Category Archives: 3D Printing

The Tale of Two Spoons and Copyright Law

Let’s take two spoons. One spoon is a simple, yet elegant, functional, well, spoon.  It does spoon like things very well.  The other spoon is well, also a spoon, but it has patterned and ornate handle.  Can either 3D object be protected by copyright?

Copyright Law

Copyright protection in the United States is built around the U.S. Copyright Act and common law interpreting those statutes – but all stemming from the “grant” given to the Federal government found in Article 1, Section 8 of the United States Constitution which states:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. 

A lot has changed since the Founding Fathers penned these words, and the scope of protection of what is protectable by copyright have expanded as well (well beyond a “writing”).

Copyright protection can be extended to “works of authorship” that are:

  • Original – The standard here is very low, but labor and effort is not a substitute for originality.

  • Not utilitarian – Copyright does not protect parts of a work that are purely mechanical or functional.

  • Fixed in a tangible medium – Copyright protection does not attach to a work that someone has been thinking about but which has not yet been physically represented.

  • The “idea-expression dichotomy” – The expression of an idea (or procedure, process, system, discovery, etc.) but not the idea itself is protectable by copyright.  As result, if two people were to independently create a work, without access to the other, neither is infringing.

By statute a copyright holder has certain “exclusive” rights, namely the ability to reproduce, distribute, perform, display, license and create derivative works (e.g. adaptations) based on the original work.  A copyright is infringed when someone violates one or more of the exclusive rights granted to a copyright holder unless they a defense to infringement (such as “fair use” – limited in scope to non-commercial activities like criticism, use in education, etc.).

As I mentioned above, over time, the scope and duration of copyright protection has constantly expanded.  Some of those changes may certainly be characterized as legitimately driven by the need for the law to keep up with the changing pace of technology.  I’m not so sure about many other changes however.  Two hundred years ago, copyright protection was for a maximum of fourteen years, today copyright protection can extend to the life of the author plus seventy years (works made for hire are ninety-five years from first publication!).

What is protectable by copyright has also morphed – from traditional writings (e.g. books, papers, plays, etc.)  to software, and other creative works like sculptures, photographs, drawings, and in some cases even graphic designs, and buildings.

The exact scope of what is protected under copyright varies from country to country –with slight variations in scope – but many of those have been minimized over the past years because of various harmonization conventions (e.g. the Berne Convention).

Back to our Spoons

Remember our two spoons.  Both are perfectly good, functional spoons.

It would seem that because a spoon is the essence of something functional or utilitarian – it would not be protectable by copyright.

Unfortunately, however, the analysis is not that simple – because “useful” objects can have both copyrightable and uncopyrightable features.  As Fact Sheet Number 103 published by the United States Copyright explains (see: http://www.copyright.gov/fls/fl103.html):

A “useful article” is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures. An article that is part of a useful article, such as an ornamental wheel cover on a vehicle, can itself be a useful article.

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design can be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.

Uh oh.  So, it turns out that at least some aspects of one of the spoons might be copyrightable.

Why does this matter?  Because if you were to create a digital copy of the patterned spoon (e.g. capturing via a laser scanner, using photogrammetry, etc.) and then print it on a 3D printer as part of the Capture/Modify/Make ecosystem – you might be unwittingly committing copyright infringement.

In my next blog post I will walk you through additional examples of where and to what copyright protection might apply.

The following are useful sources of information to gain a deeper understanding of Copyright law in the United States:

This blog was originally published on February 20th, 2012.

The Storm Clouds on the Horizon

Can you see them from where you are?  If you can’t see them yet, you certainly will.

We have two incredibly interesting mega trends which are currently impacting the technology space that my company, Geomagic plays in.  Both involve the democratization of technology – moving from limited, high cost, low volume markets to further up the technology adoption curve.

On the one hand we have an explosion of low cost reality capture devices, from the consumer space (like the Microsoft® Kinect) into the medium range terrestrial laser scanning space (with the industry-shifting Faro FOCUS 3D scanner).    On the other hand we have the explosion of consumer and “value” oriented additive manufacturing, or 3D printing, devices – like those offered by 3D Systems (with their new Cubify hardware offering), Makerbot Industries and others. In the middle are several data transformation, transmission and other value added services to get the captured 3D content out to a printer (like Thingiverse, Ponoko, iMaterialise, Google Warehouse, Shapeways and Cubify).   I refer to this space as the “Capture, Modify, Make” Ecosystem.

Gartner Research publishes a series of “Hype Cycle” charts which illustrate where (in their opinion) various technologies and technology trends are, in the adoption cycle.  Technology, in their vernacular, goes from a Technology Trigger, through the Peak of Inflated Expectations, only to slide through the Trough of Disillusionment, to the Slope of Enlightenment, ending at the Plateau of Productivity.  For more context here, this book on “Mastering the Hype Cycle” is useful context –http://www.gartner.com/it/products/research/media_products/book/

In June of 2011 Gartner evaluated 1900 different technologies, and concluded that 3D printing was cresting into the Peak of Inflated Expectations. http://www.gartner.com/it/page.jsp?id=1763814 (To see this very informative chart, visit: http://www.gartner.com/hc/images/215650_0001.gif)

Regardless of where or whether you believe that 3D printing is going to be “next big thing” and truly transformational with in-home 3D printing or “merely” limited to industrial production processes (even if, for example, as part of a service that allows for mass customization and drop shipment to your house) there are significant intellectual property issues that cut across the entire ecosystem.

Simply put, our existing laws (both statutory and common) will need to be stretched (in good and bad ways) to cover data capture, transformation and production.  In many ways I believe we are entering into the next “Napster” era – where the legitimate rights of various stakeholders need to be balanced.

If you are thinking – “I don’t see this at all” consider the story last week which broke that Pirate Bay, one of the largest file sharing networks in the world has created a new category of shareable assets called “Physibles” in which users can trade models capable of being printed on 3D printers.

Of course services that allow for the distribution and remote printing of 3D content as STL files is not new by any measure (many of the services noted above facilitate this already).  What most certainly is new is that a known site which facilitates piracy is promoting it.  In their blog post titled “Evolution: New Category” (see:http://thepiratebay.org/blog/203) TPB blogs that:

We believe that the next step in copying will be made from digital form into physical form. It will be physical objects. Or as we decided to call them: Physibles. Data objects that are able (and feasible) to become physical. We believe that things like three dimensional printers, scanners and such are just the first step. We believe that in the nearby future you will print your spare sparts for your vehicles. You will download your sneakers within 20 years.

The benefit to society is huge. No more shipping huge amount of products around the world. No more shipping the broken products back. No more child labour. We’ll be able to print food for hungry people. We’ll be able to share not only a recipe, but the full meal. We’ll be able to actually copy that floppy, if we needed one.

We believe that the future of sharing is about physible data. We’re thinking of temporarily renaming ourselves to The Product Bay – but we had no graphical artist around to make a logo. In the future, we’ll download one.

For more on Pirate Bay (also referred to as “TPB”) see: http://en.wikipedia.org/wiki/The_Pirate_Bay.  I also encourage you to read the recent story on The Daily at: http://www.thedaily.com/page/2012/01/25/012512-tech-3d-pirates-1-2/ (“Genuine Fakes – With the rise of 3D printers, new questions of piracy loom”

I know I see the storm clouds coming, and they are blowing right behind The Pirate Bay ship. . .

In this blog I will cover various topics that impact our industry. In the coming weeks and months I will walk through a primer on intellectual property law and how it intersects with the exciting Capture, Modify, Make ecosystem.  If you have suggestions or criticisms, please reach out to me – I look hearing from you.

 This blog was originally published on February 2, 2012.

A Quick Education in Intellectual Property (IP)

So, what exactly is intellectual property?  No, it isn’t a fancy phrase created by lawyers just to confuse.  Really.  I promise.  Being a reformed lawyer myself (I got better) I can say that with some authority.

In summary, intellectual property is a blanket term often used to cover and unify a broad range of rights associated with intangible (i.e. things that aren’t physical) assets. Intellectual property rights empower the holder to exclusively “do” something (or prevent others from doing so).  While the scope varies from country to country, at a high level most would consider that copyright, trademark, trade secret, industrial design, patent, and moral rights fall into the definition of intellectual property…

Some criticize using intellectual property as a defining term unto itself because it aggregates together various rights which spawned from divergent backgrounds, protecting different things, and with distinct policy implications.  There is also certainly some debate that the phrase itself was intended to, and does in fact, confuse issues – so that it is easier to apply different rules to physical objects versus intangible rights.  There is further criticism that the scope of intellectual property protection (of all types) has continued to expand over time – well beyond what was originally intended — e.g. copyright protection of ever increasing duration and patents of dubious validity.  I do not necessarily intend to cover the various policy debates surrounding the generic term of intellectual property beyond acknowledging that they in fact exist.

Your mileage will vary across countries (each treating areas slightly differently) as to the specific scope of rights and corresponding protection offered to intellectual property rights holders.  Laws (both statutory and those created by judges – so called “common law”) attempt to balance intellectual property protection (facilitating research, etc.) versus killing innovation.  A great summary on the definition and historical use of intellectual property can be found at Wikipedia: http://en.wikipedia.org/wiki/Intellectual_property.

Even though published in 1997, MIT Professor Lester Thurow’s paper titled Needed: A New System of Intellectual Property is still incredibly timely and instructive.  Professor Thurow made compelling arguments for why the world’s current system of intellectual property rights will only become more and more ineffective as new technologies continue to be developed and ultimately must be re-created from the ground up.http://hbr.org/product/needed-a-new-system-of-intellectual-property-right/an/97510-PDF-ENG

In a world before the iPhone, and iStore and now an iCloud, as well as the “new” Capture/Modify/Make ecosystem, Professor Thurow foreshadowed:

Fundamental shifts in technology and in the economic landscape are rapidly making the current system of intellectual property rights unworkable and ineffective.  Designed more than 100 years ago to meet the simpler needs of an industrial era, it is an undifferentiated, one-size-fits-all system.  Although treating all advances in knowledge in the same way may have worked when most patents were granted for new mechanical devices, today’s brainpower industries pose challenges that are far more complex.

. . .

New technologies make enforcement of property rights much tougher. People can use high-quality scanning technologies with optical character recognition to build electronic libraries quickly and easily. Electronic publishers can in turn just as quickly and easily convert that material back into printed form. When anything can be rapidly, cheaply and privately replicated in low volumes at high levels of quality and then distributed in whatever form the user wants, the choke points available to prevent reproduction of what used to be printed materials have essentially evaporated.

. . .

The legal system may be able to stop factories from copying and selling CDs or books in volume, but it cannot stop individuals from replicating the materials for themselves or selling small numbers to their friends.

The parallels to where we are today are very clear.

There is little doubt in my mind that our current system of intellectual property protection has been stretched well beyond the breaking point, and the changes in the Capture/Modify/Make ecosystem discussed in my earlier post (technology democratization on the input and output sides) will only accelerate and highlight intellectual property issues.

In my next entries I will cover the current scope of copyright protection and how it generally applies in the Capture/Modify/Make ecosystem.

This blog was originally published on February 8th, 2012.