I sent an email to Creative Commons giving a heads up about this Just3DPrint situation and got a very prompt and rather nice reply:
From: Creative Commons info@creativecommons.org
Date: 19 February 2016 at 12:54
Subject: Re: Interesting and ongoing incident involving CC licenses
To: loubie@***
Hey Louise,
Wow, I’m just so sorry. Just3DPrint doesn’t seem to have any idea how any of this works at all, do they?
Thanks for sending it. As you noted, we can’t give out any legal advice. We can’t help with enforcement either but please do let us know how this goes.
A few other ideas: we have a huge affiliate network and community. You might consider joining the community mailling list here: https://creativecommons.email/mailman/listinfo/community They can help, and many of them are professionals (artists, lawyers, etc…). You could also reach out directly to our US affiliates: http://us.creativecommons.org/ They love hearing about this stuff and might be able to lend a hand or two where we can’t.
About the response I would have expected: “Oh, what a shame. Good luck.”
Only realistic option is to ask eBay to remove the listings based on the fact they aren’t giving any attribution which is obviously in violation of CC-BY:
NC is essentially unenforceable, as they have the benefit of plausible deniability. They claim they are charging for materials and labor, which is no different than any other print-on-demand service.
CC-NC is exceptionally vague, and there is really no precedent to say what they are doing is against the actual letter of the law (though admittedly, probably against the spirit).
People keep throwing out this truism that the CC-NC license is probably unenforceable/extremely vague/wouldn’t help… and there’s no truth to it.
CC-NC is quite clear: “NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.”
That means you can’t sell it. It’s pretty plain that what this particular guy is doing in his ebay store is selling it. If I were to pull a CC-NC design and put it up on Shapeways, I would also be violating the CC-NC license.
But if I were to pull a CC-NC design, then pay Shapeways to make it for me, I wouldn’t be violating it.
You have to look at who is the licensed party in each situation - it’s the person who pulled the design - and what they’re using the model for.
If I download a model and put it up for sale somewhere, I’m using it in a way that’s “primarily intended for … monetary compensaion”.
If I download a model and pay a printing service to make me a copy of it, I’m not making any money, and the printing service isn’t the licensed party, so CC-NC is still satisfied.
Hopefully this helps us get into contact with some good lawyers eager to help set precedents. We need to know what rights CAD model creators and this could be a very important case if we can bring it to courts. As someone else mentioned consider a GoFundMe for a lawyer. I’m sure the community would be glad to assist
@Stephen_Baird If only people understood that. Had to explain the very same thing and people still don’t understand. That said CC is a big weak and without much precedent for protection. But it is a license and licenses are binding.
@Louise_Driggers have you asked thingiverse for any help? Like I pointed out previously about their terms of service. When we upload a design, everything becomes property of makerbot and then the secondary license we assign the design issued to the design for download. So if they require a login to download ( the only change to thingiverse) then if someone is caught abusing the license them their user ID is revoked. Sounds make a big impact with minimal fuss. (at least for future designs)
@Stephen_Shimatzki I sent the community manager of Thinigverse the following email late on 17th Feb:
"I’m sending you this email because I think this is something you need to be aware of. A couple of days ago, someone left a comment on one of my models saying that a person on eBay was selling a print of Aria:
Not only are they selling a print they are actually using my photograph!. I sent them a polite notice asking them to take down the item and I got this reply:
"Sir,
When you uploaded your items onto Thingiverse for mass distribution, you lost all rights to them whatsoever. They entered what is known in the legal world as “public domain”.
The single exception to public domain rules are “original works of art”.
No court in the USA has yet ruled a CAD model an original work or art.
Therefore, you have no right to exclude others from utilizing the CAD models you have uploaded.
Furthermore, if in the future we do get a precedent in the USA for establishing CAD models as “original works of art”, we would still likely be just fine as we are not re-selling your CAD models, but rather “transformative” adaptions of them in the form of 3D printed objects.
SFE
P.S. When you created these CAD files, did you really want to limit the amount of people who could enjoy them to the 0.01% of the USA with a 3D Printer? 100% of America can purchase the items from us at a reasonable cost and enjoy them-creating made in the USA jobs in the process as well. Furthermore, if you hate the idea of people profiteering from your work, you may want to take it up with Makerbot/Stratasys who only hosts Thingiverse for AD revenue, to sell more 3D printers."
which just boggled my mind…
I’m notifying you because when I had a look at his other items, I found over 2k of 3D objects many complete with author photographs and/or screenshots from the Thing viewer, which suggests to me that he is harvesting Thingiverse for both objects to sell and photographs to advertise them.
"
He responded early on the 18th thanking me for the heads up and that he was going to talk to their legal team and would get back to me when he knew something. I have yet to hear from him but that could easily be down to lawyers still deciding what (if anything) they should do.
Louise’s NC license is valid and enforceable in this case because the original work can be protected via copyright as art. That’s not the case with printer parts or other mechanical parts. Were that a printer part it wouldn’t enjoy the same protection under the law.
A copyright or trademark, any copyright or trademark on which may be infringed is only as protectable as the resources with which to pursue that protection.
@Mike_Kelly_Mike_Make Getting resolution with this particular infringement would cost at the very least a few thousand as a retainer for some C&D letters from a non IP specialist to well into five figures for someone with a great deal of experience in dealing with IP issues. These guys likely don’t have many assets and you’d have to prove any sort of monetary damage so taking them to court is only going to be worth it for someone with very deep pockets.
The issue of what constitutes copyright in a CAD file and which objects are subject to copyright is well established case law. This is a specific infringement and is covered pretty clearly under current law.
@Stephen_Baird
" I download a model and pay a printing service to make me a copy of it, I’m not making any money, and the printing service isn’t the licensed party, so CC-NC is still satisfied."
Do you have precedent for this opinion as in a court ruling? While that very well could be the case I’m not aware of anything that has been ruled to provide a safe harbor from contributory infringement.
Before you can get to issues of copyright infringement and contributory infringement, you have to determine if the terms of the license have been violated. Because if your use complies with what’s allowed by the license, you aren’t infringing the copyright.
In the example you quoted, the person with the license to use the model is the one buying the printing services. The license entitles them to use it in ways that are not “primarily intended for … commercial advantage or monetary compensation”. Assuming they’re having it produced for personal use, they’re complying with the license.
Assuming a different set of circumstances, where the customer were infringing on a copyright potentially because they were printing a 3D scan of an action figure or tabletop miniature, then there might be an issue of contributory infringement on the part of the printing service.
The closest similar case is probably Princeton Univ. Press v. Michigan Document Services, Inc. There, the 6th circuit court of appeals found contributory infringement on the part of a commercial photocopying service that put together “coursepacks” by copying selected portions of different textbooks. But there’s a lot of focus in that case, and in other cases that favorably cite it, on the ways that the photocopying service didn’t follow typical industry practice. Other copyshops required coursepack creators to present proof that they had a license to use the material, and a non-profit copyright clearing house exists to facilitate the process of obtaining and checking copyright for coursepacks.
In the case of 3D printing… nothing like that exists. Most large commercial 3D printing services seem to be completely automated, with little actual human involvement and exposure to the models, decreasing the amount of willfulness in their facilitating the copyright infringement. It’s still closer to the MDS case I mentioned than to something like the Betamax case, but it’s far enough away from it that I have my doubts about the outcome. It could honestly go either way.
But still, before that’s even a question, there has to be copyright infringement and for that to happen with a licensed use (even a CC-NC licensed use) the license has to be violated. And in that example, the license is being complied with.
That would be a “there is no issue of contributory infringement because there’s no infringement in the first place in the example given so there’s no need to look to court cases or statutes”… with a bit of a hypothetical tacked on the end for a situation in which there might be contributory infringement, but which is very different from the original example you quoted.