2018 Transparency Report

Welcome to the 2018 Shapeways transparency report. We believe that this transparency report will help our community understand how our internal processes and policies are working in practice. Shapeways exists because of its strong community, and that makes it important for the community to understand how our rules are actually impacting them. The transparency report is a snapshot of the system as a whole, as opposed to specific pieces that individual users may come into contact with. It focuses primarily on intellectual property-related requests we have received from rightsholders. It also contains spaces for requests from law enforcement, other types of government requests, as well as civil data requests. The report builds off of the data released in previous transparency reports, which are available here.

The key take aways from the 2018 report are:

• The number of takedown requests decreased compared to previous years. Takedown requests often come in bursts from large rightsholders. We attribute this decrease primarily to a slightly lower number of large rightsholder takedowns in 2018.
• There were interesting developments regarding counternotices, including a successful counternotice against a large number of notices from a large rightsholder.
• Shapeways received requests for information from both law enforcement and prosecutors.

This report will also help everyone understand how the legal regimes that govern Shapeways impact how Shapeways operate. These legal systems impact much more than the Shapeways community alone. Governments should represent their citizens, and processes enshrined in law should reflect the intentions of those citizens. Understanding how governments are requesting data from Shapeways and how third parties are using government-sanctioned requests to obtain data from Shapeways is important to everyone. It is impossible to evaluate the laws that control how Shapeways operates without understanding how those laws impact Shapeways and the Shapeways community.

Finally, and for the last time, the report includes a warrant canary that allows us to disclose – to the extent permitted by law – how Shapeways has been impacted by secret government requests for data. Shapeways is electing to retire the warrant canary in this transparency report. To clarify, Shapeways has not received any requests that would cause us to kill our warrant canary. Instead, Shapeways is voluntarily electing to retire the warrant canary because it believes that adequate alternative mechanisms exist to report on government requests for data.

If you have any questions about this report or would like clarification about any of the data it includes, please email the Shapeways legal department at [email protected].

Significant Findings and Incidents

Shapeways continues to witness a shift away from copyright-related takedown requests towards trademark-based requests. As Shapeways has noted in the past, the use of tradmark-related requests significantly reduces the ability of users targeted by an accusation of infringement to challenge that accusation. In practice, many trademark claims that Shapeways receives could also be framed as copyright claims. It is possible that rightsholders are framing these requests as trademark claims in order to sidestep the counternotice procedures offered in the context of copyright claims.

This reliance on trademark claims can be problematic in and of itself, and is likely compounded by the nature of how trademark law interacts with many listings on Shapeways. Many Shapeways shops offer aftermarket accessories for existing third party products, or scale models of objects marketed by third parties. The acceptable use of marks in these contexts can be ambiguous. Shapeways believes that both shop owners and rightsholders would benefit from a mechanism that allowed them to negotiate the use of marks directly without the involvement of Shapeways.

There was one incident that is noteworthy in part because it is counter to these trends. A large rightsholder submitted a takedown request based on concerns related to trademark infringement. The mark in question was a relatively generic object and the takedown request targeted models of the object itself (not accompanying titles, descriptions, or tags that might use a word mark). When Shapeways asked the rightsholder for additional clarification, the rightsholder revised its request to be a copyright-based DMCA takedown request. As the request was properly submitted, Shapeways processed the request and removed the models.

Counternotices

There were also two noteworthy developments with regards to counternotices in 2018. The first highlights the complex calculation involved with submitting a conternotice. The user was targeted by a takedown notice from a large rightsholder. The user counternoticed with a message that they believed that the accusation was baseless, but that they did not want to expose themselves to litigation costs by fully challenging it. The user went on to explain that they were only counternoticing the accusation in order to remove the strike from their record (in order to avoid triggering the Shapeways repeat infringer policy), and that even if the counternotice was successful the model in question should not be relisted by Shapeways. The user hoped that this compromise position would prevent the rightsholder from escalating in response to the counternotice. This message was communicated to the original rightsholder, who did not respond. Shapeways considered this a successful conternotice, removed the strike from the user’s record, and did not reactivate the listing in compliance with the user’s instructions.

The second involved a large successful counternotice. As noted above, many takedown notices come in bursts from large rightsholders. A user had been targeted by a series of these bursts without responding. When the user was notified that they were in danger of having their account deactivated under the Shapeways repeat infringer policy, the user elected to counternotice against a significant number of the original claims. These counternotices were successful and the models were reactivated.

Scale Replicas

In 2018 we also saw the increased use of trademark takedown notices against scale replicas of physical objects. In some of these cases the rightsholder owns registrations for the full scale objects and for replica/toy versions of the objects. In others the rightsholders only have registrations that cover the full scale objects. The area of trademark law that governs the use of trademarks to describe replica models is complex. That ambiguity likely makes it hard for rightsholders and shopowners to understand what types of uses of marks is allowed. In the face of that ambiguity, and in the absence of a statutory safe harbor, in many cases Shapeways errs on the side of removing models accused of infringement.

Other Developments

There were a handful of rare claims made in 2018:

• Shapeways received a DMCA takedown notice targeting a spam page that was linking to an off-site PDF. Shapeways could not comply with the takedown request because Shapeways was not hosting the PDF, but did remove the spam account.
• One rightsholder sent DMCA takedown notices to Google, which were then communicated to Shapeways for removal. This path extended Shapeways’ response time to the request and was unlikely to be the most efficient way to resolve the matter for the rightsholder.
• One rightsholder targeted elements of the model listing (images and embedded videos) with a DMCA takedown notice, but not the model itself. The vast majority of DMCA takedown notices Shapeways receives target the models themselves.

Data

• This year we received 638 claims, down significantly from the previous year. Shapeways attributes this to the bursty nature of takedown requests and a smaller number of large rightsholders submitting takedown requests. It is too early to consider this a significant trend.
• 291 (46%) of those claims involved copyright, 2 (0.3%) involved patent, and 331 (52%) involved trademark. The percentages add up to more than 100% because some notices combined types of IP.
• 5 claims combined trademark and copyright claims. This continues a pattern of a reduction in combined claims. As noted in earlier reports, these claims often appear to use boilerplate language that may or may not apply to the specific accusation. Their structure makes it unclear if the targeted model is actually being accused of both copyright or trademark infringement or if the rightsholder is simply asserting that it owns both copyrights and trademarks related to a property and the targeted listing is accused of infringing on one of those rights. The distinction is relevant because only copyright claims can be addressed through the DMCA system.
• 19 copyright claims were improperly formatted. 18 of those claims were corrected, resubmitted, and processed.
• 79 of 79 copyright counternotices were successful.
• 71 trademark claims (21% of all trademark claims) were informally challenged by Shapeways. 2 of those claims were ultimately corrected by rightsholders and processed. The reminder were not taken down.
• 84 trademark claims (24% of all disputes, 31% of all disputes passed to shop owners) were resolved by the shop owner changing language in their model title or description. This suggests to Shapeways that many accusations of trademark infringement in the marketplace are disputes related to how to nominatively use the mark in question.
• There was a total of 31 unique rightsholders submitting takedown requests. As noted above, the majority of requests Shapeways receives are from a small number of large rightsholders.

Government and Law Enforcement Requests for Data

As we make clear in our privacy statement, Shapeways complies with government and law enforcement requests for data only upon receipt of valid and sufficient legal process.

Shapeways received two government-related requests for information in 2018. The first was a message from a United States Government Agency requesting information about the number of times a specific marketplace model had been printed. Shapeways responded to this request with a link to the Shapeways privacy policy and and offer to discuss it further. The agency did not pursue the matter further.

The second was a subpoena for information in connection to a criminal prosecution. Shapeways complied with the subpoena in accordance with the Shapeways privacy policy.

As noted above, Shapeways takes this opportunity to retire its warrant canary. This retirement is voluntary and should not be read as an indication that Shapeways is unable to make the representations in the original canary as of this time.

Civil Requests for Data

As with the government and law enforcement requests, Shapeways complies with civil requests for data upon receipt of valid and sufficient legal process. In 2018 we received no such requests.

Government Requests for Content Removal

In addition to governmental and civil requests for user data, we are aware that some governments request that content be removed from websites such as Shapeways. In 2018 we received no such requests.