originally appeared in Volume 56 of Make Magazine under the headline How to Know if the FDA Wants to Regulate  Your Prototype.  My contract required me to give them 3 months of exclusivity. With that up, I’m posting it here.

It’s all good fun to 3D print a DNA extraction centrifuge, make a homebrew heart rate monitor, or build an Arduino-powered bioreactor. But as you delve deeper into the world of biohacking, you may eventually wonder if (or when) the government will take an interest in what you’re doing.

There are lots of good reasons for government regulation here. When you take a drug, get a device implanted in you, or have a medical test done, it can be comforting to know that someone is ensuring that the drug isn’t poison, the device won’t explode inside you, and the medical test won’t insist that your ears are falling off (assuming that your ears aren’t actually falling off).

The Spirit of ‘76

For all of their benefits, regulations can also prevent good things from happening. Processes can be expensive to comply with and testing can take time. Small-scale participants can have trouble identifying rules relevant to them, let alone comply with them. That makes regulation, like so many things in life, a balance between safety and doing new things.

Unfortunately for DIY biohackers, the last time Congress passed a major medical device law was in 1976. Back then, only large companies had the ability to manufacture medical devices. Congress didn’t imagine that people would be making them at home. It certainly didn’t imagine that the at-home inventors would be able to distribute them to the world over the internet — and possibly do so without any commercial infrastructure.

Nonetheless, the regulatory structure of 1976 remains in force today. Devices are sorted into three tiers based on their intended use. Class I devices are regulated under “general controls,” which are generally light-touch rules designed to handle lower risk devices. Class II devices are subject to special controls because they are potentially more dangerous. Class III devices require premarket approval before being distributed. (We’re just setting the scene, but if you have specific questions about the three-tier system or about your specific device, you should speak with a lawyer.)

General Wellness vs. Medical

For our purposes, the question is not how medical devices are regulated, but rather when your project becomes a medical device that the FDA wants to regulate. The difference is between a “general wellness” device, which isn’t regulated, and a “medical” device, which is. Distinguishing between them involves two major factors.

The first is if the device is geared towards “general wellness.” The more the device is oriented towards general wellness, the less likely it is to be regulated by the FDA. General wellness is a focus on overall health instead of specific diseases. Think about jogging — it’s a healthy lifestyle choice that impacts a range of diseases, heart disease among them. But jogging isn’t a specific treatment for heart disease in the same way that prescription medication is. General wellness devices tend to measure things like fitness, sleep, concentration, heart rates, or physical impact in order to help you live a healthier lifestyle.

The second factor is whether the device poses a low risk to safety. Not surprisingly, if it doesn’t pose a safety risk, the FDA is more likely to classify it as a general wellness device. Conversely, if a device could pose a significant risk — even due to misuse — the FDA is likely to want to take a closer look. Helpfully, the FDA provides four characteristics to look for in a device, any one of which would suggest that the device poses a higher-than-low risk to safety:

  • Is the product invasive (does it penetrate the skin)?
  • Is the product implanted?
  • Does the product use a technology that is itself risky if not regulated (think medical lasers or radioactive elements)?
  • Are similar existing products regulated?

That last point is important. If you are working on a device and all of the established commercial devices in the space are regulated, the FDA will probably take a keen interest in your device as well.

What’s the takeaway here? Keep hacking and building new things. But as you start building devices that are geared toward treating specific diseases or that can do real harm if they malfunction, keep in mind that the FDA might be interested. At that point it is probably time to put down this magazine and find yourself a lawyer.

Learn More

The FDA recently published guidance to help distinguish between medical devices and wellness devices.

Anna Wexler takes a deep dive into the regulations surrounding brain stimulation devices currently on the market (there’s also a longer version that’s behind a paywall). Below is a presentation she gave on the topic:

The challenges posed by DIYers entering the modern medical space has not gone unnoticed by the medical establishment. Doctor Jeremy A. Greene outlines the various concerns with DIY medical devices in the New England Journal of Medicine.

The FDA itself walks through how it approaches some of these questions in section II. B. of this workshop paper on neurodiagnostic devices.

The FDA also provides information about how it regulates medical devices here, here, and here.