Copyrights, Patents, and 3D printing

There's a lot of excitement and investment right now in 3D printing due to the huge potential it has, despite the fact that it is a very small market right now. It makes the ability to create physical objects that don't fall in a category that's protected by copyright as widespread as the creation of copyright-protectable works. It also takes the manufacture of these objects away from the high start-up costs a company faces to anyone's hobby budget.

This potential is going to be extremely disruptive to copyright and patent law when 3D printing becomes widespread.

Two excellent whitepapers have been written that describe the problem, suggests possible pitfalls and solutions.

[www.publicknowledge.org] - Describes the overall issues, and pitfalls.

[www.publicknowledge.org] - Details the grey areas between copyright and patent law where 3D printing will be an issue.

What sort of system do you think would work that would allow 3D printing to continue to innovate and expand while protecting IP?

A specially written variant of GPL specifically for harware and the designs of said hardware.

This could keep the hardware itself open and would force future users of our designs to keep their designs open as well.

In other words what GPL does for software we need it to do for hardware. This would protect our IP as well as ensuring future generations are wide open.


Edit] Thanks for the links PeteD. Nice reading.
I compare where we are right now, to the wooden box days of computers with a wide open 10-12 inch floppy disk for storage...
Those of us in this right now all have the power in our hands to innovate and directly affect our future and possibly our own destinies.

Edited 1 time(s). Last edit at 01/31/2013 01:31PM by xclusive585.

The problem with using a variant of the GPL is that it is a license granting use of a right, not the actual right to IP itself. While a GPL may exist, however worded, for a useful object, it doesn't mean a thing in court if there are no underlying rights involved.

For example: A recent thread on this fourm ( [forums.reprap.org] ) discusses a kickstarter for a 3D printer that looks suspiciously alot like a Rostock. According to the second whitepaper I linked, the design for the Rostock, including any .stl files Johann Rocholl has released under a GPL, fall under patent law - not copyright law, and Johann Rocholl will need to pursue a patent to protect his IP. There is nothing stopping someone from filing a patent on his design first and issueing a cease and desist order to keep him from selling his own invention and revolking the GPL on the .stl files he posted on his design.

Filing for patents is a long and expensive process, and we need some sort of system that will allow nonexperts to easily protect their IP without expanding actual copyright law into conflict with patent law.

@PeteD

That is because copyright law cannot protect an IDEA or concept such as Rostock. Copyright law CAN protect the specific cad files for the original Rostock, but it CANNOT prevent someone from making a design that looks and behaves the same from scratch.

Patents are for protecting ideas. Copyright (in this discussion) is for protecting specific pieces of code.

"including any .stl files Johann Rocholl has released under a GPL, fall under patent law"

Here is where things are going to get even more confusing. It is possible to argue that an .STL file or similar is code rather then an object/product. Under this argument the files would fall under copyright law again. Only the physical objects would then fall under patent law, if at all. This is a HUGE rift in the system that I do not see any way to bootstrap. If open source manufacturing is to continue to grow it needs to create legal standards yesterday. We will need to get the help from the people who developed many of the open source software standards we use today.

>There is nothing stopping someone from filing a patent on his design first and issueing a cease and desist order to keep >him from selling his own invention and revolking the GPL on the .stl files he posted on his design.

This I disagree with. The .stl files, by falling under copyright laws (as do all graphical designs), ARE protected by GPL as long as they are released as GPL.

However I am curious, will a patent overrule the GPL license on the .stl files? Because if so then yes what you mentioned could happen. And if so, that's a BIG problem. Then we need a 100% safe way for work that is released openly to be protected from being locked down by someone else patenting it.



>If open source manufacturing is to continue to grow it needs to create legal standards yesterday. We will need to get the >help from the people who developed many of the open source software standards we use today.
+1000. And I agree 100% that the people we should look to are the people you mention. GPL and Open source people. They could at least point us in the right direction.

There have been several ideas mentioned. It seems some people need to get something official together. The project as a whole should be entitled to legal representation, maybe even free.

Edited 1 time(s). Last edit at 01/31/2013 02:50PM by xclusive585.

@crispy1 and jzatopa

Read the second whitepaper I posted. The whole thing. I realize it is long, but the author did an excellent job of explaining where copyright laws stop, patent laws start and where the grey areas are. Including electronic designs of a physical object. It isn't as cut and dried as you seem to think.

Edit: If you don't want to read the whole thing (I recommend you do) then read the sections titled 'Copyright on a file, Copyright on an Object' and 'Does Licensing Matter?'.

Edited 2 time(s). Last edit at 01/31/2013 02:50PM by PeteD.

PeteD I looked at both those papers yesterday. They lay out obvious problems by viewing laws broad interpretations. Law doesn't work like the rules of physics however, if you can make a cogent argument and convince others that the law needs to be interpreted a certain way, it can be interpreted that way. I don't know where you think what I said was cut and dry. That is unless me saying it is a huge rift (ie a gray area mess) makes it cut and dry, which it does.

The papers lay out the facts but if you study law you know that you can view things in many different ways. Rather then wait until there is a court case that sets precedent we need to lay groundworks for industry growth.

The sooner we tackle this issue in the industry, the better. Things are going to get really messy going forward and the more proactive we can be, the less damage the open source movement will take.

If anyone has connections with the people who laid the groundwork for the open source movement in software years back and is willing to share them with me. I would be willing to invest some of my time into this.

Edited 1 time(s). Last edit at 01/31/2013 03:17PM by jzatopa.

I think the GPL is really quite clever, because it utilises the same legal system designed to create a monoply on ideas to create freedom of ideas. However, it depends on a particular quirk of the IP system which is that copyright applies to software. I think that quirk was only created because the USA (and other western nations) lobbied by big business wanted to protect their highly lucrative software industry. The USA now being the country where you have "the best laws money can buy".

But, however much we hammer the GPL it will not become a nail. We need to look for different solutions.

Before we do that, I think we have to be careful of the Law of Unintended Consequences. If copyright of some sort was extended to hardware designs, I think that could be a disaster. If it becomes easy for the man in the street to claim protection, it is so much easier for corporates. Big businesses would play the system and end up copyrighting any conceivable design you could think of. Computer assistance would even generate designs we couldn't think of.

Already there is a threat of that, the EU is proposing to extend copyright to cover "industrial design". This is to protect things like "designer furniture", which currently anyone can build and sell as long as they don't pass it off as the original designer. Artistic design is much more of a fuzzy thing, the power will be in the hands of people who can afford to go to court. "Your square box looks a lot like my square box. I demand $$$"

My proposal is somewhat radical. Instead of extending more rights to physical objects, we can level the playing field by going the opposite way: removing the rights to physical objects. The patent system is now clearly just a monoply tool for businesses, it should be scrapped.

Sadly, I think the Libre movement is like King Canute against a tide of big business interest and their lobbyists, and hand in pocket politicians. Without the quirk of software copyright, it will be a hard task.

jzatopa Wrote:
-------------------------------------------------------
> PeteD I looked at both those papers yesterday.
> They lay out obvious problems by viewing laws
> broad interpretations. Law doesn't work like the
> rules of physics however, if you can make a cogent
> argument and convince others that the law needs to
> be interpreted a certain way, it can be
> interpreted that way.

Really? It may seem like it, but in practice that is not the case. The interpretations of laws do evolve slowly, but there tends to be a consistent consensus formed. I have never heard of law being radically changed simply by brilliant rhetoric. I can think of specific cases which have been swayed by some improbable hand-waving, but that is more down to the vagaries of juries, rather than changes in legal interpretation. I think some judges are entertained by bright lawyers who attempt to prove 2+2=5, but they invariably fail. Many judges just get annoyed.

(The exception would be international law, e.g. if you want to invade another country on a flimsy pretext and happen to have a huge arsenal, you can pretty much say black is white, and get away with it).

> The papers lay out the facts but if you study law
> you know that you can view things in many
> different ways. Rather then wait until there is a
> court case that sets precedent we need to lay
> groundworks for industry growth.

There have been numerous test cases, some of which are mentioned in the papers. It is because of this that I think those papers are actually pretty solid in terms of interpretation of the law.

> If anyone has connections with the people who laid
> the groundwork for the open source movement in
> software years back and is willing to share them
> with me. I would be willing to invest some of my
> time into this.

I guess that would be the likes of Richard Stallman and FSF, but it seems they are not very interested in hardware. I know that CERN are trying to improve the CERN OHL, you can find their rep on the OHL mailing list.

@jzatopa

I hate the mooshiness of law.

I agree we need to put forward our own stance. Before we do so, what, exactly, is our stance?

For myself, I want some sort of guarantee that any designs that do not fall under current copyright law I put out for public use will not easily be stolen. I'm more interested in ensuring that somthing I intend to be on an open license and shared cannot be stoled and shut down. I'm not so interested in restricitive protections of my IP. I believe the current patent and copyright systems are adequate for that purpose, even for 3D printing.

PeteD Wrote:
-------------------------------------------------------
> @jzatopa
> stolen. I'm more interested in ensuring that
> somthing I intend to be on an open license and
> shared cannot be stoled and shut down. I'm not so
> interested in restricitive protections of my IP.
> I believe the current patent and copyright systems
> are adequate for that purpose, even for 3D
> printing.

Sure, that is a good goal. But now I am confused. You can prevent others shutting you down by applying for a patent, that's true, but costly. Are you saying existing IP is sufficient, or that we need new IP provisions?

Perhaps you have in mind an organisation like FSF which could work within the current patent system and lodge "public domain" patents, and guarantee free license to use them. I guess the fees would be paid by donations, patent fees and lawyers are expensive.

Bobc

There are 2 ways I see managing this. 1. Go back to the drawing board and start over on all IP topics. This is what really needs to be done, this is what many people are calling for, and this won't happen because there are to many stake holders with deep pockets. 2. focus on developing a system that works for open source/public domain files/designs/products. In essence a GPL for products. That has it's own set of problems and limitations. In essence we need to decide or we need a small group of us to decide what is the best for the industry. This is not something that can be decided on by committee but must be created and designed so that changes and growth in the marketplace can be addressed as needed.

Market forces will be a direct influencer on how this develops as 3d printing grows but lack of a proactive groundwork will stymie potential growth as this industry develops. I'm not saying I have it all figured out just yet, but I do see the problems and influences that affect the industry as a whole.

Personally I believe that there needs to be some rule of thumb on what constitutes derivative work. All work that is directly developed under an open source derivative should be forced to be open source/public domain. If a company was not to follow these guidelines it would be the equivalent of them trying to copyright/patent current public domain, ie. void. Does anyone know if a patent becomes void if the prior art that lead up to that patent is/becomes public domain?

The term your looking for is 'defensive publication'. Short version - if its public domain before the patent is filed, the patent is invalid. If you keep it secret, you can't release it in response to a patent, its too late by then. The patent system was originally created to keep people from keeping secrets, it allows you to publish your innovation without allowing everyone else to copy it.

In theory, it doesn't have to be very public, an obscure journal will suffice. In practice, the bad guy has an expensive lawyer to confuse matters, the jury is made up of idiots barely capable of comprehending the instructions they are given, and the judge doesn't much care about either party and just wants to go home. (Pessimism : Encouraging people to plan for the worst since man came down from the trees). So make it as clear as possible that your design is public domain. Publishing on reprap wiki is a good start.

The United States, which will switch to a first-to-file system on March 16, 2013 after the enactment of the America Invents Act means that 'defensive publication' doesn't mean what it used to!

See the article "Untangling The Real Meaning Of "First-To-File" Patents".

---

Bob Morrison
Wörth am Rhein, Germany
"Luke, use the source!"
BLOG - PHOTOS - Thingiverse

The problem will still remain with the new first-to-file system. Creators of open source software don't have to pay anything to have their works protected per se. Open source hardware would still require a patent to be protected under our current system and patents really don't provide what we need. On top of that patents cost a lot of money ($5000-15000), are only for one country and are pretty ineffective if you don't have the capital to protect your patent with litigation if need be.

New laws will need to be made or design files will need to be formally classified as software for there to be any real level of protection.

I think that a lot of people here are neglecting the Prior Art defence. If anything is published into the public domain before a patent application is filed, then the patent is void. Thingiverse is our best defence against a broken patent system.

For my part, I think that the EFF needs to set up a benevolent patent troll. Here's how it would work: people donate or assign patents to the EFFtroll. You could also sign up with the EFFtroll for patent protection without giving them any of your own patents. When any member under the EFFtroll's protection is sued, then all licenses to EFFtroll patents that the aggressor holds are immediately revoked, and the EFFtroll files suit for infringement on any applicable patents used by the aggressor.

Any time the EFFtroll wins a suit against an aggressor, the person or business which assigned the patents to the EFFtroll gets a cut of the winnings.

The net result: you don't pay for patent lawsuits and it's dangerous to sue people who have open-source projects because you never know what the EFFtroll might hold to fight back.

They could even provide a service where worthy ideas could be submitted for patent evaluation by the EFFtroll and patented on the inventor's behalf with immediate assignment to the EFFtroll.

... sounds like a Patent & Trademark Office hold/run by the OS- and DIY-communities

---

Viktor
--------
Aufruf zum Projekt "Müll-freie Meere" - [reprap.org] -- Deutsche Facebook-Gruppe - [www.facebook.com]

Call for the project "garbage-free seas" - [reprap.org]

Quote

I think that a lot of people here are neglecting the Prior Art defence. If anything is published into the public domain before a patent application is filed, then the patent is void.

In theory yes, this is how it works. But in practice, prior art often gets overlooked or just not found by either the filer of the patent and the USPTO. Then you are forced to jump through legal hoops to get the patent invalidated. This costs time and money.

My issue with the EFF troll idea is it just escalates the conflict we have now. More lawsuits just makes our patent system more broken.

We need just one patent lawyer to build his own machine and get involved here. But the chances of a lawyer being a tech-geek? :-(

crispy1 Wrote:
-------------------------------------------------------
> I think that a lot of people here are neglecting
> the Prior Art defence. If anything is published
> into the public domain before a patent application
> is filed, then the patent is void.
>
> In theory yes, this is how it works. But in
> practice, prior art often gets overlooked or just
> not found by either the filer of the patent and
> the USPTO. Then you are forced to jump through
> legal hoops to get the patent invalidated. This
> costs time and money.
>
> My issue with the EFF troll idea is it just
> escalates the conflict we have now. More lawsuits
> just makes our patent system more broken.

The idea behind the benevolent troll is that if it goes far enough, no one sues the troll members anymore because there's no way they can win. So they join the troll. Eventually there's just one patent owner left: the EFF troll. Then the patent system shuts down.

I think that this will one day become mute and not in our hands.

In the early days of personal computers, a great many people with similar strengths and skills to those in this RepRap community struggled to "be on top", but it was just a futile exercise.

I once saw a bar graph that showed the sales shares in the computer industry at the time. Most of the innovative small companies creating all the buzz in those days, reported in the chart, had barely a showing. Some of the most creative and important companies at the time were individuals, or small groups of individuals. Then there was Apple computers with a showing of about 2.5 units (I can't remember what the units were exactly, but they were market share figures). Then, there was IBM. They showed 293 units, and that is why the graph could barely show the smaller companies. Relative to IBM, they were insignificant, including Apple.

All the innovators worked so hard in the early days and figured out the hows and whys of personal computers, and IBM sat back and watched and waited. They refined those ideas behind closed doors and worked out the patent strategies, and the medium sized companies (only hundreds of employee's) waited too. Then, IBM released the specs for their IBM PC1, and that instantly became the standard worldwide, and the medium sized companies followed those specs and created clones with IBM's permission. The original innovators of many of the ideas and concepts behind that technology were left behind, and many faded away because although their ideas and concepts were wonderful, they were made immediately unimportant in comparison to what was now being offered.

So, what we really need to do here is identify who the IBM for this industry is. Who is sitting back and watching and gathering our ideas and working behind the scenes to one day blow us innovators out of the way with superior resources. I would guess it might be HP, but there are a lot of much bigger Asian companies out there who'd have thier eyes watching developments in this stuff. (Many asian countries don't give two hoots about western patents anyway).When the hammer finally comes down, we will survive as amatuer hobbiests, but our craft won't compare to the real stuff that's coming down the pipe. Makerbot will simply be bought out and dismantled, and only a tiny bit of what they've accomplished will be integrated into something much bigger - maybe only thier name, if it becomes household. No work done now by us to control the future legal situtation will matter - not by anything set up by donations, or the work of a lawyer or two interested in 3d printing. In comparison to the real commercially made home use 3d printers that are inevitably on thier way, RepRaps are very dangerous machines. the firmware I've seen (and used), doesn't come close to addressing the potential for fire hazard, and nor do any of the mom and pop commercial designs I've seen offered, so there won't be any selling of these things to the "average" consumer by us. When the big guns come to town, all of that will be addressed, and what we are doing will not be marketable.

There is only a short window of opportunity here to profit, if that is what you are after here, or even just to be in the forefront of this technology. Unless you go to work for the "IBM", whoever that turns out to be, none of your current ideas and concepts will matter, or need to be patented. Even then, you aren't likely to make it big. The guy that invented bubble jet technoloy (all inkjets employ bubblejet technology), was an employee hired to come up with "something". In gratitude, he was given a one time bonus of $5000 in recognition of his acheivement by a billion dollar industry. Anybody remember him? Even his name?

I didn't write this to put anybody here off. I think we are currently riding a very exciting bubble, and since most of us are innovators, we can, and should enjoy ourselves and make the most of this hobby. But, I also think that we are wasting our time and our talents worrying about trying to lock any of this in to patents or copyrights. Go with the original spirit of open source hardware and have fun before the concept gets corrupted.

Before our right to experiment and play with this technology is taken away from us.

Edited 1 time(s). Last edit at 02/06/2013 11:58AM by Tekwizard.

Tekwizard, part of the discussion here is ideas to keep that from being able to happen.

If we can get our technologies covered by a yet-to-exist open-source patent method, then no matter how big and bad the industry gets the tech that is developed as a product or branch of our current tech will also be open source and no one can be locked out. Sure we may not have the resources to make the units as cheap as the big guys can, but we would have access to the technology and could still use it to our advantage even if just at a personal level and not business.


Frankly I think the "Patent Troll" idea is ingenious and a perfect way for us to bend things to our advantage just as big business does.

Edited 1 time(s). Last edit at 02/06/2013 12:33PM by xclusive585.

xclusive585 Wrote:
-------------------------------------------------------
> Tekwizard, part of the discussion here is ideas to
> keep that from being able to happen.
>
> If we can get our technologies covered by a
> yet-to-exist open-source patent method, then no
> matter how big and bad the industry gets the tech
> that is developed as a product or branch of our
> current tech will also be open source and no one
> can be locked out. Sure we may not have the
> resources to make the units as cheap as the big
> guys can, but we would have access to the
> technology and could still use it to our advantage
> even if just at a personal level and not
> business.
>
>
> Frankly I think the "Patent Troll" idea is
> ingenious and a perfect way for us to bend things
> to our advantage just as big business does.


Sorry, but I think you are dreaming in technicolor.

Building a boat and going with the flow is likely to be the most effective strategy here.

Trying to swim against such a strong current is futile.

We're talking about big industry here and we simply do not have the clout.

Advantage?

Edited 1 time(s). Last edit at 02/06/2013 12:38PM by Tekwizard.

(At risk of being a broken record)

Big companies? Microsoft

Open Source? GNU/Linux

I don't see much that I can't do with a Linux box that I can do with a Windows box...


GPL worked for software.

xclusive585 Wrote:
-------------------------------------------------------
> (At risk of being a broken record)
>
> Big companies? Microsoft
>
> Open Source? GNU/Linux
>
> I don't see much that I can't do with a Linux box
> that I can do with a Windows box...
>
>
> GPL worked for software.


LP Records are obsolete.

Microsoft was Bill Gates gathering the innovations of others and capitilizing on thier efforts.

Microsoft made infinately more money than anybody accociated with Linux ever has.

It's not about what you can personally do with this technology...

Tekwizard going with the flow may work for quite a few but the fact is that the market is very different today then it was in the late 70s early 80s. What you are talking about could happen if we don't get some open source hardware groundwork laid out early enough. This emerging market is more related to the OS wars then the hardware wars. A form of linux runs huge parts of the internet and about 50% of out cellphones.

I might of missed it but......liability for copying any protected IP only applies if you are trying to make money off it.

Nothing is stopping you from building any design you can get your hands on...you just can't sell it.

Quote

I might of missed it but......liability for copying any protected IP only applies if you are trying to make money off it.

Nothing is stopping you from building any design you can get your hands on...you just can't sell it.

sigh... No, just no. Legally you are absolutely incorrect. Full stop.

In practice, there is no money to be made from suing people who use patented ideas for their own use, so it is "allowed to slide", so to speak.

CdnReprap Wrote:
-------------------------------------------------------
> I might of missed it but......liability for
> copying any protected IP only applies if you are
> trying to make money off it.
>
> Nothing is stopping you from building any design
> you can get your hands on...you just can't sell
> it.

Do you have a citation for that? I think there is a waiver for personal use, but if you made iPhone copies and gave them away free, you would be liable. Many file sharers have been sued even though they are not making money from it.

Even if you had no money, and there is no likelihood of getting damages, an IP holder can seek an injunction to prevent you harming their business by copying their IP.