As you launch into a year of designing, engineering, and selling your work on Shapeways, our top legal brain, Michael Weinberg, takes on a sticky question around licensing and IP. How do you best protect your intellectual property – while avoiding the pitfalls of over- or under-licensing your work? Let us know what you think in the comments.
Is it Better to Over-License?
Licensing is all about setting rules around what people can and cannot do with the stuff you create. If you make something that is protected by copyright, someone else needs your permission in order to make a copy of it. A license is one legal form that permission can take. In many cases, the license essentially says “I give you permission to make a copy of my work as long as you do X”. X can be “pay me $50”. X can also be “give me attribution.”
Technically, the reason that someone else would need your permission to copy your work is because the work is protected by copyright. If they do not get your permission first, you could (at least in theory) sue them for copyright infringement.
There is a flip side to all of this. Not all work is protected by copyright. For example, functional objects are broadly excluded from copyright protection. That means that someone else can copy the functional item you made without legally needing your permission first. They do not have to worry about a license on your work because it is not legally enforceable. In fact, putting a license on a work that is not actually eligible for copyright protection can create all sorts of unintended problems.
All of which means that if you are creating something that is eligible for copyright protection and want to share it with the world, you should release it with a copyright license. And if you are creating something that is not eligible for copyright protection, you should not release it with a copyright license.
Which is all well and good if the thing you create fits obviously into a copyright/not-copyright category. But what if the thing’s copyright status is a bit more ambiguous? Should you err on the side of releasing it with a license just in case? Or should you err on the side of not using a license so you don’t unintentionally complicate things?
This is a harder question than you might expect and this blog post does not try to answer it. Instead, this blog post is designed to try and lay out the costs and benefits of each path. It explains what happens if you over-license by applying licenses where no copyright exists, as well as under-license by not applying a license where a copyright does exist. It then ends with a plea for your input. The norms around 3D printing, copyright, and licensing are still being established. Although this is an easy question to ignore, there is a benefit to the community coming together to try and come to consensus about expectations. We here at Shapeways are going to try and work on this in 2017, and in order for that to end well we will need your help.
Admittedly, this problem can be a bit abstract. In order to make the following a bit easier to follow, it will probably be helpful to have a specific product in mind. Ideally, it is an object where the copyright status (is it protected by copyright? Is it not protected by copyright?) is unclear. Since we have used this as an example of an object with an ambiguous copyright status in the past, let’s stick with studiogijs’ birdsnest eggcup.
(Note: none of this should be implied to attribute any sort of position about copyright to studiogijs. I am just using the eggcup as an example because it is a good illustration of the type of object that can trigger this kind of problem. The rest of this blog post also assumes that studiogijs wants to share the eggcup under some sort of sharing-oriented license such as Creative Commons, although the core issues are the same if studiogijs wanted to use a more restrictive license)
As you may recall, this eggcup combines functional (read: not eligible for copyright protection) elements that allow it to hold an egg and nonfunctional (read: eligible for copyright protection) elements that mimic the look of a birdsnest. Since there is currently a case being decided by the United States Supreme Court trying to determine if this sort of object that combines functional and nonfunctional elements is protected by copyright, it is probably safe to say that the copyright status of the eggcup is ambiguous.
That means it is not totally clear what happens if someone were to make a copy of the eggcup without studiogijs’ permission. If the eggcup is protected by copyright, making a copy without permission would be copyright infringement. If the eggcup is not protected by copyright, making a copy without permission would be (legally) allowed. In the first case – where copying without permission would be copyright infringement – a license would be really useful. In the second case – where copying without permission is totally legal – a license does not matter very much.
But studiogijs cannot do both. They either have to use a license or not use a license. That choice is not a simple as it might seem.
If it turns out that the cup is not protected by copyright, attaching copyright license to it would be an example of over-licensing. Conversely, if it turns out that the cup is protected by copyright, failing to attach a license would be an example of under-licensing. Since right now the copyright status of the cup is unclear and there isn’t an obvious right answer, designers like studiogijs need to decide if they are going to err on the side of over-licensing or under-licensing.
Here are some of the costs and benefits of either path:
Over-licensing would happen if the studiogijs decides to err on the side of the eggcup being protected by copyright and releases it under a copyright license. If it turns out the the eggcup is protected by copyright, “over-licensing” just becomes “licensing.” The eggcup is protected by copyright and there is a license governing how it can be used.
However, if it turns out that the eggcup is not protected by copyright, “over-licensing” becomes “putting a license where it does not belong.” From a legal standpoint such a license is essentially meaningless: without an underlying copyright, there is no actual punishment for violating the terms of the license. It can be ignored by downstream users. But even this legally meaningless license can send ripples out into the world.
Clear up Ambiguity (Good)
The most obvious impact of over-licensing is to remove ambiguity. While there are plenty of 3D printed things that fit cleanly into a “protected by copyright” and “not protected by copyright” dichotomy, there are also many that fall into a grey area. This grey area can exist because the rules around copyright today are unclear, or because there is a chance that the rules around copyright could evolve in the future.
In either case, adding a copyright license can act as a “just in case” tool. Studiogijs can use the license to assert “this eggcup is probably not protected by copyright, but if it is here’s a license that you can rely on.” That makes it easy for downstream users to confidently make copies of the eggcup under clear rules regardless of the ultimate answer to the “is this protected?” question.
Social Signaling (Good)
This benefit is easy for lawyers to overlook, but it is an important one. Licenses act at a legal level and also (probably more often) at a social level. A well expressed license is an easy way for studiogijs to tell the world “here is how I want you to use my work.” Even if that desire is not supported by the law it can still be quite important to the community. People in a community are motivated by all sorts of impulses not grounded in the formal legal system. If you are a fan of studiogijs you may care how they want people to think about copying the eggcup even if they cannot haul you into court for going against those wishes.
Restriction-Free Licenses Reduce the Downside
A license such as the Creative Commons Zero license would dedicate the eggcup to the public domain. It imposes no restrictions or obligations on the people who would make copies of the eggcup and makes no attempt to control their behavior. In this context, it tells the world “the eggcup is probably not protected by copyright, but if it is I hereby remove its copyright and make it freely available to everyone” while asking for nothing in return. If a studiogijs is relying on a truly restriction-free license in an ambiguous situation, the effect of the over-licensing with this type of restriction-free license is almost all benefit with no cost.
This calculation changes if studiogijs uses a conditional copyright license. Even a very permissive Creative Commons Attribution license could create problems because it places a condition on people who make copies of the eggcup (they are required to give attribution). In this context, such a license tells the world “the eggcup is probably not protected by copyright, but if it is you can use it as long as you give studiogijs credit as the creator.”
If the eggcup really is protected by copyright, such a license is great – all you need to do in order to make a copy is give studiogijs credit. But if the eggcup is not protected by copyright, a person who wants to make a copy might think they are required to credit studiogijs where no legally enforceable requirement exists. In other words, the license attempts to impose obligations on people who want to make copies without the actual ability to do so. That can create confusion and disappointment for everyone involved. All the more so if the relatively benign restriction to give the studiogijs credit is replaced with a more aggressive demand for a royalty payment.
Normalizing Expanded Copyright Protection (Bad)
In addition to possibly imposing obligations that are not legally enforceable, over-using copyright licenses can have a long term effect on how people understand the scope of copyright’s reach. It is not hard to see how “if you are unsure, slap a copyright license on it” can evolve into “the widespread use of copyright licenses in 3D printing means that all 3D printed stuff should be protected by copyright.” That could potentially remove countless objects from the public domain and expand the scope of copyright well beyond its intended bounds. Over-using copyright licenses could evolve into a situation where such licenses are actually legally required.
Under-licensing is the flip side. Instead of releasing the eggcup under a “just in case” copyright license, studiogijs could simply choose to not apply a license at all. In doing so studiogijs is gambling that the eggcup is not protected by copyright so the license is unnecessary.
Avoids Normalizing Expanded Copyright Protection (Good)
Not surprisingly, erring on the side of not using a license can have the opposite effect of erring on the side of using it. If in ambiguous situations there is no license, it will set an expectation that no license is necessary. This expectation could prevent the expansion of copyright to cover these edge cases. This could preserve the public domain as it is today.
Complicates Social Signaling
A license is not the only way to signal to people who want to make copies of the eggcup how studiogijs wants them to do so (if at all), but it is a clear and easy one. Without a license, would be copiers who want to take studiogijs’ wishes into account have to rely on other cues in order to determine how studiogijs might want or not want their work to be used.
Can Prevent Further Use (Bad)
The lack of a license, even in ambiguous situations, can create problems. If a person who wants to make a copy of the eggcup is risk-averse (or is having risk aversion pushed on them by their legal department), the lack of a license clearly granting them permission might prevent them from copying the eggcup even if there is no legal barrier to doing so. Additionally, if it turns out that there is some sort of latent copyright in the eggcup, the lack of a license could legally prevent people from copying it even if studiogijs wanted them to do so.
Which is Better?
I’m still not sure. Trying to weigh all of these factors will be part of 2017. If you have thoughts, please let me know. There is not going to be a real “right” answer. Hopefully we can come together to help form some sort of consensus around which of these not-great options is better.