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The world of 3D printing was in a tizzy last week discussing a DMCA takedown notice received by the website Thingiverse, a website that allows users to share and discuss their 3D printed designs. It was something of a milestone because it was the first DMCA notice received by the site.
The controversy involved a design for a 3D printed Penrose triangle. Although it is still very much an open question as to whether or not the design in question was even eligible for copyright protection, the story ended well. The person who issued the DMCA notice retracted his complaint and licensed his design under a creative commons license.
One benefit to this entire episode is that it has provided an opportunity for the 3D printing community to begin discussing the role that intellectual property (IP) will play in the evolution of 3D printing. This is a fantastic thing, and it kicks off a process that will likely go on for years. As I have written before, existing IP law is not necessarily a very good fit for what is going on in the 3D printing community. I therefore wanted to offer these ideas to help to begin to frame the discussion.
Many of the things on Thingiverse are not protected by any type of IP. This is arguably true for most of the things on Thingiverse. The things on Thingiverse are not music, they are not movies, and they are not books. They are useful objects that are by and large outside the scope of what is eligible for copyright protection. That means that they cannot be protected by copyright. Some of the objects (if they are truly novel) might be protectable by patent, but the creators have generally not elected to get patent protection.
That means that many of the assumptions that have been baked into the discussion about creation and ownership online simply do not apply in Thingiverse. For many objects on Thingiverse, there is no legally protectable ownership interest. This can be true for the objects, as well as the actual design files. While not all objects on Thingiverse are outside the scope of traditional IP (which is why all of this gets very interesting), enough of those objects are that relying on traditional IP structures will become very problematic very quickly.
You cannot license what you do not have. This is a legal truism. I may be able to announce that I freely license my copyright ownership in the Brooklyn Bridge under a creative commons license, but that does not mean very much because I do not have any copyright ownership in the Brooklyn Bridge. Furthermore, asking me for my permission to license the Brooklyn Bridge would be a waste of everyone’s time.
This does not mean that the creative commons licenses on Thingiverse do not play an important role. First, the CC licenses make an important cultural statement: I am contributing to the community under these terms that allow everyone to share my design. Even if you do not have legal rights, it is a signal to others in the community that they can use your design freely. Second, as mentioned above, some items in Thingiverse will be protectable under copyright. Using a creative commons license clears up any legal ambiguity surrounding what is and what is not protected.
Copyright infringement accusations have real consequences. Statutory damages (read: you do not have to prove any actual harm to receive them) for copyright infringement can run up to $150,000 per infringement. Threatening someone with a copyright infringement lawsuit imposes a very real threat of financial disaster.
On the flip side, filing a DMCA takedown notice in bad faith can lead to sanctions from a court. If your design is not eligible for copyright protection, a court could punish a demand for removal under the DMCA.
For all of these reasons, the 3D printing community should not be looking to IP law for solutions. Any number of industries have prevented themselves from prospering online by focusing on IP law instead of innovation. The 3D printing community needs to begin to find its own appropriate ways to recognize and reward innovators.
This is possible. For example, look to the fashion industry. Most clothing is not eligible for copyright protection because it is a useful article. However, fashion is a vibrant, creative, and profitable industry. That is, in part, because the fashion industry has evolved a way to identify and reward true innovation. Because there is not a strict legal definition of what is a “new” idea and who “owns” creativity, the industry is free to evolve its understanding of what is truly revolutionary. Perhaps more importantly, creators spend their time being creative enough to stand out from the pack, not litigating copyright infringement cases.
Thingiverse already takes some steps in this direction by showing “other people’s copies” on a design page, and allowing tags to track the development of ideas. Perhaps a useful additional feature would be to create an “inspired by/responding to” field. This field would allow contributors to link to other Thingiverse items that helped motivate them to construct their creation. It would not be legally binding – there is no suggestion that being inspired by or responding to a design requires a license. Instead it would merely be a way to track the creative discussion as it grows within the community.
The "inspired by/responding to” field would also quickly illustrate how much ideas rely on the creations that come before them. Creating a thick relational web would eventually be a way to determine who really was creating innovative designs that motivate others to innovate further.
As I mentioned above, this is the beginning of a long discussion about ideas and 3D printing. Hopefully the community can capitalize on it and help to create its own internal way to identify and reward creators without turning to lawsuits and ill-fitting IP laws.