Shapeways

Trademark and Copyright Safe Harbors

On Friday we, along with our colleagues at Etsy, Foursquare, Kickstarter, Makerbot, and Stratasys, filed comments with the United States Copyright Office regarding how copyright works online.  The Copyright Office had requested the comments as part of a study it is doing in the laws that allow websites like ours to let anyone with an account share their work with the world.

Specifically, the study was on what is known as Section 512 of the Digital Millennium Copyright Act (DMCA).  This provision is what gives structure to our copyright complaint process.

The provision is important, but imperfect. It was drafted in 1998 – eons ago in internet time – and it is good that the Copyright Office is taking the opportunity to ask questions about how the provision is working in the real world.

While there are plenty of things that we could have mentioned in our comments, our focus was not strictly on copyright.  Instead, we collectively decided to explain to the Copyright Office how trademark is impacting copyright online.

We have raised this issue before.  Back in October, as part of a similar group we filed a similar set of comments with the White House Intellectual Property Coordinator. We also highlighted the impact that trademark complaints have in the Shapeways transparency report released in February.

At its core, our concern is that Section 512 establishes a carefully calibrated balance between users, rightsholders, and online platforms.  It incorporates checks and balances designed to give everyone an opportunity to be treated fairly.

However, the entire system is limited to the world of copyright.  When rightsholders incorporate trademark claims in their takedown requests – something that, as we highlight in the transparency report, happens often – those balances disappear.  As a result, no review of the Section 512 system is completely without an understanding of the broader context that it operates within.

This is not the last word, or the only word, on this issue.  As mentioned earlier, even the parts of the Section 512 system that are directly tied to copyright are imperfect.  Many of the other comments submitted to the Copyright Office draw attention to those imperfections. Similarly, the just released study by Jennifer Urban, Joe Karaganis, and Briana Schofield on this process contributes important data about how the system operates day-to-day to the conversation.  If you are interested in this issue it provides a fantastic resource.

For now we will continue to operate within the current legal structures and balance the rights of everyone connected to the Shapeways platform.  At the same time, we will work to make sure that policymakers understand how the systems designed in law operate in practice.  As with the previous comment, we hope that this provides an opportunity to policymakers to reexamine the scope of safe harbors and reevaluate them in light of the goals they were intended to achieve.

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