Category Archives: Intellectual Property

Disruptive Trends in the Content to Make Ecosystem

Back in April I prepared a presentation covering various aspects of the capture/modify/make ecosystem — covering what I thought were (and were going to be) the disruptive forces that would impact 3D scanning and 3D printing over the coming months and years.

I outlined the following disruptive trends:

  • Democratization of low cost 3D capture devices and solutions
  • Commoditization of high accuracy 3D capture devices
  • Democratization of 3D printing along with the Makers movement
  • “Gamified” content capture, creation and modification tools
  • Leveraging crowd sourced design and open source 3D content communities
  • Accelerating investment in 3D capture and creation technologies
  • New processing and interaction paradigms
  • Overarching policy issues

Disruptive Trends

I’ve posted the full presentation (minus embedded videos, sorry!) if you have interest.  Disruptive Trends in Capture to Make (4.5.13).  These trends continue to evolve and hold true – I intend to update these trends with new representative examples which have popped up in the last half of 2013.

Apple Buys Tech Behind Microsoft Kinect (PrimeSense) – 3D Scanning Impact?

[Update: Apple has confirmed the acquisition of PrimeSense for roughly $350M, when originally published the acquisition was still only rumored.]

It has been reported that Apple (@Apple) has acquired PrimeSense (@GoPrimeSense) for $345M.

I have been long on PrimeSense’s depth sensing cameras for a while – I started following them in the months leading up to the original launch of the Microsoft Kinect in the “Project Natal” days (late 2009).  Photogrammetry was always interesting to me as an approach to create 3D models – but the reconstructions tended to fail frequently (and without warning) and always required post-processing.

My interest in PrimeSense technology was primarily twofold: (1) to find a way to leverage the installed base of Microsoft Kinect devices as 3D capture devices (as well as the Xbox Live payment infrastructure) and (2) to build an inexpensive stand-alone 3D scanner based on PrimeSense technology.  I was only more interested after Microsoft published their real-time scene reconstruction research known as KinectFusion.  Hacks like the Harvard “Drill of Depth”s (a Kinect made mobile by attaching it to a battery powered drill, screen and software, circa early 2011) only further piqued my interest about the possibilities.

Drill of Depth

The writing was on the wall for PrimeSense after Microsoft decided to abandon PrimeSense technology and develop their own depth sensing devices for use with the new Xbox One.  PrimeSense had to transition from a lucrative relationship with one large customer (~30M+ units) to a developer of hardware and firmware solutions seeking broader markets.  The OpenNI initiative (an open source project to develop middleware SDK for 3D sensors which was primarily sponsored by PrimeSense) was an attempt to broaden the potential pool of third party developers who would ultimately build solutions around PrimeSense technologies.

There are many PrimeSense powered 3D scanners in the market today – it will be interesting to see whether this pool expands or contracts after the planned Apple acquisition (e.g. will the direction be inward, focusing the PrimeSense technology to be delivered directly with Apple only devices or will they continue to court third parties developers across all types of hardware and software solutions).   The new PrimeSense Capri form factor already allows for entirely new deployment paradigms for this technology, with one more generation the sensor will have shrunk so much that they can be comfortably embedded directly in phone and tablet devices (but with a trade off in data quality if the sensor shrinks too much).

Here is a quick run-down on a non-exhaustive list of PrimeSense powered 3D scanner hardware technology and vendors (note, this isn’t a profile of the universe of software companies that offer solutions around 3D model and scene reconstruction – as there are many):

Standard Microsoft Kinect – the initial movement for using the PrimeSense technology as a 3D scene reconstruction device came from hacks to the original Microsoft Kinect.  The Kinect was hacked to run independently of the Kinect, and ultimately Microsoft decided to embrace these hacks and develop a standalone Kinect SDK.

Microsoft Kinect for PC – Microsoft began selling a Kinect which would directly interface with Windows devices, it also enabled a “near” mode for the depth camera.

Asus XTION (Pro) – This is an Asus OEM of the PrimeSense technology which provides essentially the same functional specifications as delivered in the Microsoft Kinect (they use the same PrimeSense chipset and reference design).

MatterportMatterport (@Matterport) has raised $10M  since the middle of 2012 to develop a camera system, software and cloud infrastructure for scanning interior spaces.  The camera system itself is built around PrimeSense technologies (along with 2D cameras to capture higher quality images to be referenced to the 3D reconstruction created from the PrimeSense cameras).   Most interesting to me that Matterport counts Red Swan  and Felicis Ventures as investors, both which are also invested into Floored (see below).  A few days ago Forbes profiled the use of the Matterport system, the article is worth a read.

Floored – (@Floored3D), formerly known as Lofty, concentrates primarily on developing software to help visualize interior spaces and is concentrating first on the commercial real estate industry.  Floored has raised at least a little over $1M now, including common investors with Matterport.  For more on the relationship between Matterport and Floored, see this TechCrunch article.  Floored’s CEO is Dave Eisenberg, and he gave a great presentation at the TechCrunch NYC Startup Battlefield in late April 2013 explaining Floored’s value proposition.   Floored is definitely filled with brilliant minds, and obviously a whole lot of computer vision folks who understand how difficult it is to attempt to automatically generate 3D models of interior spaces from scan data (of any quality).  To get a sense of what they are currently thinking about, check out the Floored blog.

Lynx A – This was an offering from a start-up in Austin, Texas known as Lynx Labs (@LynxLabsATX) who launched an early 2013 KickStarter campaign for an “all in one” point and shoot 3D camera.  This device was a sensor, combined with a computing device and software which would allow for the real time capturing and rendering of 3D scenes.  The first round of devices shipped in the middle of September 2013.   I do not know for sure, but my assumption is that this device is PrimeSense powered.

DotProduct (@DotProduct3D) with their DPI-7 scanner.   As with the Lynx A camera, this is a PrimeSense powered device, combined with a Google Nexus, and their scene reconstruction software called Phi.3D.  DotProduct claims 2-4mm accuracy at 1m, achieved through a combination of individual sensor calibration, their software, and rejecting sensors which do not achieve spec.  DotProduct announced in late October 2013, at the Intel Capital Global Summit, that Intel Capital (@IntelCapital) had made a seed investment into DotProduct, spearheaded by Intel’s Perceptual Computing Group.

Occipital Structure SensorOccipital (@occipital) is an extremely interesting company based in Boulder and San Francisco, filled with amazing computer vision expertise.  After cutting their teeth on some computer vision applications for generating panoramas on Apple devices, they have bridged into a complete hardware and software stack for 3D data capture and model creation.  Occipital counts the Foundry Group (@foundrygroup) as one of its investors (having invested roughly $7M into Occipital in late 2011).   Occipital completed a very successful KickStarter campaign for its Structure Sensor raising nearly $1.3M.

Occipital Structure Sensor

The Structure Sensor is a PrimeSense powered device which is officially supported on later generation Apple iPad devices.  What is compelling is Occipital’s approach to create an entire developer ecosystem around this device – no doubt building on the Skanect (@Skanect) technology they acquired from ManCTL in June of 2013.  Skanect was one of the best third party applications available which had implemented and made available the Microsoft Fusion technology (allowing for real time 3D scene reconstruction from depth cameras).   If it is true, and Apple in fact does buy PrimeSense, then that is potentially problematic for Occipital’s current development direction if Apple has aspirations for embedding this technology in mobile devices (as opposed to Apple TV).  Even if Apple did want to embed in their iDevices, it would seem then that Occipital becomes an immediately interesting acquisition target (in one swoop you get hardware, and most importantly the computer vision software expertise).  Given the depth of talent at Occipital, I’m sure things are going to work out just fine.

Sense™ 3D Scanner by 3D Systems – This is the newest 3D scanner entrant in this space (announced a few weeks ago) delivered by 3D Systems (@3dsystemscorp), which acquired my former company, Geomagic.  The Sense uses the new PrimeSense Carmine sensor – a further evolution of the PrimeSense depth camera technology, allowing for greater depth accuracy across more pixels in the field (and ultimately reconstruction quality).  PrimeSense has a case study on the Sense.

What Are Competitive/Replacement Technologies for PrimeSense Depth Sensors?

In my opinion, the closest competitor in the market today to PrimeSense technologies are made by a company called SoftKinetic (@softkinetic) with their line of DepthSense cameras, sensors, middleware and software.

SoftKinetic

On paper, the functional specifications of these devices stack up well against the PrimeSense reference designs.  Unlike PrimeSense, SoftKinetic sells complete cameras, as well as modules and associated software and middleware.  SoftKinetic uses a time of flight (ToF) approach to capture depth data (which is different than PrimeSense).  Softkinetic has provided software middleware to Sony for the PS4 providing a middleware layer for third party developers to create gesture tracking applications using the PlayStation(R)Camera for PS4.   Softkinetic announced a similar middleware deal with Intel to accelerate perceptual computing in the early summer of 2013 too.

There are other companies in the industrial imaging space (who presently develop machine vision cameras or other time of flight scanners) which could provide consumer devices if they chose to (e.g. such as PMD Technologies in Germany).

I believe the true replacement technology, at least in the consumer space, for 3D data acquisition and reconstruction will come from light field cameras as a class in order to provide range data (e.g. z depth), and not necessarily from active imaging solutions.  See my thoughts on this below.

Predictions for 2014 and Beyond

Early in 2013, when I was asked by my friends at Develop3D to predict what 2013 would bring, I said:

In 2013 we will move through the tipping point of the create/modify/make ecosystem.

Low cost 3D content acquisition, combined with simple, powerful tools will create the 3D content pipeline required for more mainstream 3D printing adoption.  

Sensors, like the Microsoft Kinect, the LeapMotion device, and [Geomagic, now 3D Systems’] Sensable haptic devices, will unlock new interaction paradigms with reality, once digitized.  

Despite the innovation, intellectual property concerns will abound, as we are at the dawn of the next ‘Napster’ era, this one for 3D content.

I believe much of that prediction has come/is coming true.

For 2014 I believe we will see the following macro-level trends in the 3D capture space:

  • Expansion of light field cameras – Continued acceleration in 3D model and scene reconstruction (both small and large scale using depth sense and time of flight cameras but with an expansion into light field cameras (i.e. like Lytro (@Lytro) and Pelican Imaging (@pelicanimaging)).
  • Deprecation of 3D capture hardware in lieu of solutions – We will see many companies which had been focusing mostly on data capture pivot more towards a vertical applications stack, deprecating the 3D capture hardware (as it becomes more and more ubiquitous).
  • More contraction in the field due to M&A – Continued contraction of players in the capture/modify/make ecosystem, with established players in the commercial 3D printing and scanning market moving into the consumer space (e.g. Stratasys acquiring Makerbot, getting both a 3D scanner and a huge consumer ecosystem with Thingiverse) and with both ends of the market collapsing in to offer more complete solutions from capture to print (e.g. 3D printing companies buying 3D scanner hardware and software companies, vice versa, etc.)
  • Growing open source alternatives – Redoubled effort on community sourced 3D reconstruction libraries and application software (e.g. Point Cloud Libraries and Meshlab), with perhaps even an attempt made to commercialize these offerings (like the Red Hat model).
  • 3D Sensors everywhere – Starting in 2014, but really accelerating in the years that follow, 3D sensors everywhere (phones, augmented reality glasses, in our cars) which will constantly capture, record and report depth data – the beginnings of a crowd sourced 3D world model.

The Use of Light Field Cameras and 3D Data Acquisition and Reconstruction Will Explode

While the use of light field cameras to create 3D reconstructions are just at their infancy, just like the PrimeSense technology (which was designed to be used for an interaction paradigm, not for capturing depth data), I can see (no pun intended) this one coming.  Light field cameras have a strong benefit of being a passive approach to 3D data acquisition (like photogrammetry).  For what is possible in depth map creation from these types of camera systems, check out this marketing video from Pelican Imaging (note the 3D Systems Cube 3D printer)] and a more technical one here .

Pelican Imaging Sensor

Image from Pelican Imaging.

I will have a separate post looking in more depth at light field cameras as a class including Lytro’s recent new $40M round of funding and the addition of North Bridge.  I believe, after refinement, that they ultimately become a strong solution for consumer mobile devices for 3D content capture because of their size, power needs, passive approach, etc.  In the interim, if you have interest in this space you should read the Pelican Imaging presentation recently made at SIGGRAPH Asia on the PiCam and reproduced in full at the Pelican Imaging site.  Fast forward to pages 10-12 in this technical presentation for an example of using the Pelican Imaging camera to produce a depth map which is then surfaced.

What could ultimately game changing is if we find updated and refined depth sense technology embedded and delivered directly with the next series of smartphones and augmented reality devices (e.g. Google Glass).  In that world, everyone has a 3D depth sensor, everyone is capturing data, and the potentials are limitless for applications which can harvest and act upon that data once captured.

Let the era of crowd sourced world 3D data capture begin!

(. . . but wait, who owns that 3D world database once created. . .

This article was original published on DEVELOP3D on November 18th, 2013, it has been modified since that original posting.

The call for a harmonized “Community License” for 3D Content – Part I.

Ponoko, Cubify, 3DWarehouse, oh my!

Let’s start first by reviewing one of the older services available to host 3D content and see how they address the issue. I am assuming for purposes of this review that all of the terms of service are in fact enforceable (which might be a big assumption!).

Google 3D Warehouse

Google has been publicly hosting and re-distributing 3D content (primarily in their .SKP file format) for a long time by Internet standards, since at least 2006.   Have you ever thought to read the Google terms applicable to the 3DWarehouse service?  If not, you can find them at:http://sketchup.google.com/intl/en/3dwh/tos.html.

Under Section 5.7.3, you agree not to upload any content which violates the IP of a third party.  That part is not necessarily surprising.  Google wants you (as the user) to be responsible for the content you post.

What might be surprising is that if you do decide to upload content to the service that under Section 11.1(b) you grant Google “the perpetual, sublicensable, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any [c]ontent or derivative works thereof which you submit, post or display on or through, the [s]ervices.”  This license grant is of the typical type associated with works protected by copyright (but not necessarily other IP types). By virtue of Section 11.2, you grant Google the right to extend this right to other companies or organizations which use the services, and under Section 11.1(c), you grant these rights to other users of the services.   Under Section 11.6 you warrant that you have the right to grant the licenses in this section.

While you are not restricted from providing the content you upload to the service to others under different terms (see Section 11.3(a)) even if you remove the content from the service and terminate your relationship with Google, the license granted in Section 11 continues.

OK, as a practical matter, what does this mean?

It means that once you upload content, you have granted virtually an unlimited right for Google, and third parties, to distribute your work, as well as to create derivative works, without any clear attribution rights back to you.  Google does not provide a selective licensing mechanism to allow people who upload content to pick how much (or how little) of their rights they want to grant or extend to downstream users.  If it turns out that you uploaded something that you didn’t own the rights to, by operation of Section 5.7.3 and 11.6 you could be found to be in breach of contract with Google (as well as subject to an independent infringement action from the actual rights holder).

Ponoko

Ponoko has clearly thought through the implications of IP on the capture or create/modify/make ecosystem.  They walk contributors through a list of Creative Commons license types (for an example see herehttp://www.ponoko.com/make-and-sell/sell-eps) depending on how the user chooses to sell products or product plans.  The Ponoko terms of use can be found here – http://www.ponoko.com/about/terms-and-conditions and a statement on intellectual property here http://www.ponoko.com/about/copyright.

Unlike the Google approach, Ponoko makes it clear that they do not obtain any underlying rights to objects which are uploaded to their service other than a right to display them to market the objects for sale.  Even this right expires six (6) months after the item has first been uploaded.

Thingiverse

Thingiverse  is the community hosting site for 3D printable content run by Makerbot Industries.  The terms of service can be found here – http://www.thingiverse.com/legal.   Thingiverse follows the same general scheme as Ponoko.  In addition to the limited right granted to Thingiverse necessary to incorporate contributed content into the site and services (found in Section 3.2), the contributor is asked to select which Creative Commons license type they want to share their content under, see Section 3.3.  Thingiverse’s DMCA take-down notice can be found here – http://www.thingiverse.com/legal/ip-policy.

GrabCAD

GrabCAD bills itself as a community site offering 3D models for mechanical engineers (and roughly 29K models in early March 2012).  GrabCAD’s terms of service can be found here: http://grabcad.com/terms.

GrabCAD generally follows the Google model, and places the burden on IP clearance issues and concerns with the content contributor, see Section 2 “Responsibility of Contributors.”  GrabCAD does include a DMCA notice as well at Section 7.

Shapeways

Shapeways provides a shop to print existing uploaded 3D content, a pathway for “advanced” users to upload their own models for production, as well as a pathway for “Easy Creators” which allows for the simplified personalization of stock content (suck as cuff links, customized sake set, etc.), see:http://www.shapeways.com/creator/.

Shapeways’ terms and conditions, last updated in February 2012, can be found here –http://www.shapeways.com/terms_and_conditions.  See the subsections titled “user generated content” and “intellectual property rights in the 3D design”.  Except for 3D Designs, if you upload content to the Shapeways site you grant Shapeways a royalty-free right to use, including create derivative works, based on the uploaded content.  By uploading it, the contributor represents that the content does not infringe any other IP rights. This is consistent with the Google approach.

With respect to uploaded 3D designs, the contributor grants Shapeways the limited right to use the design to manufacture the model to fulfill legitimate orders as well as to display it on the website.  It is possible to change the rights allocation so that the model is only displayed on the website (but cannot be produced).  Shapeways approach to uploaded 3D designs is similar to that of Ponoko.

Cubify (from 3D Systems)

Cubify is in the process of launching – they don’t expect to launch until later in 2012.  Their current terms of service can be found http://cubify.com/info/service.aspx and http://cubify.com/learn/faq.aspx#BuyersLicense.

Cubify will allow for the download of hosted models under several license types, see Section 5 of the Terms of Service, specifically Sections 5(d), (e), and (f).  These are a “standard royalty free license”, and “editorial license only” and “royalty free license with model release.”  To be able to become a contributor, a user must become a “Cubify Artist”, see: http://cubify.com/learn/faq.aspx#CubifyArtist.

iMaterialize (from Materialise) 

iMaterialize is the service run by Materialise with the primary focus of providing a location for designers (mostly well known, rather than community developed) to host unique, 3D printable objects.  The models themselves are not downloadable so that derivative works can be made from them.  The FAQ is here: http://imaterialize.com/faqand the legal terms are found here: http://i.materialise.com/legal/terms.  Whether this site develops over time to be more like Ponoko or Thingiverse remains to be seen.

The FAQ, in refreshing non-legalese, states that: “The person who placed the initial order is considered the owner of the model and has the IP rights for that model. By accepting the vendor terms and conditions, you give i.materialise the right to produce copies of the model in return for a designer’s fee. Normally, the owner is also the designer. That is why we call it a designer’s fee. If you didn’t design the model yourself, but want a special designer’s page for the person who did, please contact us for permission to set up a designer page for this designer.”

The iMaterialize website has a very clean UI in order for a designer to set-up a virtual shop, see:http://i.materialise.com/blog/entry/how-to-open-your-own-shop-at-i-materialise.

Summary of Approaches

Service License Type Other notable
Google 3Dwarehouse Unique Might be surprising to learn that once uploaded you grant Google a right to share and even commercialize with others.
Ponoko CCL Elegant drop down license “picker” as part of upload process.
Cubify Unique New site and service, full terms likely under development.  Unclear why 3D Systems did not gravitate towards the CCL scheme rather than developing their own nomenclature.
Shapeways Unique Shapeways, in its terms and conditions, makes explicit distinctions between user uploaded content which is a 3D model versus that which is not.
GrabCAD Unique Contributed content is intended for “non-commercial” use unless otherwise specified by the contributor.  Unclear specifically then what an engineer who downloads content is allowed to do with it.   See Section 4.
Thingiverse CCL Thingiverse expressly states that they will share the CCL selected by the contributor with other sites, but that they are not responsible of that secondary site or service fails to adhere to those terms, see the last sentence of Section 3.2
iMaterialise Unique Not a hosting and community site per se.  Intended to provide a commercialization avenue for unique creations from designers.  Very interesting material selector pages –http://imaterialize.com/materials/compare.  Geared towards creating a physical model, not facilitating the sharing and modification of models for downstream uses.

Various Approaches and Interests

As you can see from our view from the trenches, vendors are approaching IP concerns in the create-capture/modify/make ecosystem differently.

This is an area that the folks at Creative Commons are clearly watching (the folks behind the CCL), see the post titled “CC and 3D Printing Community.”  http://creativecommons.org/weblog/entry/30605.

The challenge with the current CC licensing schemes is that they were never intended to cover functional content (that which might be covered by IP rights other than copyright).    As the blog above notes –

With the exception of CC0, the Creative Commons licenses are only for granting permissions to use non-software works. The worlds of software and engineering have additional concerns outside of the scope of what is addressed by the CC licenses. 3D printing is a new medium which encompasses both the creative domains of culture and engineering, and often 3D printed works do not fall neatly into either category.

So what does this mean?  Well, basically, that despite best intentions, services that have tried to create a structured approach to IP issues in the 3D printing community by relying on the CCL scheme have done so prematurely.  Creative Commons does not apparently believe that the CCL scheme, as currently drafted, “works” here.  Uh oh and oh no.

What is Needed?

An integrated, harmonized approach to dealing with all IP considerations in the create-capture/modify/make ecosystem is required.

This is a topic which is already being actively examined for remedy in the CCL 4.0 release cycle.http://wiki.creativecommons.org/4.0/Games_3d_printing_and_functional_content.  Far beyond me (as there are domain and policy experts considering the interplay of these various schemes) to make a specific, actionable, proposal – other than to highlight that one is in fact desperately needed.  One that the current stakeholders can work together to formulate and adopt from a policy perspective – and then implement as close to uniformly as possible in their offerings.

The answer may come in the form of a new CCL type (but as the above discussion highlights, there are some distinct incompatibilities between the CCL scheme entirely and combined functional and creative works).  The answer may also come in the form of a new rights scheme applicable broadly to this type of content.   What should not acceptable to anyone is where we currently are – a distinct, explicit shade of grey.

This blog was originally published on March 22nd, 2012.

CrunchBase: Using Crowdsourced Data for Commercial Purposes

For those of you who don’t know about CrunchBase (@crunchbase), it is a crowdsourced database of information about startups, people and investors.  Crunchbase describes themselves as “the free database of technology companies, people, and investors that anyone can edit. Our mission is to make information about the startup world available to everyone and maintainable by anyone.”  AOL acquired Crunchbase and TechCrunch in 2010 from Michael Arrington.

Crunchbase has been very successful in sourcing data, and have established strong relationships with many of the leading venture capital firms who regularly share data about their portfolio companies (fundraising, people, etc.).  CrunchBase has even developed an Excel Data Exporter, in addition to its API access, to allow for the broader distribution of the information contained in its databases.

The current Crunchbase Terms of Service, Privacy Policy,and Licensing Policy govern the use and access of Crunchbase data.

As of the date of this blog, the Licensing Policy provides that:

We permit anyone to republish our content in accordance with this licensing policy.

We provide CrunchBase’s content under the Creative Commons Attribution License [CC-BY]. Our content includes structured data, overviews and media files associated with companies and people. Our schema, and documentation are also offered under the Creative Commons license.

We ask that API users link back to CrunchBase from any pages that use CrunchBase data. We want to make sure that everyone is able to find the source of the content to keep the service up-to-date and accurate.

This Licensing Policy may be updated from time to time as our services change and grow. If you have any questions about this policy please contact us at licensing@crunchbase.com.

CrunchBase provides a specific licensing contract for services that charge for the use of their data. Contact licensing@crunchbase.com

The CrunchBase Terms of Service provide further restrictions on how the API maybe used:

We provide access to portions of the Site and Service through an API thereby enabling people to build applications on top of the CrunchBase platform. For purposes of this Terms of Service, any use of the API constitutes use of the Site and Service. You agree only to use the API as outlined in the documentation provided by us on the Site.

 On any Web page or Application where you display CrunchBase company or people results, each page must include a hypertext link to the appropriate company or person profile Web page on CrunchBase.com. Additional CrunchBase Branding Requirements can be found on the following Web page: http://info.crunchbase.com/docs/licensing-policy/. CrunchBase may grant exceptions on a case-by-case basis. Contact us atlicensing@crunchbase.com for special branding requests, which must be approved in advance in writing.

CrunchBase will utilize commercially reasonable efforts to provide the CrunchBase API on a 24/7 basis but it shall not be responsible for any disruption, regardless of length. Furthermore, CrunchBase shall not be liable for losses or damages you may incur due to any errors or omissions in any CrunchBase Content, or due to your inability to access data due to disruption of the CrunchBase API.

CrunchBase reserves the right to continually review and evaluate all uses of the API, including those that appear more competitive than complementary in nature.

CrunchBase provides a specific licensing contract for services that charge for the use of their data. Contact licensing@crunchbase.com

CrunchBase reserves the right in its sole discretion (for any reason or for no reason) and at anytime without notice to You to change, suspend or discontinue the CrunchBase API and/or suspend or terminate your rights under these General Terms of Service to access, use and/or display the CrunchBase API, Brand Features and any CrunchBase content.

I previously reviewed various licensing schemes, including the Creative Commons scheme, in a two part earlier blog series The Call for a Harmonized Community License for 3D Content where I proposed a harmonized “community” type license for content which could be produced on 3D printers (arguing that the existing license types do not “fit” for content which can mix copyright, patent, trade dress and other rights)

For those of you who are not aware, the CC-BY license type is a very broad license grant – providing for the “maximum dissimentation of licensed materials”.  You can find the existing CC license types here and specifically the summary of CC-BY license.

Crunchbase was careful to make clear that uploaded material which they link or provide along with the company information might be licensed differently (e.g. not under the CC-BY license) and specifically made clear that:

The graphical layout of the CrunchBase website and other elements of the Site, Content or Service not described above are the copyright of CrunchBase, and may not be reproduced without permission.

 

Enter Pro Populi and People+

Pro Populi, a small three person startup, has been developing applications utilizing the CrunchBase dataset, one app called People+.  Pro Populi has apparently been accessing the CrunchBase data (originally via the API, but also through other means apparently) to populate their own database of content and then accessing that content (and other content) from their applications.

Wired (@Wired) reporter David Kravets (@dmkravets) broke the story on November 5th in a story titled AOL Smacks Startup for Using CrunchBase Content It Gave Away.  If you click through the link to the original Wired article, you can review some of the correspondence gathered by David Kravets in support of the story.

Pro Populi was served with a cease and desist letter from AOL (the parent company of CrunchBase).  Quoting from the Wired article, an AOL Assistant General Counsel apparently sent the following in an email to the Pro Populi CEO after a meeting with the President of CrunchBase last Friday:

On the chance that you may have misinterpreted Matt’s willingness to discuss the matter with you last week, and our reference to this as a ‘request,’ let me make clear, in more formal language, that we demand that People+ immediately cease and desist from its current violation and infringement of AOL’s/TechCrunch’s proprietary rights and other rights to CrunchBase, by removing the CrunchBase content from your People+ product and by ceasing any other use of CrunchBase-provided content.

But if CrunchBase didn’t want to allow others to use the data, why does it license its content under the CC-SA scheme?

Hopefully CrunchBase and Pro Populi can come to an agreement which works for both of them and their interests.

While CrunchBase can likely legitimately claim to restrict access to their content via their API (licensed separately, not covered by the CC-SA scheme, and with separate terms), once content covered by the CC-SA license has been accessed and copied in a manner consistent with CC-SA, can CrunchBase assert rights to “get it back?”  That seems to be an incredibly difficult road to hoe, and inconsistent with the very broad terms of the CC-SA license grant.  Worse yet, according to the Wired article, the General Counsel of the Creative Commons Corporation doesn’t think so.  The Electronic Frontier Foundation represents Pro Populi.

Oops.

CrunchBase could have stayed within the CC license scheme and chosen a different CC license type for the underlying data – including one which specifically prohibits the use of the content for commercial purposes, which prohibits the creation of derivative works, and which requires specific attribution to them.  That license type is CC BY-NC-ND.  On a case by case basis they could have authorized/waived the restrictions contained in the license.  CrunchBase could have also changed the license grant for content accessed via the API.   This is solvable.

For an interesting view of this dispute from TechCrunch (a sister company to CrunchBase), see their take on the dispute.

 

Impact On Other “Hybrid” Commercial Use of Crowdsourced Data?

While CrunchBase and Pro Populi resolve their dispute, I am most interested in thinking about how this potentially impacts other crowdsourced data platforms and the applications built on top of them.   It is an interesting dilemma and question – how can/should crowdsourced data platforms be able to commercially benefit from their efforts – including restricting other potential competitors from a copying of data for their own purposes – commercial or otherwise?  Sourcing, filtering, vetting, editing, organizing, etc. hundreds, thousands and millions of data points is a complex undertaking.  It takes time, effort, people and ultimately money.  Unless that vetting is also done from a crowdsourced perspective (or mostly so – like the Wikipedia model), allowing potential competitors (commercial or otherwise) to copy that structured content is a potential death knell.  In that instance, openness needs to be balanced against a commercial purpose.

CrunchBase President Matt Kaufmann blogged about the CrunchBase dispute with Pro Populi and the EFF.   He essentially acknowledges the challenge of openness in the context of trying to build a commercial business – but re-affirms his belief that CrunchBase thought they restricted the use of their data (via the API or otherwise) for commercial purposes under their current licensing terms.

[T]o invest in CrunchBase’s constant improvement requires building a business around CrunchBase in a way that successfully takes into account our terms of service and our openness. We are confident that this is possible, and that’s what we are on the path to figuring out.

This is of course the challenge – adding enough value in the stack above the “open” content that can be commercialized.   As an example, take a look at MapBox – MapBox is a cloud-based platform which allows for developers to embed geo rich content into their web and mobile offerings.  They recently took $10M from Foundry Group, and I blogged about that investment – MapBox, Geo Software Platform, Maps $10M from Foundry Group.

MapBox relies on data sourced from OpenStreetMap, the “free wiki world map.”    OpenStreetMap licenses its content in two ways – the underlying data is licensed as open data under the Open Data Commons Open Database License (ODbL) while the cartography and documentation are licensed under the CC BY-SA license, the same license selected by CrunchBase).  BTW, Kevin Scofield likes the MapBox interface too.

It would be a difficult commercial business model indeed for MapBox to go through the effort of building an infrastructure to help source, collect and organize all kinds of mapping data, which was open for other uses, as well as building an application layer on top of it.   MapBox instead focuses on creating a great platform layer on top of the otherwise “open” content (others are free to do so as well).  This model works because there is enough community interest to support an undertaking like OpenStreetMap to begin with.  Can the same be said for the data underlying CrunchBase?

Reality Versus Hype: Analyzing the Innovation Hype Cycle on 3D Scanning and Printing

No offense to Gartner, but I believe their analysts have gotten it wrong in the assessment of 3D printing and 3D scanners included in their 2012 Hype Cycle infographic.

Gartner concludes that both 3D printing and scanning are 5-10 years away from their Plateau of Productivity, i.e., the time when mainstream production starts to take off. While it is certainly debatable at what point the democratization of 3D capture and production technologies will unlock mass customization and the concept of a “personal factory,” 3D printing and scanning tools are being used productively right now in a wide range of businesses. Of course, I know this since Geomagic is a key player in this space, and our software is used to support many production processes in conjunction with our various 3D scanning and printing partners. It’s not hype; it’s reality. In context, then, for many applications, 3D scanning and printing technologies are already at the Plateau of Productivity.

It’s easy for a research analyst, writer, blogger, industry pundit or other predictor of ominous events to throw cold water on innovation and creativity. But the question remains, how does hype transition to a market- and game-changing shift that impacts the way people live and work?

Belief plays a big part.

No one can predict the future. Sometimes you just have to believe. Yes, the belief should be tempered with a dose of reality, but we should (really) believe nevertheless. The world would be a much more boring place without the dreamers and innovators who regularly reject reality and substitute their own creativity, drive, hope and belief.

History is littered with innovators and innovations that wouldn’t fit neatly into a Hype Cycle curve and wouldn’t give way to the nearsighted individuals and companies blind to the changing world (and unable to adapt, pivot and embrace the change). Innovators and innovations fly in the face of market research, design panels and peer reviews. They believe when no one else does.

Here are a few history tidbits about inventions and innovators who shrugged in the face of doubt:

 “Everything that can be invented has been invented.” – Charles H. Duell, Commissioner, US Patent Office (1889)

  • Yet the pace of change and innovation has only accelerated in recent years.

“A horseless carriage, why in the world would anyone want one of those?”

  • Although drivers traveled trillions of miles by automobile in the US alone in 2011.
  • “Enthusiasm is the yeast that makes your hopes shine to the stars. Enthusiasm is the sparkle in your eyes, the swing in your gait. The grip of your hand, the irresistible surge of will and energy to execute your ideas.” – Henry Ford

“Orville and Wilbur, go back to building bikes; you are stupid.”

  • In 1895 Lord Kelvin added, “Heavier-than-air flying machines are not possible.”
  • Travelers have since flown billions of air miles annually, completely re-shaping economies and driving globalization.

“There is a world market for maybe five computers.” – Thomas J. Watson, IBM Chairman (1943)

  • Intel’s Andy Grove added, “We were exposed to Apple’s early products, and I could not imagine anything except trivial applications for that.” When commenting on the rise of the personal computer, he thought it would only be good for storing recipes, the irony being that the PC would be the biggest consumer product, by far, for Intel. Click here for more information.
  • In the first quarter of 2012, 89 million worldwide PC shipments took place.

“What an incredibly stupid idea. Who is going to want to print things at home?”

  • HP and others are glad they didn’t listen to market pundits who said home printers would never be a big market. Later, considering the turn toward digital information, they predicted doom again. Why would people continue to print things?
  •  Turns out personal printing has continued to grow because, interestingly, even in the digital world, people like to print things, like photographs. I’d say that a couple billion personal printers sold over the years makes the category pretty successful.

“I can’t imagine that the benefits of digital cameras outweigh the benefits and quality of film.”

  • Kodak didn’t react quickly enough to consumer shift from film to digital camera solutions. Accordingly, they missed a huge market opportunity in favor of defending the company’s film consumables and processing business.
  • Kodak declared bankruptcy earlier this year, and the trustees have been selling its deep IP portfolio.
  • Turns out, Kodak actually invented their own nemesis: a digital camera prototype, back in 1975. But even pioneers can make mistakes. Kodak was used to making money on film not cameras. Click here for more information.

“You want to make a thing called an iPhone, what in the hell is that?”

  • What if Apple’s Board said to Steve Jobs, “Sorry, you are nuts, a creative genius, but nuts. No one believes there’s a market for an uncategorizable device that marketed as a phone (but really isn’t a very good one), has a camera, can store music, can run applications, etc. Oh, and by the way, Steve, why is this iPhone thing going to be any better than that turd of a device called the Newton?” Followed by something like, “And you want to over-invest in design and not use the cheapest materials, and you want to roll out an entirely new business model for music, and you are going to convince the music companies that downloads will work for them.”
  • Of course history has proven Steve Jobs right, propelling Apple to the highest market capitalization in the world, and the new iPhone 5 is already projected to be another record-shattering device.
  • Let’s not forget the same can be said for the iPad, but in that case others had (unsuccessfully) done it before.
  • “It’s really hard to design products by focus groups. A lot of times, people don’t know what they want until you show it to them.” – Steve Jobs (May 1998, BusinessWeek)
  • “Innovation has nothing to do with how many R&D dollars you have. When Apple came up with the Mac, IBM was spending at least 100 times more on R&D. It’s not about money. It’s about the people you have, how you’re led, and how much you get it.” – Steve Jobs (November 1998, Fortune)

“The Wii has the worst graphics ever. It is simply not competitive with the existing gaming systems in the market.”

  • “Nintendo must be looking backward, thinking that history is going to repeat itself, over and over again. Sorry guys, the rest of us are looking for improvement. Hence why the other two 7th generation systems are so visually appealing with improved graphics and HD/Blu-Ray options. Colorful bubbly shaped characters are for little children and cartoons.” – From the www.wiisucks.com website.
  • Yet nearly 97 million Wii consoles have been sold through the middle of 2012.
  • The Wii was ultimately widely successful from its launch in late 2006, in spite of poor graphics, because of the entirely new and fresh way of interacting with games. It turned gaming into a truly social activity that spanned generations.

Sure, there are plenty of failures and examples that fit into a hype cycle. For example, you certainly wouldn’t want to be the Dutch tulip grower who, on April 26, 1637, paid “two wagon loads of wheat, four loads of rye, four fat oxen, eight fat swine, twelve fat sheep, two hogheads of wine, four barrels of beer, two barrels of butter, 1000 pounds of cheese, a marriage bed with lines and a sizeable wagon” for one tulip bulb. Likewise, Betamax, despite being better technically, lost out to the VHS format. But even in the face of failure, I’ll bet the innovators, like the Betamax engineers at Sony, believed up to (and even past) the bitter end. I bet they still believe that theirs was better.

Sometimes explosive growth takes a convergence of technology and market acceptance. Sometimes price changes enable a new class of purchasers. Sometimes it is just blind luck. Sometimes the people promoting change just have to believe and convince others as well.

For those of you who know me, I am a fairly conservative guy in many areas. In a self-assessment I’d say my skill set is more in tune with execution rather than pure innovation.

light-shade-3d-print.pngI do believe, however, that we are at unique place in time, a time in which technology, market acceptance and demand are converging to catalyze change in the 3D capture and 3D printing space, carrying the space down-market from current industrial use cases. In the future, design professionals, students and children will be able to easily take innovation and inspiration from the real articles and objects that surround them, mash them up, and create entirely new designs along with a new creation and innovation cycle. What is needed is a simple-to-use, integrated end-to-end solution that allows people to easily capture, interact with, modify, manipulate and reproduce real-world 3D content. I believe we are not too far away.

(Image: 3D printed lamp shade. Credit: Materialise (http://www.flickr.com/photos/imaterialise/)

I was prroud to work at a company that is focused on this space and powered by a team of passionate, creative individuals. Ultimately, I could be proven wrong in my belief that the democratization of reality-capture technologies, interaction tools and 3D printing devices will shift the market and change our very lifestyles beyond the manufacturing ecosystem that already profitably leverages these technologies.

But even if I’m wrong, I’ll still believe.

You can read a shorter version of this post on the Materialise Blog at: http://i.materialise.com/blog/

[This blog was originally published on October 11th, 2012 – Gartner has subsequently published a revised Hype Cycle curve which separates and differentiates consumer 3D printing from enterprise use of 3D printing]

A renewed call for a harmonized “Community” License for 3D Content.

In a two-part blog in March 2012, I made the argument that a “Community” license type is required for 3D content.

In these blog posts I first gave a little background on applicable intellectual property principles, reviewed how service providers were addressing these issues currently, and then made a proposal for what can and should be done in order to remove at least some of the legal grayness that exists (and that varies substantially from country to country).  I believe that it doesn’t matter which side of the argument you are on (e.g., intellectual property protection is already overbroad versus rights holders who believe more protection is needed), the conclusion is still the same: we have a looming problem.

Since writing those entries the need for a harmonized approach has only grown. The pace at which the capture/create/modify/make ecosystem is changing is only accelerating. New market entrants are pushing the boundaries of content acquisition, while established players are moving down market with new consumer-oriented 3D printers intended for consumer/hobbyist use. Start-up companies are developing new technologies and approaches to round-trip data from the physical to digital and back to physical again. These are exciting times, and while intellectual property questions should certainly not stifle innovation or the pace of change, a framework should be established now for how to address issues that have arisen and will inevitably arise in the future.

In today’s update I review and summarize the terms of service applicable to Autodesk’s 123D Catch and Kraftwurx, and I refresh the reviews I have completed previously. I encourage people to read the prior blog posts in conjunction with this one. One macro-level trend that I did not note previously is that many of the sites restrict the use of downloaded content solely for non-commercial purposes. While on the one hand this might be understandable from the perspective of the site and content owner, from the perspective of the content user, this is perhaps an unexpected “gotcha,” which makes them unwitting copyright infringers if they use downloaded content as part of a commercial endeavor.

Review of Services

123D Catch

For those of who you do not know, 123D Catch is an Autodesk photogrammetry application (consisting of a client application, whether on a desktop, phone or otherwise) and a web service for the creation of 3D models from uploaded photographs. It is the content capture piece of the 123D product family, descriptions of which can be found here: http://www.123dapp.com/create.

The terms of service can be found here: http://sitesupport.123dapp.com/entries/20059427-terms-of-service (last updated July 26th, 2012). Other terms of service are incorporated by reference into this agreement. They can be found here: http://usa.autodesk.com/adsk/servlet/item?siteID=123112&id=17784802.

The site provides for a “Gallery” function where people can upload and share models (see:http://www.123dapp.com/Gallery/) as well as connect to various fabrication services (i.e., currently laser cutting and 3D printing). iMaterialise, Ponoko, and Shapeways, among others, are listed as partners.

The terms of service applicable to 123Dapp.com (the location of the cloud service that provides support for 123D Catch and other Autodesk applications) incorporate a CCL (Creative Commons License) model for content shared amongst users but which differs when defining Autodesk’s rights. Section 3 (“Your Content”) outlines the allocation of IP rights in the service. It generally provides that if you agree to upload content to a public area of the service, you are allowing Autodesk to use that uploaded content for whatever purpose they desire (commercial, non-commercial, or otherwise). See specifically Section 3(b)(i). This section also provides that by uploading the content you warrant that you have all rights to do so.

Section 3(b)(ii) outlines the rights granted to other users of the service (and not to Autodesk) and provides that if you upload content to a public area of the site, you have agreed to grant other users of the service the right to re-distribute, re-use, modify, adapt, create derivative works, etc. for non-commercial purposes based on your uploaded publicly shared content in a manner that is consistent with the Creative Commons Attribution Non-Commercial Share Alike License (see: http://creativecommons.org/licenses/by-nc-sa/3.0/).

It’s interesting that Autodesk reserves the right to make commercial use of uploaded “public” content but restricts use to “non-commercial” purposes by other users’ (by incorporation of the CC BY-NC-SA 3.0) license schemes.

Kraftwurx

I apologize for not covering Kraftwurx in my initial run through of various service providers. Kraftwurx positions itself as “the Original community & marketplace for quality custom products, printed in 3D.” Kraftwurx is based in Houston, Texas, and the company’s vision “is to empower consumers for mass customization by 3D printing anything they could imagine.” Kraftwurx describes itself as both a “marketplace and community.”

The Kraftwurx terms can be found here under the heading “Non-Exclusive License”:http://www.kraftwurx.com/nonexclusive-license-agreement as well as here: http://www.kraftwurx.com/terms-of-service defining terms of service.

According to the Terms of Service (ToS), by uploading content to Kraftwurx you agree that it does not violate the intellectual property rights of third parties. Per the Terms of Service, under the heading of “Content,” while Kraftwurx disclaims ownership rights of uploaded content, Kraftwurx claims a broad license grant to uploaded content, without restriction to commercial or non-commercial purposes and in perpetuity.

The allocation of rights in the “Non-Exclusive License” relating to “Designs” is inconsistent with those in the ToS.  Here, under the section titled “Licenses,” Kraftwurx claims a license to publicly display, market, etc. the user-submitted designs for the purposes of creating products, and the user has the right to remove the design at any time (provided that Kraftwurx can continue to use it for marketing or other purposes, just not production). The applicable Royalty Rate can be set by the User (either as a % or a fixed dollar amount)

Under the section titled “Representations” at the very end of the “Non-Exclusive License,” a user must represent among other things that: (a) he/she owns the design or it is in the public domain; (b) no one else claims ownership in the design (knowledge qualified); (c) the design doesn’t infringe on the moral, privacy or other rights of third parties; and (d) Kraftwurx can produce physical representations of the design without infringing on the rights of third parties or requiring permission to do so.

Finally, Kraftwurx has a DMCA (Digital Millennium Copyright Act) notice here –http://www.kraftwurx.com/copyright-a-intellectual-property. Note that the DMCA, or safe harbors, would also apply to 3D printing service providers.

Trimble (was Google) 3D Warehouse

In April 2012 Trimble purchased the SketchUp business from Google – including the 3D Warehouse – along with a curious allocation of rights to content that had already been submitted (with a closing that apparently happened on or about June 1st, 2012).  See: http://www.sketchup.com/intl/en/usernotice.html. Continuing use and access to the 3D Warehouse will now be governed by Trimble’s terms, a preliminary set of which were linked through in the “User Notice” referenced above. However, the link resolves to an old set of Google 3D Warehouse terms (which are unchanged), see: www.sketchup.com/intl/en/3dwh/preview_tos.html.

Ponoko

No material changes noted. As I described before, Ponoko has clearly thought through the implications of IP on the capture or create/modify/make ecosystem with a very clear and explicit licensing scheme.

Thingiverse

No material changes noted. As with Ponoko, Thingiverse uses a range of Creative Commons licenses as part of a drop-down license picker.

There is some current controversy about whether Makerbot is moving to a closed-source model, and people have reviewed the ToS, found them objectionable, and have stated that the terms are recently changed (implying that this is consistent with some broader Makerbot business pivot to a closed-source model).

I can confirm that the ToS have not changed since at least February 12, 2012 (I have a hard copy print out of them).

GrabCAD

No material changes noted. Section 4 of their terms of service still provides that uploaded content may still only be used for “non-commercial” purposes – obviously a significant limitation if the user/contributor is looking to use or submit content as part of a commercial or fee-paying project.

Sculpteo

No material changes noted.

Shapeways

No material changes noted. Shapeways marks the license with the last change date, and this was February 2012.

Cubify (from 3D Systems)

Since the last review, 3D Systems has modified, cleaned up and tweaked the Cubify landing pages. When previously reviewed, Cubify was in the process of launching. The Cubify terms of service can now be foundhttp://cubify.com/info/learn/terms_of_service.aspx.

Substantively the terms are similar as before. Cubify will allow for the download of hosted models under several license types, see Section 6 of the Terms of Service, specifically Sections 5(d), (e), and (f).  These are a “standard royalty free license,” “editorial license only” and “royalty free license with model release.” In Section 6(7) 3D Systems disclaims IP responsibility for uploaded content and content delivered from third-party services and sources.

Section 7 now specifically covers Intellectual Property. Section 7(1) requires that a user only upload content that it owns the rights to (and agrees not to upload content that might be subject to third-party claims). Section 7(2) outlines rights granted to 3D Systems in order to display, market and ultimately produce content that has been uploaded, and it also grants third parties the right to view the content (in order to make a purchase decision, for example). Section 7(3) provides that if a user downloads and uses content from the site, they are SOLEY responsible for any intellectual property and other legal or clearance issues – 3D Systems does not represent that the content hosted has been fully cleared or is moral/legal to produce in the jurisdiction of the person who downloads it.

To be able to become a contributor, a user must become a “Cubify Artist,” see:http://cubify.com/learn/faq.aspx#CubifyArtist.

iMaterialize (from Materialise) 

No material changes noted.

Summary of Approaches

ccl-3dip.png

This blog was originally published on September 24th, 2012.

The $40 (or $20) million helmet. Or not.

A Refresher

As I’ve blogged about previously, copyright protects a wide variety of items – regardless of whether 2D or 3D, so long as that content is not “functional” or “utilitarian”, and is original.  Ideas are not protectable, but the expression of ideas generally are.  In case you missed that blog entry (and you will want to read before continuing), see: http://www.geomagic.com/en/community/beyond-the-box/the-tale-of-two-spoons-and-copyright-law/

Back to Our Very Expensive Helmet

Picture from http://www.bbc.co.uk/news/uk-12910683

Andrew Ainsworth thought that he was doing nothing wrong. In 2002 he started selling helmets and body pieces from Stormtrooper uniforms to help cover schooling costs.  He had previously done work for Lucasfilm and helped to create the original Stormtrooper costumes for the Star Wars film.  He had been asked by George Lucas at Elstree Studios to make a prototype based on original drawings from Ralph McQuarry.  After two days and a prototype Lucas allegedly ordered 50.  When a helmet and a few other pieces pulled in nearly $100,000 for a sale at Christie’s he knew he was on to something.  He dug out the old molds and started selling them.  After roughly 20 had been sold in the United States, someone else noticed – namely Lucasfilm.

Lucasfilm sued Shepperton Design Studios Limited, and Andrew Ainsworth, in the United States District Court for the Central District of California on May 6th 2005.  The complaint alleged that Mr. Ainsworth had violated Lucasfilm’s copyrights in their Stormtrooper and TIE fighter pilot characters as well as Lucasfilm’s “Imperial” logo trademark.

Plaintiff alleges that Defendants copies Plaintiff’s copyrighted artwork and Plaintiff’s fanciful characters in Plaintiff’s 1977 Star Wars Film, that Defendants prepared three-dimensional copies of Plaintiff’s depictions, that Defendants publicly distributed those copies and that Defendants also publicly display them on Defendants’ website, all without Plaintiff’s consent.

In September 20th 2006 the United States District Court granted a default judgment to Lucasfilm and awarded in excess of $40 million1 in damages (for $5M for copyright, $37.5M for trademark infringement as well as an award of attorney’s fees).  But there was more than a little problem.  Because Mr. Ainsworth had no assets in the United States, Lucasfilm had to take their judgment to the UK courts for enforcement.

Across the Pond We Go

Lucasfilm wanted to enforce the award in the UK, and so it went to enforce its judgment.  Seems simple right?   Lucasfilm owned a valid copyright in the artistic/sculptural StormTrooper uniforms, Ainsworth violated it by creating copies or derivative works, and he was not authorized to do so.   Open and shut case, right?

Wrong.

Something strange happened in the U.K. courts.

First, lower courts held that Lucasfilm couldn’t enforce the California judgment. They also found that uniforms and helmets were not protectable by copyright because they were not sculptures — and even though they were copies Ainsworth had other defenses – all of Lucasfilm’s claims in the U.K. courts were dismissed.

Then the U.K. Supreme Court took up consideration of the case and handed down a fairly surprising ruling.  On July 27th, 2011 they upheld the lower court rulings that the Stormtrooper uniforms were not in fact artistic or sculptural elements protectable by copyright, but instead, they were utilitarian and functional objects because they were a necessary element of the film that was being produced.  They were a “mixture of costume and prop.” As a result, they were not protectable by copyright.  They did this while also resolving an outstanding controversy of whether U.K. courts could decide if non-U.K. copyrights had been infringed.

My Personal View

The U.K. Supreme Court got it wrong.  While you can’t help to personally feel for Mr. Ainsworth in his battle with Lucasfilm, the logic is twisted in achieving their desired result.  For the U.K. Supreme Court’s analysis on why the uniform and helmet were not “sculptures” under U.K. law, see the discussion starting at Section 28 in the Court’s opinion.  Much of the discussion and focus is to the particular production methods used to make the helmet and uniform rather than what is really at the heart of the matter – is it artistic or creative however created?  Read it and form your own opinion.

Lucasfilm issued a statement after the U.K. Supreme Court ruling stating in part that the ruling “maintains an anomaly of British copyright law under which the creative and highly artistic works made for use in films – which are protected by the copyright laws of virtually every other country in the world – may not be entitled to copyright protection in the U.K.”  I agree.

The Implications Are Strange

Disagreeing with the U.K. Supreme Court’s conclusion doesn’t take away from the fact that it is valid law in the U.K.

If the frame of reference is a fantasy or virtual world, or a movie, or even perhaps a play, props are absolutely functional – they are required to produce or deliver the creative work.  In that context, a Stormtrooper helmet is “functional.”  Outside of that frame of reference (i.e. the real world we live in) individual elements appear to be distinctive, creative works in their own right.  Outside of the Star Wars film universe – who can really deny or argue that the uniforms and helmets were creative and therefore protectable?

How would the U.K. courts ruled if the helmets and uniforms in question had not been used in a movie? Quite differently I suppose.

So there we have it.  The same Stormtrooper uniform. The same helmets.  Completely different conclusions.  A United States court finds that they are protectable by copyright and awards millions in dollars of damages. The U.K. Supreme Court finds that they are not protectable by copyright.  Uh oh.

What is truly interesting is to consider how this ruling will apply to objects which might be reproducible by 3D printers – particularly as it relates to elements used in films or live stage productions.  For example, the “cube” in the Super8 film might be viewed as content protectable by copyright in the United States but in the UK viewed as utilitarian (because a necessary element of the film it was used in).

For more information, see the following:

Default Judgment of the United States District Court in the Central District of California in the matter of Lucasfilm Ltd. V. Shepperton Design Studios Limited and Andrew Ainsworth

http://www.supremecourt.gov.uk/docs/UKSC_2010_0015_Judgment.pdf (the U.K. Supreme Court Judgment in Lucas Films Limited and others (Appellants) v. Ainsworth and another (Respondents) – all forty glorious pages of it!

1 It is worth noting that in various press articles, as well as the UK opinions, that the damage award under the Default Judgment was $20 million. This is incorrect.  On the Lahnam Act (trademark) claims the court awarded $2.5 million in license fees and $10 million for damage to reputation and goodwill and then tripled those damages.  This would result in $37.5 million for the Lanham Act claims alone.

This blog was originally published on May 24th, 2012.

The call for a harmonized “Community” License for 3D Content – Part II

Ponoko, Cubify, 3DWarehouse, oh my!

Let’s start first by reviewing one of the older services available to host 3D content and see how they address the issue. I am assuming for purposes of this review that all of the terms of service are in fact enforceable (which might be a big assumption!).

Google 3D Warehouse

Google has been publicly hosting and re-distributing 3D content (primarily in their .SKP file format) for a long time by Internet standards, since at least 2006.   Have you ever thought to read the Google terms applicable to the 3DWarehouse service?  If not, you can find them at:http://sketchup.google.com/intl/en/3dwh/tos.html.

Under Section 5.7.3, you agree not to upload any content which violates the IP of a third party.  That part is not necessarily surprising.  Google wants you (as the user) to be responsible for the content you post.

What might be surprising is that if you do decide to upload content to the service that under Section 11.1(b) you grant Google “the perpetual, sublicensable, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any [c]ontent or derivative works thereof which you submit, post or display on or through, the [s]ervices.”  This license grant is of the typical type associated with works protected by copyright (but not necessarily other IP types). By virtue of Section 11.2, you grant Google the right to extend this right to other companies or organizations which use the services, and under Section 11.1(c), you grant these rights to other users of the services.   Under Section 11.6 you warrant that you have the right to grant the licenses in this section.

While you are not restricted from providing the content you upload to the service to others under different terms (see Section 11.3(a)) even if you remove the content from the service and terminate your relationship with Google, the license granted in Section 11 continues.

OK, as a practical matter, what does this mean?

It means that once you upload content, you have granted virtually an unlimited right for Google, and third parties, to distribute your work, as well as to create derivative works, without any clear attribution rights back to you.  Google does not provide a selective licensing mechanism to allow people who upload content to pick how much (or how little) of their rights they want to grant or extend to downstream users.  If it turns out that you uploaded something that you didn’t own the rights to, by operation of Section 5.7.3 and 11.6 you could be found to be in breach of contract with Google (as well as subject to an independent infringement action from the actual rights holder).

Ponoko

Ponoko has clearly thought through the implications of IP on the capture or create/modify/make ecosystem.  They walk contributors through a list of Creative Commons license types (for an example see herehttp://www.ponoko.com/make-and-sell/sell-eps) depending on how the user chooses to sell products or product plans.  The Ponoko terms of use can be found here – http://www.ponoko.com/about/terms-and-conditions and a statement on intellectual property here http://www.ponoko.com/about/copyright.

Unlike the Google approach, Ponoko makes it clear that they do not obtain any underlying rights to objects which are uploaded to their service other than a right to display them to market the objects for sale.  Even this right expires six (6) months after the item has first been uploaded.

Thingiverse

Thingiverse  is the community hosting site for 3D printable content run by Makerbot Industries.  The terms of service can be found here – http://www.thingiverse.com/legal.   Thingiverse follows the same general scheme as Ponoko.  In addition to the limited right granted to Thingiverse necessary to incorporate contributed content into the site and services (found in Section 3.2), the contributor is asked to select which Creative Commons license type they want to share their content under, see Section 3.3.  Thingiverse’s DMCA take-down notice can be found here – http://www.thingiverse.com/legal/ip-policy.

GrabCAD

GrabCAD bills itself as a community site offering 3D models for mechanical engineers (and roughly 29K models in early March 2012).  GrabCAD’s terms of service can be found here: http://grabcad.com/terms.

GrabCAD generally follows the Google model, and places the burden on IP clearance issues and concerns with the content contributor, see Section 2 “Responsibility of Contributors.”  GrabCAD does include a DMCA notice as well at Section 7.

Shapeways

Shapeways provides a shop to print existing uploaded 3D content, a pathway for “advanced” users to upload their own models for production, as well as a pathway for “Easy Creators” which allows for the simplified personalization of stock content (suck as cuff links, customized sake set, etc.), see:http://www.shapeways.com/creator/.

Shapeways’ terms and conditions, last updated in February 2012, can be found here –http://www.shapeways.com/terms_and_conditions.  See the subsections titled “user generated content” and “intellectual property rights in the 3D design”.  Except for 3D Designs, if you upload content to the Shapeways site you grant Shapeways a royalty-free right to use, including create derivative works, based on the uploaded content.  By uploading it, the contributor represents that the content does not infringe any other IP rights. This is consistent with the Google approach.

With respect to uploaded 3D designs, the contributor grants Shapeways the limited right to use the design to manufacture the model to fulfill legitimate orders as well as to display it on the website.  It is possible to change the rights allocation so that the model is only displayed on the website (but cannot be produced).  Shapeways approach to uploaded 3D designs is similar to that of Ponoko.

Cubify (from 3D Systems)

Cubify is in the process of launching – they don’t expect to launch until later in 2012.  Their current terms of service can be found http://cubify.com/info/service.aspx and http://cubify.com/learn/faq.aspx#BuyersLicense.

Cubify will allow for the download of hosted models under several license types, see Section 5 of the Terms of Service, specifically Sections 5(d), (e), and (f).  These are a “standard royalty free license”, and “editorial license only” and “royalty free license with model release.”  To be able to become a contributor, a user must become a “Cubify Artist”, see: http://cubify.com/learn/faq.aspx#CubifyArtist.

iMaterialize (from Materialise) 

iMaterialize is the service run by Materialise with the primary focus of providing a location for designers (mostly well known, rather than community developed) to host unique, 3D printable objects.  The models themselves are not downloadable so that derivative works can be made from them.  The FAQ is here: http://imaterialize.com/faqand the legal terms are found here: http://i.materialise.com/legal/terms.  Whether this site develops over time to be more like Ponoko or Thingiverse remains to be seen.

The FAQ, in refreshing non-legalese, states that: “The person who placed the initial order is considered the owner of the model and has the IP rights for that model. By accepting the vendor terms and conditions, you give i.materialise the right to produce copies of the model in return for a designer’s fee. Normally, the owner is also the designer. That is why we call it a designer’s fee. If you didn’t design the model yourself, but want a special designer’s page for the person who did, please contact us for permission to set up a designer page for this designer.”

The iMaterialize website has a very clean UI in order for a designer to set-up a virtual shop, see:http://i.materialise.com/blog/entry/how-to-open-your-own-shop-at-i-materialise.

Summary of Approaches

Service License Type Other notable
Google 3Dwarehouse Unique Might be surprising to learn that once uploaded you grant Google a right to share and even commercialize with others.
Ponoko CCL Elegant drop down license “picker” as part of upload process.
Cubify Unique New site and service, full terms likely under development.  Unclear why 3D Systems did not gravitate towards the CCL scheme rather than developing their own nomenclature.
Shapeways Unique Shapeways, in its terms and conditions, makes explicit distinctions between user uploaded content which is a 3D model versus that which is not.
GrabCAD Unique Contributed content is intended for “non-commercial” use unless otherwise specified by the contributor.  Unclear specifically then what an engineer who downloads content is allowed to do with it.   See Section 4.
Thingiverse CCL Thingiverse expressly states that they will share the CCL selected by the contributor with other sites, but that they are not responsible of that secondary site or service fails to adhere to those terms, see the last sentence of Section 3.2
iMaterialise Unique Not a hosting and community site per se.  Intended to provide a commercialization avenue for unique creations from designers.  Very interesting material selector pages –http://imaterialize.com/materials/compare.  Geared towards creating a physical model, not facilitating the sharing and modification of models for downstream uses.

Various Approaches and Interests

As you can see from our view from the trenches, vendors are approaching IP concerns in the create-capture/modify/make ecosystem differently.

This is an area that the folks at Creative Commons are clearly watching (the folks behind the CCL), see the post titled “CC and 3D Printing Community.”  http://creativecommons.org/weblog/entry/30605.

The challenge with the current CC licensing schemes is that they were never intended to cover functional content (that which might be covered by IP rights other than copyright).    As the blog above notes –

With the exception of CC0, the Creative Commons licenses are only for granting permissions to use non-software works. The worlds of software and engineering have additional concerns outside of the scope of what is addressed by the CC licenses. 3D printing is a new medium which encompasses both the creative domains of culture and engineering, and often 3D printed works do not fall neatly into either category.

So what does this mean?  Well, basically, that despite best intentions, services that have tried to create a structured approach to IP issues in the 3D printing community by relying on the CCL scheme have done so prematurely.  Creative Commons does not apparently believe that the CCL scheme, as currently drafted, “works” here.  Uh oh and oh no.

What is Needed?

An integrated, harmonized approach to dealing with all IP considerations in the create-capture/modify/make ecosystem is required.

This is a topic which is already being actively examined for remedy in the CCL 4.0 release cycle.http://wiki.creativecommons.org/4.0/Games_3d_printing_and_functional_content.  Far beyond me (as there are domain and policy experts considering the interplay of these various schemes) to make a specific, actionable, proposal – other than to highlight that one is in fact desperately needed.  One that the current stakeholders can work together to formulate and adopt from a policy perspective – and then implement as close to uniformly as possible in their offerings.

The answer may come in the form of a new CCL type (but as the above discussion highlights, there are some distinct incompatibilities between the CCL scheme entirely and combined functional and creative works).  The answer may also come in the form of a new rights scheme applicable broadly to this type of content.   What should not acceptable to anyone is where we currently are – a distinct, explicit shade of grey.

This blog was originally posted on March 22nd, 2012.