[edit 7/22/17: Believe it or not, there is a third chapter to this story and it introduces defamation of all things.]
As the headline suggests, this is a second blog post that continues on this post. All of the disclaimers and facts from that post apply, including that this is a general analysis of issues of copyright and 3D models which may or may not apply to any specific model.
The short summary is that a company called Just 3D Print has downloaded a number of files from thingiverse and is selling them on eBay in violation of the Creative Commons (CC) licenses applies to those files. When contacted by the designers, Just 3D Print replies that does not need permission for reasons discussed in the previous post and expanded upon below which boil down to a claim that they are in the public domain.
I have now contacted Just 3D Print and confirmed that the behavior and justifications attributed to them in fact come from them. After reading their lengthly response in the thingiverse comments, I asked them for additional comment. The rest of this post is my attempt to contextualize their justifications. As I explained to Just 3D Print, while unfortunate, in some ways I view this dispute as beneficial. It takes a number of somewhat theoretical discussions and gives them concrete facts. If nothing else, that may make the discussion somewhat easier to understand.
I’m going to start with the specific justifications Just 3D Print made to me in their email response (which they sent with a proviso that I was free to share it) and then include one or two that they only included in the thingiverse comments. I’ll quote or summarize in a way that I hope makes this reasonably understandable, so keep an eye out for quote marks to know where the language itself comes from.
1. “No United States court has ruled a Computer-Assisted-Design file, or a
derivative thereof, as inherently copyrightable (unlike photographs,
literature, etc.).”
This is absolutely true. As I wrote yesterday, in many if not most cases involved in this dispute, it is also largely irrelevant. The copyrightability of CAD files is highly important if the object represented in the file is not protected by copyright or if the file was not created by the person who created the object represented in that file (i.e. if it was scanned or modeled based on an existing object). Sculptural works - that is, physical non-functional items - are protected by copyright law. See 17 U.S.C. (a)(5). Many of the objects in dispute will qualify as sculptural works. They do not lose their protection simply because they are represented in a CAD file. If that was the case the act of scanning any sculpture would automatically put it into the pubic domain.
2. “The essence of a CAD file is that it is a set of instructions for producing a physical item. There is a rich history of United States IP law, that goes back to before the United States was even a country, regarding physical items. This history says that physical items are not protect-able by their owners/inventors unless they have a patent, are sourced from a pre-existing copyright, or are a “work of art”/copyrightable. 90%+ of all products on sites like Thingiverse.com clearly do not fall into one of these three buckets- which means anyone and everyone can produce said products for any legal purpose.“
This mixes a few things, none of which support the position that everything on thingiverse is in the public domain. As for the “set of instructions” argument, it goes back to the copyrightability of CAD files again. I’m actually in the middle of a longer paper on this topic, but for now let’s just say that even if a CAD file is just a non-copyrightable set of instructions (something I believe to be largely true), everything in my response to 1 above still holds. That is, many of the non-functional objects represented in the files are still protected by copyright.
As for the physical items, I believe that this conflates “physical items” with “functional items.” Functional items are in fact outside of the scope of copyright protection. As a result, if they are not protected by patent they are largely in the public domain. However, not all physical items are functional items. Many sculptural or decorative items are well within the scope of copyright protection and have been for some time. Again, see 17 U.S.C. (a)(5).
3. “In order for individuals to keep a patent, copyright, or most other
IP valid, they have to take reasonable steps to prevent other
individuals from infringing on their IP. Even if one assumes that, in
the future, a court finds CAD files/derivatives thereof copyrightable
(which is highly unlikely), individuals who post said designs online for
anyone and everyone to download are doing the exact opposite of taking
reasonable steps to protect their IP.”
Let’s set aside the question of if you need to take reasonable steps to protect your IP rights in order to maintain them. In the vast majority of cases this is not the case, but I can think of enough lawyerly caveats that I want to avoid the digression.
Fortunately, I can dodge that question entirely because thingiverse designers are not posting “designs online for anyone and everyone to download.” Well, at last that isn’t all they are doing. Thingiverse designers are making their works available to the public explicitly conditioned on a license. While the terms of the license may be different, as a legal tool it is identical to what governs every movie available for streaming on netflix. If, for the sake of argument, it is required to take steps to protect your copyright in order to maintain it, distributing works with a license strikes me as a completely reasonable step to protect your copyright.
4. “Some claim that the Creative Commons license protects designers who upload their CAD creations online. This is false. The CC license directly contradicts existing United States IP law and has never been challenged in a United States Court (in the entire world, it has been involved in 10 cases-https://wiki.creativecommons.org/wiki/Case_Law- and in these cases it was either not even discussed or existing IP law/precedent was used instead of the CC license).”
I’ve never read an argument as to why CC licenses “directly contradict[] existing United States IP law” so I don’t really understand where it is coming from. If someone has a link I’m happy to add it here. In fact, CC licenses were explicitly designed to use existing US IP law to make sharing easier and do a pretty solid job of that. If the model is protectable by copyright (see 1 above), a CC license is as valid as any other.
5. This point, which I am summarizing from a long paragraph, is essentially that 3D printing has grown in large part because of the expiration of patents on the printers themselves, and that somehow copyright on 3D models would impact this. In the spirit of fairness I’m going to quote the point in its entirety now:
The biggest reason that 3D printing, and the online design community that supplies CAD models for 3D printing, has taken off in the incredible way it has these last few years is because the main/most fundamental patents relating to 3D printers expired in the early 2000s and a wealth of innovation poured into the space with 500+ companies producing cheap, consumer friendly 3D printers instead of five companies producing $20,000+ printers. Imagine a world where the patent holders claimed that the physical innovations they came up with, or the computer files used to create said items, were “works of art”/copyrightable. In this world, 3D printers would not be widely available to the public until 2050 or later. If this was true, what is to stop other manufacturers from also claiming their products are “works of art”/copyrightable? New drugs, technologies, and all physical products would be granted a government-protected monopoly that would extend to the current age of Mickey Mouse. Considering that we, and online designers, are only partaking of the 3D printing renaissance because of the United States reasonable policy of allowing innovations to be open to the public after a patent expires, it is incredibly ironic that members of this same community would spit on this tradition in favor of extending an extremely long government monopoly on all physical products. So, in the best interest of the community, we hope that the public, and courts, will agree with us and prevent CAD models from being inherently copyrightable-or the consequences will be incredibly severe.
I totally agree that a big part of the explosion of 3D printing has to do with the expiration of patents on 3D printers themselves. I have no idea why copyright protecting individual 3D models has is impacted by that observation one way or the other. Again, if someone can flesh it out I’m happy to link it here.
6. “We have found that the vast majority of designers who post their designs to sites like Thingiverse.com do not care about their monetization (after all, in uploading them to Thingiverse they are granting the site’s owner/public traded Israeli company Stratasys, Inc. a license to do what they will with the design), but would like to be credited/linked whenever the design is used. We, and most others, are happy to do this. The only issue is that eBay, Amazon, Etsy, etc. block us from putting links in our listings to external sites (with select few exceptions). We are currently working with eBay, others to see if this can be changed. Until such a time, all we can do is have a plain text reference.“
This does not appear to be the response that they gave designers who contacted them about crediting the design in compliance with the license. If they are now complying with the BY provision of the CC license, that’s a great thing. However, if the CC license also has a non-commercial restriction then credit alone isn’t enough to comply. They could certainly get an additional license to sell the model commercially, but that license is not implied simply by putting the model up on thingiverse.
7. The next three points are drawn from Just 3D Print’s response in thingiverse comments. I’m just going to summarize them because you can read the entire text here. The first point is that this is only coming to light because a competitor emailed designers to give them a heads up about Just 3D Print’s behavior.
I don’t see how that point is relevant at all. If Just 3D Print is violating the copyright of designers, the fact that the designer did not know about it until they were tipped off does not change the infringement. The fact that other parties may be infringing in similar ways is also irrelevant. Designers are free to pick and choose who to go after for infringement.
8. I can quote this one because it is short: “Yes, all photographs are copyrighted by their creators, but in order to defend a picture/tell people not to use it, it must be registered with the U.S. copyright office. “
This is false. Helpfully, the US Copyright Office has a FAQ question that is exactly on point. While you may need to register your copyright in order to bring an infringement lawsuit, your copyright can still be infringed prior to registration. Copying a copyright-protected photo outside of the scope of a license (absent fair use) is going to infringe upon the copyright in the photo regardless of its registration status. In other words, you can tell people not to use your photos without registering them. (This actually creates a huge issue with what are know as “orphan works,” but boy if you think I’m going to make this post any longer by writing about that you have another thing coming.)
9. To summarize the last point I’ll address in this post, thingiverse violates the noncommercial restrictions on the licenses so the licenses are invalid.
Two reasons that this is wrong. First, thingiverse is not bound by the terms of the CC licenses because designers have a separate agreement with thingiverse. When you sign up for a thingiverse account you agree to terms and conditions, and those terms and conditions govern how thingiverse can use your models. There is nothing improper about having different licenses for the same work. To go back to the example I used yesterday, the license that allows HBO to stream Mad Max to its subscribers is very different from the license that allows me as a subscriber to view Mad Max.
Second, the fact that someone else is violating a license generally does not give everyone else permission to violate the license.
If you made it this far, thank you I guess? I’m bothering to write this because as 3D printing and design grows I think it is important for everyone to have a strong understanding of what is - and is not - protected by various types of copyright. Hopefully it is of some use to some people. As I mentioned yesterday, I’ll do my best to update this post or add a new post as more info becomes public. Finally, if you think I missed something or got something wrong, don’t be shy. There are public and private ways to get in touch on my about page. Send me a link to all of the reasons you think I am dumb.
Image: Sad Face! IMPORTANT NOTICE by thingiverse user loubie. Since this photo is licensed under a CC-BY license, including this credit allows me to reproduce this image without violating loubie’s copyright. Since the photo was offered under a CC-BY license on thingiverse, it also means that I didn’t need to ask for additional permission to use it because the license itself grants me permission. update: Richard Horne called me out (nicely) on twitter about my assumption that the CC license on a thingiverse page extends to the photo. I do think that there is a bit of ambiguity around the relationship between the two (setting aside any fair use arguments I might have in this specific case), but have to concede that his reading is probably better. I reached out to Loubie on twitter and she graciously granted me permission to use the image here.