IP in the Coming World of Distributed Manufacturing: Redux

Late in 2014 I wrote an article outlining why I felt that the transformational changes occurring on both “ends” of the 3D ecosystem were going to force a re-think of the ways that 3D content creators, owners and consumers would capture, interact with, and perhaps even make physical 3D data.  These changes will catalyze a UGC content explosion – forever changing the ways that brands interact with consumers and the ways consumers chose to personalize, and then manufacture, the goods that are relevant to them.

There are no doubt significant technical hurdles which remain in realizing that future.   I am confident that they will be overcome in time.  In addition to the broad question of how the metes and bounds of intellectual property protection will be stretched in the face of these new technologies, I examined some key tactical issues which needed to be addressed.  These were:

IP-for-3D-printing-source3

 

As we exit 2015, let’s take a look at each of these in turn and see what, if anything, has changed in the previous twelve months.

De-facto and proposed new manufacturing file formats do not encapsulate intellectual property information

After outlining the challenges with STL and AMF, I proposed that was needed was:

A file format (AMF or an alternate) for manufacturing which specifically allow for metadata containers to be encapsulated in the file itself.  These data containers can hold information about the content of the file such that, to a large extent, ownership and license rights could be self-describing.   An example of this is the ID3 metadata tagging system for MP3 files.   Of course the presence of tag information alone is not intended to prevent piracy (i.e. like a DRM implementation would be), but it certainly makes it easier for content creators and consumers alike to organize and categorize content, obtain and track license rights, etc.

In late April 2015, the 3MF Consortium was launched by seven companies in the 3D printing ecosystem (Autodesk, Dassault, FIT AG/netfabb (now part of Autodesk), HP, Microsoft, Shapeways and SLM Solutions Group) releasing the “3D Manufacturing Format (3MF) specification, which allows design applications to send full-fidelity 3D models to a mix of other applications, platforms, services and printers.”  3D Systems, Materialise and Stratasys have since joined, the most current membership list can be found here.   While launched under the umbrella of an industry wide consortium, the genesis for 3MF came from Microsoft – concluding that none of the existing formats worked (or could be made to work in a timely fashion) sufficiently well to support a growing ecosystems of 3D content creators, materials and devices.

Adrian Lannin, the Executive Director of the 3MF Consortium (and also Group Product Manager at Microsoft) gave a great presentation (video here) on the genesis of the 3MF Consortium, and the challenges they are attempting to solve, at the TCT Show in mid-October 2015.

The specification for the 3MF format has been published here.  A direct link to the published 1.01 version of specification can be found here.  In addition to attempting to solve some of the current interoperability and functionality issues with the current file formats, the 3MF Specification provides a “hook” to inject IP data into the 3MF package via an extension.

The specification does provide for optional package elements including digital signatures (see figure 2-1), more fully described in Section 6.1.  An extension to the 3MF format covering materials and properties can be found here.

Table 8-1 of the 3MF Specification makes clear that in the context of a model, the following are valid metadata names:

  • Title
  • Designer
  • Description
  • Copyright
  • LicenseTerms
  • Rating
  • CreationDate
  • ModificationDate

The content block associated to any of these metadata names can be any string of data.  Looks like ID3 tags for MP3 to me!  A separate extension specifically addressing ownership data, license rights, etc. could be developed providing for more granularity than the current mechanism.

While it will likely take time for 3MF to displace STL based workflows, the 3MF Specification seems to define the necessary container into which rights holder information can be injected and persisted throughout the manufacturing process.

Inconsistent, and perhaps even inappropriate, licensing schemes used for 3D data

After reviewing the multitude of ways that content creators and rights holders were attempting to protect and license their works, I concluded that what was needed was:

An integrated, harmonized licensing scheme addressing all of the intellectual property rights impacted in the digital manufacturing ecosystem – drafted in a way that non-lawyers can read and clearly understand them.  This is no small project, but needs to be done. Harmonization would simplify the granting and tracking of license rights (assuming stakeholders in the ecosystem helped to draft and use those terms) and could be implemented in conjunction with the file format metadata concept described earlier.

Unfortunately, not a lot of progress has yet been made in this regard.

As I outlined first in 2012, I continue to believe that there is a generalized, misplaced, widespread, reliance on the Creative Commons license framework for digital content which is to be manufactured into physical items.    These licenses, while incredibly useful, only address works protected by copyright – and were originally intended to grant copyright permissions in non-software works to the public.

The Creative Commons Attribution 4.0 International Public License framework specifically excludes trademark and patent licensing (see Section 2(b)(2)) as well as ability to collect royalties (See Section 2(b)(3)) making the framework generally inapplicable for use in all licensing schemes where the rightsholders wish to be paid upon the exercise of license rights.   This shouldn’t be surprising to anyone who knows why the Creative Commons licensing scheme was originally developed – but I suspect it is nevertheless surprising to folks who maybe relying on the framework as the basis for commercial transactions requiring royalties.  Even those who are properly using the CC scheme within its intended purpose may have compliance challenges when licenses requiring attribution are implemented in a 3D printing workflow.

The Creative Commons, no doubt, understands the complexity, and potential ambiguities, of using the current CC licensing schemes for 3D printing workflows.

Safe-harbor provisions of the DMCA apply only to copyright infringement

It is possible, via secondary or vicarious liability, to be held legally responsible for intellectual property infringement even if you did not directly commit acts of infringement.   After examining the Digital Millennium Copyright Act (the “DMCA”) and the “safe harbor” it potentially provides to service providers for copyright infringement (assuming they comply with other elements of the law), I concluded that what was needed was an extension of the concepts in the DMCA to cover the broader bucket of intellectual property rights beyond copyright, most notably, providing protection against dubious trademark infringement claims.

On September 1st, 2015, Danny Marti, the U.S. Intellectual Property Enforcement Coordinator (USIPC) at the White House Office of Management and Budget, solicited comments from interested parties in the Federal Register on the development of the 2016-2019 Joint Strategic Plan on Intellectual Property Enforcement.   Presumably the primary goal was to solicit feedback on intellectual property infringement enforcement priorities.  Several parties used it as an opportunity to provide public comment on the necessity of extending DMCA like “safe harbor” protections to trademark infringement claims.

On October 16th, 2015, Etsy, Shapeways, Foursquare, Kickstarter, and Meetup (describing themselves as “online service providers (OSPs) that connect millions of creators, designers, and small business owners to each other, to their customers, and to the world”) provided comments in response to the USIPC request, which can be found here.   After walking through some representative examples across their businesses, and making the argument that the lack of a notice/counter-notice process for trademark infringement claims can sometimes be chilling, the commentators ultimately conclude that it is time to consider expanding safe harbors:

While the benefits of statutory safe harbors are important, they are currently limited to disputes over copyright and claims covered by section 230 of the [Communications Decency Act]. No such protection exists for similarly problematic behavior with regard to trademark. As online content grows and brings about more disputes, it is necessary to consider expanding existing safe harbors or creating new ones for trademarks.

In the Matter of Development of the Joint Strategic Plan for Intellectual Property Enforcement – Comments of Etsy, Foursquare, Kickstarter, Meetup, and Shapeways, page 6, (October 16th, 2015).  [Note: Additional background on the examples given by the commentators can be found in an article posted on 3ders.org here.]

No doubt that in addition to the benefit to UGC creators on the “wrong” side of spurious trademark infringement claims, clearly, OSPs as a class, would benefit from expanded safe harbors covering potential trademark infringement claims.  That is certainly not a bad result as well.

We are at the dawn of the UGC economy – whether we are talking purely about digital goods, or those that are ultimately made physical. While any process to change the applicable law will be long and winding – the conversation needs to be started now. OSPs that serve the UGC economy need the business model certainty and protection from illegitimate copyright and trademark infringement claims that expanded safe harbors would bring.

This article was originally published on December 15th, 2015 at 3D Printing Industry

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