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[liberationtech] [tt] Wired: Clive Thompson on 3-D Printing's Legal Morass

Eugen Leitl eugen at leitl.org
Fri Jan 25 06:25:30 PST 2013


----- Forwarded message from Frank Forman <checker at panix.com> -----

From: Frank Forman <checker at panix.com>
Date: Fri, 25 Jan 2013 02:07:01 +0000 (GMT)
To: Transhuman Tech <tt at postbiota.org>
Subject: [tt] Wired: Clive Thompson on 3-D Printing's Legal Morass

Clive Thompson on 3-D Printing's Legal Morass
http://www.wired.com/design/2012/05/3-d-printing-patent-law/
05.30.12

Last winter, Thomas Valenty bought a MakerBot--an inexpensive 3-D printer 
that lets you quickly create plastic objects. His brother had some Imperial 
Guards from the tabletop game Warhammer, so Valenty decided to design a 
couple of his own Warhammer-style figurines: a two-legged war mecha and a 
tank.

He tweaked the designs for a week until he was happy. "I put a lot of work 
into them," he says. Then he posted the files for free downloading on 
Thingiverse, a site that lets you share instructions for printing 3-D 
objects. Soon other fans were outputting their own copies.

Until the lawyers showed up.

Games Workshop, the UK-based firm that makes Warhammer, noticed Valenty's 
work and sent Thingiverse a takedown notice, citing the Digital Millennium 
Copyright Act. Thingiverse removed the files, and Valenty suddenly became an 
unwilling combatant in the next digital war: the fight over copying physical 
objects.

"The DMCA knocked the wind out of me," he wrote in an e-mail to me. "I 
haven't uploaded many of my printable models since it happened."

When I first heard about 3-D printers, I figured the trend wouldn't go 
mainstream for decades, if ever. Oops. Companies now offer 3-D printers for 
just over $1,000, and prices are dropping rapidly.

Observers predict that in a few years we'll see printers that integrate 
scanning capability--so your kid can toss in a Warhammer figurine, hit Copy, 
and get a new one. The machine will become a photocopier of stuff.

This has all the makings of an epic and surreal legal battle. You thought 
Hollywood and record labels were powerful lobbyists, crushing Napster and 
suing file-sharers? Wait until you see what the manufacturing industry can 
do. The American Chamber of Commerce is the single largest lobbyist on 
Capitol Hill, spending $60 million a year.
Valenty suddenly became an unwilling combatant in the next digital war: the 
fight over copying physical objects

"Printing in 3-D is a disruptive technology that raises a lot of 
intellectual property issues," says Michael Weinberg, a senior staff 
attorney with Public Knowledge, a group that advocates for consumers' 
digital rights.

But there's one big difference in this clash: The legal situation might 
actually favor the amateurs.

That's because, as Weinberg points out, disputes over copies of physical 
objects are often fought using patent law, which is far less strict than 
copyright. For example, patents last only 20 years, which means many cool 
everyday objects (Lego bricks!) are long out of patent. What's more, patent 
law generally governs only a complete assembled product, so creating 
replacement parts--a thriving pastime among hobbyists--is probably legal.

What 3-D printing hobbyists mostly have to watch out for, Weinberg argues, 
is copying artistic patterns or designs on an object. That violates 
copyright. But if you stick to reproducing or modeling the basic physical 
nature of something--particularly if you're rejiggering a physical concept 
into a new form--you're probably safe. (Indeed, Weinberg isn't even sure 
Valenty infringed on Warhammer's copyrighted designs, because Games Workshop 
is accusing him of creating figurines in the style of the game, and you 
can't copyright style.)

So really, the longer-term danger here is that manufacturers will decide the 
laws aren't powerful enough. Once kids start merrily copying toys, 
manufacturers will push to hobble 3-D printing with laws similar to the Stop 
Online Piracy Act. "You'll have people going to Washington and saying we 
need new rights," Weinberg frets. Imagine laws that keep 3-D printers from 
outputting anything but objects "authorized" by megacorporations--DRM for 
the physical world. To stave this off, Weinberg is trying to educate 
legislators now.

I hope he's successful. After all, 3-D printers aren't just about copying. 
They're a powerful new tool for experimenting with the design of the 
physical world, for thinking, for generating new culture, for stretching our 
imaginations.

Email: clive at clivethompson.net.

115 COMMENTS

Casey Garske
The main takeaway here is that it's cheaper to buy a 3d printer than buy an 
Imperial Guard army from Games Workshop.

Bobbi Bambino
Time to use your 3-D printer to make more lawyers. NO STOP BAD IDEA!!

Jim Snider
If the designs were original, what Games Workshop did was an actionable 
offense. You cannot fire off DMCA takedown notices if you don't own the 
rights to the material you're claiming is infringed. What this guy should do 
is sue Games Workshop. Of course, if they're in another country that might 
not be easy.

John Ohno
One does not perform an IP lawsuit because an IP lawsuit is legitimate; one 
performs an IP lawsuit when one believes one can prevent competition by 
being better able to pay for legal fees. IP law in practice is the corporate 
equivalent of drinking an opponent under the table.

KhanneaSuntzu
Ah so I gather the miniatures now become EVEN MORE expensive as they will 
also have to retch up legal costs?

STUCARIUS
One of the most truthful statements I have read on BOLS. Everything from the 
background to every single game and miniature GW makes is derivative. Being 
a customer of GW is literally becoming unethical even unAmerican

Michael Paulus
Must be careful who you try to pick on.
http://www.audioholics.com/new...

Jeffrey Nagy
They have a US manufacturing and retail presence, both are part of that 
company and thus open the whole up to litigation in this jurisdiction.

Scott
"You'll have people going to Washington and saying we need new rights"
You don't head to the government to get new rights.  You go to the 
government to restrict rights.  Government is coercion.  Always has been.

Evan85
Unless you're a corporation, then you head to the government for new rights 
to harass members of the public.

Pmbster

Actually both sides of the fence are covered in the enacting of new laws, 
Scott. When Big Content or whomever gets new rights to protect their 
interests those rights restrict others. Sometimes these rights are 
applicable, other times they are not.

Because in many people's minds (including mine), corporations have too much 
control, they wind up with too many of the "rights" they demand restricting 
the "rights" of others (the general public, us).

Saying some of these laws are "restrictions" is merely declaring which side 
of the fence you are on without bothering to acknowledge that the other side 
of the fence actually exists. I believe we *are* in fact having too many 
restrictions placed upon us, but I also believe it is because these 
corporations or entities are basically literally *buying* too many rights 
unto themselves, for the simple reason that they can.

The problem in my opinion is that they have too much power on their side. 
Power that is supposed to be *ours*. At best, if there is supposed to be 
some kind of a balance to these things, that balance has been undone.
stemloop
Human rights are indeed self-evident; yet they still need to be enshrined 
into law somewhere.  Legal rights, the ones that are enforced, are indeed 
granted by the government, hopefully acting as a representative of the 
people.

Jeffrey Nagy
There is a conservation of rights... for someone to get something someone 
has to lose it. Companies will go to Washington to get more rights but at 
our expense.

Garrett C
The Diamond Age by Neal Stephenson mulls this issue and is an excellent book 
to boot.

DownshiftDX
I am again compelled to say that once information is out a person or 
company's direct control (be it a song, a video, a paper, or even the real 
physical object now) you have no real control over it. Sure, our commonly 
accepted law may say you have some right to restrict its use but look at how 
easily the attempts to enforce those rights granted by law are thwarted. 
Useful information doesn't know of or respect our laws. If it is useful or 
novel to people it will spread, be copied, improved upon, etc without regard 
for whoever created it. Fighting it seems really pointless and a waste of 
resources.

KhanneaSuntzu
The future is no longer about corporations - the future is made for and by 
black markets.

Michael Hogan
Mr. Thompson, can you give us information about how we can signup to help 
Mr. Weinberg build his case and spread the word? I've worked around 3D 
printers for the past decade and firmly believe they will become critically 
important to sustaining our domestic manufacturing capability.

stemloop
Perhaps, but patents have to be protected.

amadmonk
Patents are less important to society than innovation, and if patent (or, 
god forbid) copyright law stifles innovation, it is the patent law that 
should give way.

Remember that patents are an ARTIFICIAL creation by the US Founding Fathers, 
designed to further "science and the useful arts"--in other words, to 
stimulate innovation through financial incentive.  If it turns out that 
patent/copyright law is stifling innovation, an honest legislature--and 
note, our legislature is far, far, FAR from "honest"--wouldn't hesitate to 
rewrite, or even scrap, patent law in order to make it more compatible with 
future innovation.
TL/DR:  innovation > patents

stemloop
Actually, patents are also (have always been, since before the 'founding 
fathers'), a key INCENTIVE to innovation, as they reward those who invent. 
This is the balance that patent law was designed to weigh- protecting the 
rights of inventers vs allowing unrestricted use and alteration of 
inventions. If you think it's only about the latter you are just ignorant.

Brian Gomez
Sure worked for Nikola Tesla and Westinghouse

KhanneaSuntzu
Maybe. Then again - it won't take long for 3D print files to alter the heads 
of the tanks and tyranids to a small degree, name them a little different 
and say *SCREW YOU* to the GW patent gestapo lads.
Once people know how to edit 3D files, you will see a raging storm of 
customization and free user content. I agree that for now these GW models ae 
fairly nice looking. Just wait till users everywhere have the power to 
create their own subtle variants, or even customized lines of alternatives. 
In just a few years you will see whole torrents with 3D print files, whole 
ecologies of fan-art armies. Two headed Hive Tyrants. Ogre Stormtroopers. 
Half Greenskin/Half Draenai blade dancer assassins. Dark Young Of Shub 
Slaanesh Devourers. Zerg customized for Warhammer, with strong 
giger-influences. This is the age of the 3D Mashup, and companies that rely 
heavily on these intellectual device rights must start to turn around their 
business model as soon as possible.

In fact - I can visualize scans of these minatures to become animated, much 
like in the game 'total war" and customized in to 3D virtual reality 
creatures, swirling and moving and twitching, downloadable with unique sound 
files and behavioral features - and be used in elaborate 3D virtual world 
battles in collaborative environments such as Second Life.

Now let's try and wrap my head around how patent lawyers would deal with 
that - no outward visible market end to sue. No way to have a look in 
closed/private garden virtual islands. They know that people are there 
waging battles using the meticulously animated virtual world renditions of 
their design, yet they can do jack shit about it.

Other than pay politicians to kick in doors and drag of kids to prison that 
is. Have the kids extradited to the UK to stand trial over "violating 
copyright laws of miniatures". So they can serve long and demonstratively 
cruel prison sentences, as a deterrent.

This whole societal paradigm is headed nowhere. Fun times to live in!

gonzopancho
no, trademarks have to be protected.
patents are a negative right.

Clive
Hi Michael!
I believe Weinberg's organization, Public Knowledge, has some avenues for 
action on their site: http://www.publicknowledge.org...... and there's also 
a fascinating essay he wrote going into the legal issues with far more 
nuance than possible in my short column: 
http://www.publicknowledge.org...... it's really worth reading!

Laston Kirkland
I agree with Jim Snider. lets get some REAL lawyers behind this battle, and 
SUE the living hell out of Games workshop for using a law to intimidate. 
where can I donate money for his defense.

TomKurke
Great to see Clive, and Wired, taking up this very interesting and timely 
topic.

IP in the context of the evolving tech of 3D printing, and the entire 
create/modify/make ecosystem is very complicated - with less than clear 
answers in many cases.  What is, or is not protectable content, varies 
around the world.  In general, however, objects that are utilitarian or 
functional are not protectable by copyright (but can potentially be 
protected by patent or other methods).

The readers of this article might have interest in my blog series on these 
topics -

http://geomagic.com/en/communi...
(lots of challenges when IP intersects with the create/modify/make 
ecosystem)
http://geomagic.com/en/communi...
(a quick overview of IP generally)
http://geomagic.com/en/communi...
(what is generally protectable by copyright)
http://geomagic.com/en/communi... (an examination of various 3D printing 
services and their terms)
http://geomagic.com/en/communi... (a call for a "community" type license to 
share 3D content)
http://geomagic.com/en/communi...
($40M judgment in the US for a StormTrooper helmet, high court in UK finds 
that it is not protectable)

These issues will be resolved in time - but the law is generally slow in 
that regard.  It makes sense to have a general understanding of the space 
and to generally know what to look out for (both as a content creator and 
someone who duplicates content).   While people can have legitimate 
disagreements as to the policy impacts of what 3D content "should" be 
protectable, they shouldn't stick their head in the sand as to what "is" 
currently viewed as protectable either.

MustBeSaid
The law isn't slow, it's lazy and useless. Instead of passing succinct laws 
which provide specific examples that explain exactly what the law means in 
at least a handful of relevant cases that would be considered common, the 
government is allowed to pass vague laws.

We then have to waste millions to billions of dollars in court rooms trying 
to decide what those laws actually mean.

I know that in many cases, it's not possible to specify how a law applies in 
every situation. That's fine. The issue is that the government has become so 
lazy that they purposely pass laws which can mean anything.

You're then innocent until you can convince a judge or jury that you're not. 
If you can't afford to fight, you lose. That's not how our legal system was 
supposed to work. It's not supposed to be a situation where you're guilty 
unless you have the money to prove otherwise. Laws are supposed to protect. 
Laws like this don't protect, they make us vulnerable. They give all the 
power to the government and the wealthy. The only hope the common man has is 
that someone with the resources to fight back will take up their cause.

If you can't clearly define a law and provide clear examples of what that 
law means in multiple contexts then it should not be allowed to even be 
considered for proposal.

The government is paid to make laws. It's their job to define them when they 
are proposed, not our job to fight a hundred court battles to create case 
law.

The same goes for patents. The number of patents that should never be 
granted but do is astounding. It might cost a few thousand extra to have the 
government do some actual research before approving a patent, maybe more in 
some cases but that's far, far, far cheaper than going to mediation just 
once, much less going to court.

hambdiscus
A fertile new field for the patent trolls.

Stan Bundy
Of course, GW has a LONG history of going monkey feces (and the resulting 
poo flinging) over anyone not using ONLY GW miniatures in their games.

Their narrow-mindedness is why I don't support them, not even indirectly 
through their licensed games like the MMO from Bioware/Mythic.

No other game company goes nuts if you use a Middle Earth or D&D figure for 
your elf, or a shadowrun or Cyberpunk figure for your futuristic leader type 
- or, for that matter, using your army of self-cast orc minis from a 30 year 
old mold as proxies (which 3D printing is just a modern spin on).

Marcus Barber
In 2004 as part of the National Geographic Channel's TV program 'Future 
Matters' I said that the future of retail would be 3D printing and that we'd 
all be downloading CAD programs from companies and printing out our products 
at home. The scan and replicate idea wasn't on my radar so I can see how 
this development is going to cause some rukus. Hopefully the manufacturers 
will learn from the music industry's ham fisted efforts and realise that if 
they open up their models for everyone at a small fee (the single brilliance 
of the iTunes approach is the ubiquitous low cost) they'll sell far more 
whilst shifting manufacturing costs to the consumer. Should be a win all 
round. Suspect it won't be though!

Marcus Barber
Strategic Futurist
Nathan Adored
You know, it's interesting how many ppl here blather about how "He
called it a Warhammer this and a Warhammer that.... He called it by a
name branded word, he can't do that!"

I am on Second Life, that place is filled to the gills with all sorts of
objects based directly on things from popular fiction. Star Trek, Star
Wars, DrWho, Harry Potter. You name it, it's there somewhere. Several
different companies are making DrWho "TARDIS" stuff alone. Entire
LINES of TARDIS console rooms, add on rooms, devices, clothes, texture
sets, etc etc. And they're not just giving them away, they're selling
them. Mind you, some of them obfuscate it, calling their creations
"TTCs" (Time Travel Capsules) and the like.... but there's several that
are fairly detailed replicas of the specific console rooms (that is, the
room you fly the time ship from) from the first season of the show all
the way up to the present season, as well as many completely original
designs. However, ALL of them they built from scratch there in SL.
They didn't simply grab the structure from some other place in
cyberspace, tweak it a little, and then sell it. And it is pretty clear
the BBC have no problem with any of this.

Of course, they DO make sure they state that none of them are affiliated
with the BBC, and that the copyrights and trademarks for show-related
things (the names of characters and things) remains
with the BBC.

These have been in place for years and years, and they're constantly
coming out with new products there. If it appeared on the show, or in
one of the comic books or in one of the novels, somewhere along the line
something based on it is going to show up on the market at Second Life.

And yes, I've bought SEVERAL of these. I actually LIVE in one of them
there that I have rezzed semi-permanently on my current parcel, and that
I have placed way up high in the sky (in SL parlance, its called a
"skybox"), and I regularly go play with other sets of them on a sandbox.
I've also been building some add on rooms of my own over on one of the
OpenSim virtual worlds, which when completed I'll probably bring over
to SL and offer to a couple of the larger makers to distribute.

KhanneaSuntzu
And I have visited a tardis with great pose balls too! One even uses a sonic 
screwdriver for anal use.

Plamen Bonev
In Bulgaria is legal everything - even torrent, porn, killing people, 
crimes, drugs, copying physical objects and many more. I know, i'm 
Bulgarian.
F*ck the lawyers!

Chris Miller
Printcrime by Cory Doctorow: http://craphound.com/?p=573

Clive
That's a great story! Doctorow also wrote a novella, "After the Seige", 
which explores the geopolitical implications of 3D printing ... it's online 
free here http://www.infinitematrix.net/...... and also in his print 
collection "Overclocked".

Troy Pippenger
Anyone who thinks corporate America won't win this battle is foolish.

amadmonk
Maybe, maybe not.  Corporate America didn't "win" the MP3 battle--MP3's are 
now the dominant format of music persistence.  Online locker sites like 
Google and Amazon are flourishing, and even notoriously tight-fisted Apple 
has backed off of DRM in the iTunes store.

Corporate America has a LOT of power and influence, true.  But when 
literally ALL of America opposes you, sometimes the "good guys" can win 
after all.

Mike Powers
And yet Napster is gone, mp3.com is gone, and iTunes ran with DRM for 
*years* before BMG et al let anyone sell straight mp3 files.

KhanneaSuntzu
Great. So I will have a mail order company that stealths around from all 
over the world, and an order web site in a country that does not recognize 
these patents. So you order, you pay through one of a few dozen quickly 
shifting financial payment providers (or even through bit coin) and a few 
days later your onethird price printed rendition arrives by mail, printed in 
YOUR country (or even in your city), from whereabouts unknown.

Now try and think ahead to the day where it will be possible to print rugged 
metal parts. Now envision the same business model based on shipping 
functional parts for assault rifles. Or precursor/new strain/untestable 
chemicals that haven't been covered in lagging opiate laws. Starting to see 
where this is going?

John Ohno
Corporate America isn't one of the players. Perhaps you meant Corporate 
Germany?

Lystra Pitts
Corporate Britian Actually

Inferno Shade
Why is this surprising?
I dig 3D printing but come one, this was a no-brainer.

He tired to sell (oop, freely distribute) something as a branded product. As 
if you could sell Spider-man action figures. You can't. You need to license 
the Spider-man brand and then you can sell them or distribute them. Another 
example, selling sports merchandise. You need to license the team brand then 
you sell all the official jersey you want. Or you decide you're going to 
start selling items/objects/figures from the Star Wars universe. You can 
certainly expect a call from lawyers.

I'm not sure what he called the items (tank, etc) when he posted them but he 
would have gotten away with it if he used a generic name or said 
"unofficial." I'm not sure.

Generally it's about mass production for sale. Once you start selling (and 
more than one) something that's branded or has a copyright you're going to 
be in trouble.

In some ways this is less a digital issue because you are making a physical 
object. I'm sure if you sell the 3D models you might get in trouble too. 
Certainly the laws are going to cover this soon. So it seems if people are 
going to use 3D printing you need to be original. For creative people, 
that's not a problem.

pixelpusher220
Did you even read the first few sentences?  "he posted the files for free 
downloading on Thingiverse"  is in the 2nd paragraph...

Astraea_Muse
Ah, but he said this was a Warhammer Dreadnought.  Right there, he claims an 
affiliation with the Warhammer product, which is owned and controlled by 
someone else.  This was not a copyright violation, because he didn't copy. 
It was a trademark violation, if anything.

Wade Dean
My client Thor has a centuries old claim on the word "warhammer". We 
respectfully request that the Warhammer company change its name immediately. 
If they do not, punitive lightning will be forthcoming. Sincerely, Loki 
Schnottwhistle,Esq.
Asgard Lawyers, Limited.

Inferno Shade
Also you totally missed my point(s). Boy people are so brainless. All these 
stupid posts complaining about the government and lawyers.

Bottom line you can NOT give away, even for free, a branded item that isn't 
yours. Imagine this. I sell X. You decide to give X away for free. You're 
making me lose sales on my product. Get it?!

pixelpusher220
Trademark is NOT copyright.  The DMCA, which is what was used, has NOTHING 
to do with Trademark.

>From the article:
"Observers predict that in a few years we'll see printers that integrate
scanning capability--so your kid can toss in a Warhammer figurine, hit
Copy, and get a new one. The machine will become a photocopier of stuff."

Photocopiers can make copies of damn near anything on a page.  Yet amazingly 
books are still sold.  It is not a lost sale.

" I sell X. You decide to give X away for free. You're making me lose sales 
on my product. Get it?"

What I get is that you are selling something that can now be reproduced 
easily and cheaply - in other words the value of what you sell has been 
lowered by the market.

Your exact same argument was made about the photocopier, the VCR (piracy!) 
and recordable CDs.  Yet each market that those things represent is thriving 
in the modern world.  Music industry is growing by leaps and bounds.  Of 
course the 'recording' part isn't doing as well, because what they produce - 
a 'copy' of music - can now be reproduced easily and cheaply

It's your problem to adapt to the new world.  It's called 'Disruptive 
Innovation/Technology'  (look it up on wikipedia).  You aren't guaranteed 
any sales anyway.  Out innovate people or get out of the way.

The 'point' of this article is that new technology is changing the market. 
Just like it always has throughout history.

joel
@pixelpusher220:disqus Spoken like someone who has never paid to have 
something produced, taken a chance, or had their own skin in the game.

"Photocopiers can make copies of damn near anything on a page.  Yet 
amazingly books are still sold.  It is not a lost sale."

Yes it is.  How do you not understand that.  The book had to be researched, 
cleared by legal, publishing and then printed, and then someone takes part 
of that book away-HOW is that not a lost sale?  The fact the books still 
sell is a NON SEQUITUR and has NOTHING to do with your point.  A photocopy 
is of lesser value but BUYING the book values the information.  REFERENCING 
the book for some purpose even does.  Photocopying doesn't.

"What I get is that you are selling something that can now be reproduced
easily and cheaply - in other words the value of what you sell has been
lowered by the market. "

That is moronic.  It is true BUT that does NOT justify what you're saying. 
'Car are cheap.'  Cool, I'll take yours.  'Computers are cheap.' Great, I'll 
take yours.  If you paid for something or have a reasonable claim of 
ownership then I don't get to take it. That logic is flawed.

"Music industry is growing by leaps and bounds."

Clearly you are not a musician.  I resent the stupidity of people online who 
say ignorant things like this.  You SEEM to understand the concept of a 
market...HOW does an industry GROW when return on investment is being 
destroyed?  This is what I hate about people who say things like that...you 
obviously understand that more people have access to FREE music-how the F__ 
K does that grow the industry?!??  It's FREE....!  Go out and buy a quality 
mixing board, buy the software and hardware, got PAY Iota to have your music 
on Itunes and make NO return to cover your cost and THEN tell me how the 
industry is growing.

Seriously...

pixelpusher220
"more people have access to FREE music-how the F__ K does that grow the 
industry?!??"

Ask the radio stations maybe? They give away music for FREE and have for 
decades. It's called advertising. Now anyone can make a copy of music. So 
the money that was in copying and distribution is going to go away. The 
money is playing live music isn't. It will grow because there will be more 
people aware and wanting something that can't be easily copied, like the 
experience of going to a concert or buying merch.

As for 'how' you do that? That's up to you. Google Amanda Palmer for an 
example. She's running a Kickstarter that's grossed somewhere near of a 
million dollars.

And you don't need a mixing board or iTunes. A decent laptop and software 
can do everything you need. Get your music out on the filesharing networks 
and let them distribute it for free and wider than any industry possibly 
could.

New tech is here, use it. You're complaining the 'old' way won't work 
anymore. Guess what, neither did horse and buggies, or steamer ships after 
planes or just pick a Disruptive Technology (google that too).

The world is changing, or rather has changed.
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