[edit 2/20/16: After getting more specific information about Just 3D Print’s legal arguments I addressed them point by point here.]
For better or worse, I need to open this post with a disclaimer. This post comments on a dispute on thingiverse that involves thousands of models. It is not legal advice, and the legal analysis for any individual model may turn on facts specific to that model. In light of that, if your models are directly impacted by this dispute you should consider talking to a lawyer before taking any specific action. OK, on to the post.
This post is about a dispute on thingiverse first raised (to my knowledge) by thingiverse user loubie. Here’s her post, and I recommend taking a look before reading on. It is short and gives all of the context, although I’ll try and summarize below. The dispute turns in part on what I interpret to be a misunderstanding of how copyright in CAD files works. Since I’ve written a bit about this sort of thing with an emphasis on the limits of copyrightability in CAD files it seemed worth jumping in. The tl;dr version is that right now it is very hard for me to see the justifications offered by the alleged infringer as being valid.
Loubie has alleged that ebay seller just3Dprint pulled around 2 thousand models and associated images by multiple designers from thingiverse to sell on an ebay store. Just3Dprint is allegedly doing this without permission of the designers and, at least in some cases, in violation of the terms of various CC licenses on the models. [edit 2/20/16: I have confirmed from Just 3D Print that they are using the models as described and that the arguments being put forward are theirs.] When Loubie reached out to just3Dprint she received a response that deserves to be quoted in its entirety:
“When you uploaded your items onto Thingiverse for mass distribution, you lost all rights to them whatsoever. They entered what is known in the legal world as "public domain”.
The single exception to public domain rules are “original works of art”.
No court in the USA has yet ruled a CAD model an original work or art.
Therefore, you have no right to exclude others from utilizing the CAD models you have uploaded.
Furthermore, if in the future we do get a precedent in the USA for establishing CAD models as “original works of art”, we would still likely be just fine as we are not re-selling your CAD models, but rather “transformative” adaptions of them in the form of 3D printed objects.
P.S. When you created these CAD files, did you really want to limit the amount of people who could enjoy them to the 0.01% of the USA with a 3D Printer? 100% of America can purchase the items from us at a reasonable cost and enjoy them-creating made in the USA jobs in the process as well. Furthermore, if you hate the idea of people profiteering from your work, you may want to take it up with Makerbot/Stratasys who only hosts Thingiverse for AD revenue, to sell more 3D printers.“
For the purposes of this blog post and to analyze the issue, I’m going to assume that all of these allegations are true and that the models and images in question are licensed under a variety of CC licenses. Let’s break down why this response is wrong.
Copyright in CAD
I’ll admit that this case has given me a bit of pause in how I talk about CAD and copyright. In at least two whitepapers on the topic (and probably other blog posts and speaking opportunities), I have tended to focus on the “legally interesting” cases of a CAD file that represents an object that is not itself eligible for copyright protection (think a purely functional object like a screw or mechanical part). I have done this because cases where the object being modeled is categorically eligible for copyright protection (think a statue or other artistic work) are much easier to deal with. The model is protected by copyright, in its CAD form or any other tangible form. Case more or less closed.
To say it slightly differently, in most cases questions about an independent copyright in a CAD file is only interesting if there isn’t already a copyright in the model itself. If the subject of the model itself is protected by copyright, the fact that the model is depicted in a CAD file does not remove copyright protection. When I write about CAD copyright, I’m usually doing it in the context of using copyright in the CAD file as a fallback when copyright in the model itself isn’t available. In those cases I am highly skeptical of essentially adding copyright protection where it does not usually exist merely because it is is depicted in a CAD file.
But for many of the models featured on the ebay shop, that skepticism doesn’t matter. The underlying model is protected by copyright. Which means the model is protected by copyright even if it is contained in a CAD file, the same way that this blog post is protected by copyright even though it lives as some HTML in your browser.
If the Model is Protected by Copyright, a Copyright License is Binding
Admittedly, I’ve written about how Creative Commons (CC) licenses can sometimes be complicated in some 3D printing contexts. However, that complication is limited to challenges with giving attribution to a physically printed object. What is not complicated is if CC licenses can be applied to 3D printable objects, or if their terms are enforceable. That answer is clearly yes if the model itself is protected by copyright. To repeat, CC licenses can be applied to 3D models that are protected by copyright.
Furthermore, attribution is easy if you are selling a model on a website. You can just provide a name and link to the designer in the description. That makes my concern much less relevant in this context. The non-commercial restriction is also as valid in the 3D printing context as it is in any other.
What does this mean? If you have a copyrightable model and someone is using it in violation of the license you attached to it, that someone is likely infringing on your copyright (unless the use is protected by something like fair use). If a seller on eBay is infringing on your copyright, you can report the violation to eBay. eBay has a policy that a repeat infringer will also be removed from their marketplace.
What About the Photographs?
The above analysis mostly focused on models and files. However, the allegations include that just3Dprint took photographs of models from thingiverse pages without permission. Regardless of the copyright status of the models or the files, in most cases the photographs will be protected by copyright. I’ve always thought that it was a bit unclear if the CC license on a thingiverse page applies to the photos as well as the model. However, there are basically two choices - either the photo is covered by the CC license or it is not covered by the CC license. If it is covered, the license means that a random third party can use the photo as long as they comply with the terms. If it is not covered, a random third party cannot use the photo at all (again, subject to fair use) because it is not licensed at all to them. Neither of those is permission for a random third party to use the photo as they see fit.
Two More Things
License to Thingiverse is not a license to everyone
In the response, just3Dprint suggests that uploading the model to thingiverse somehow puts the model in the public domain and that the uploader loses all rights to the model. This is false. For one thing, if it was true, the CC license wouldn’t matter - things in the public domain are free from copyright protection and therefore licenses don’t matter.
Printing a 3D model is not usually going to qualify as a transformative use
just3Dprint claims that even if the models were protected by copyright, printing and selling them would not violate copyright because doing so is a “transformative adaptation.” Honestly, I have no idea what this means. Transformation is often part of the first prong of a fair use analysis (good overview of how this works here) and, to simplify things almost beyond recognition, often focuses on adding something new to the work (a viewpoint, a context, or things like that). While there are always interesting discussions to be had around transformation and fair use, it is hard to imagine that simply downloading and printing 3D models without any additional context would qualify as transformative in a fair use analysis.
To summarize: assuming that the facts as repoted by loubie are accurate, I think it is safe to say that I’m skeptical of just3Dprint’s claims. There are situations where just3Dprint may not need the permission of a designer to reprint and sell a model uploaded to thingiverse, but none of the justifications offered feel legitimate to me or seem to address those situations. I may be wrong, or convinced otherwise, and new information may come out. If any of that happens, I’ll do my best to update this post.