Yesterday Shapeways joined with Formlabs and Matter and Form to ask the U.S. Supreme Court to bring some clarity to the rules that govern copyright and 3D printed objects (among many other things). In a brief prepared by Sydney Lakin and Bill Koch at Stanford Law School’s Juelsgaard IP and Innovation Clinic, we urged the Court to settle on a single test for determining which parts of some 3D printed models can be protected by copyright.
The case is the same one I blogged about last year regarding cheerleader uniforms. The real issue at stake – which is larger than either cheerleader uniforms or 3D printing – is how copyright law should handle objects that mix copyrightable and non-copyrightable elements.
Briefly, purely decorative and non-functional objects (like StuffBySteve’s snowflake ornament) are eligible for copyright protection. Purely functional objects (like leegreen’s No. 50 Tripod Clip) are not eligible for copyright protection.
The question arises when a 3D printed object incorporates both decorative and functional elements (like Gijs’ birdsnest eggcup above). If you extend copyright to the entire thing, you are using copyright to protect functional objects (that’s bad). If you exclude it from copyright entirely, you are taking protection away from decorative elements that may be eligible for it (also bad).
The theoretical way to deal with this conflict is to try and separate out the functional and non-functional elements and only grant copyright protection to the non-functional ones. In practice, we currently have 10 different tests to govern the separating. As you might expect, these 10 different tests floating around make it hard to know exactly what is protected by copyright and what is not.
Fortunately, this sort of “too many conflicting tests trying to answer a legal question” is exactly the type of situation where the Supreme Court is designed to shine. This case gives them the opportunity to settle on a single, nationwide test for how to think about mixed functional and non-functional objects.
That’s precisely what we are asking them to do with this brief. At this stage, we are not even advocating for one test over the other. While some tests are better than others, we feel that the most important thing is to have a single test that everyone can rely on.
What happens next? This is the stage in the process where parties are asking the Supreme Court to take a look at their case. Many more cases ask for review than are ever reviewed, and the Supreme Court is mostly free to pick and choose to hear whichever cases it wants to. If the Supreme Court decides to hear the case there will be an opportunity to weigh on the substantive questions presented by it (as opposed to just weighing in that the Supreme Court should take the case). That is followed by oral argument and, eventually, a decision.
That’s obviously a lot of steps between now and a final resolution. Regardless of what happens, we’ll keep you up to date. If you have any questions, don’t be shy about jumping into the comments.