[Discuss] Request for Comments: Digital DIY: Legal Challenges & Solutions Practised Report

Wouter Tebbens wouter at freeknowledge.eu
Fri Sep 23 10:03:37 UTC 2016

Thanks Matt for your reflections. Let me reply briefly in line.

On 22-09-16 16:27, Matt Maier wrote:
> Technically, you've always needed a "design file" for any kind of
> non-trivial fabrication. Modern digital tools don't change that. There
> have always been drawings and instructions "fixed in a tangible medium"
> that could get copyright protection.
> This definition was already stretched when digital medium(s) were
> invented, since they aren't particularly tangible, but the concept is
> the same, so for the purposes of copyright we think of digital files as
> tangible.
> So I agree that making copies or derivative works of a "tangible" (i.e.
> digital) file falls under copyright. If you take a screenshot of a
> blueprint that screenshot should count as a derivative work. If you cut
> away pieces of a 3D file the resulting 3D file should be a derivative work.
Yes, digital fabrication can the be considered as comparable with
reproduction of 2D files through a simple paper pinter.

> I'm not entirely comfortable with the idea that 3D printing a 3D file is
> a derivative work, but on balance it mostly makes sense, particularly
> since the whole point of digital fabrication is to remove any creative
> or crafting aspect, thus making fabrication easier and more predictable.
To be correct, that would be a "reproduction". A derivative work would
be - as I understand it - when there's some creative modification
applied. Simply converting the CAD file into STL or configuring some
parameters for the material or machine used would not count as a
creative act, so no derivative work.

> The thing is that copyright still only covers non-functional aspects of
> the design. You can't copyright a napkin holder but you can copyright a
> decorative design applied to a napkin holder. There's gray area, but
> that's the gist of it.
> http://www.forbes.com/sites/oliverherzfeld/2013/05/29/protecting-3d-printing-designs-and-objects/#522f071b7ddd

> I don't think the Open Source Hardware community cares about the
> non-functional aspects of objects. That's definitely not the focus of
> the existing community. There is concern about identification in the
> marketplace, but that's already covered by trademark.
Well, in most cases we probably have a combination of functional and
non-functional elements. This should give a suficient basis for the
existence of copyright, and therefore it provides the legal basis for
non-exclusive licenses including copyleft.

> So if someone makes a little model of an Easter Bunny, and applies an
> OSHW license to it, and wants to assert that anyone who 3D prints the
> Easter Bunny model needs to comply with the terms of their OSHW license,
> I'd suggest that they don't waste their time. They can just use a normal
> copyright license and get exactly the same protection.
Indeed, the arguement was not for any specific license. CC BY-SA could
already work.

> OSHW is far more concerned with how things work than with how they look.
> Extending copyright to functional, utilitarian aspects of objects would
> be an unreasonable leap. That would be the exact opposite of how
> copyright works.
Yes, in theory that is, but in practice we tend to deal with a
combination of elements, which should give a sufficient basis for
copyright based protection.

Personally now, I think that:
What we want is to have a legal foundation to mandate norms and
conditions of how to use our work. I'd say that copying or imitating
OSHW designs without giving back to the community will always be hard in
the hardware domain. But at least we can in many cases have a legal
basis to threaten abuse of our collective works. Maybe that threat of
possible legal course of action may already be enough (of course in
combination with a more positive approach requesting parties to

At least we should stop denying the legal basis for copyright based OSHW
licenses and allow copyleft to be a real option (for digital
fabrication). At least that is what I've learned in the process of
writing this work.

best regards,


> On Thu, Sep 22, 2016 at 3:16 PM, Wouter Tebbens <wouter at freeknowledge.eu
> <mailto:wouter at freeknowledge.eu>> wrote:
>     Philosophically I would be fully against any form of "intellectual
>     monopoly", but as you say, there'd be no copyleft without copyright (or
>     droit d'auteur). And this helps us agree on the rules that we operate on
>     in our community.
>     Regarding your statement on copyleft hardware, let me challenge you to
>     say that there are good reasons to work on copyleft hardware and that
>     the current legal systems do help us. Please read section 4.3
>     "Non-exclusive Public Licensing" in the report.
>     In sum, copyleft for hardware designs works like this:
>     1) hardware design files can easily be protected under copyright law,
>     considering that copyright law protects “pictorial, graphic and
>     sculptural works”, which include “two-dimensional and three-dimensional
>     works of fine, graphic, and applied art, photographs, prints and art
>     reproductions, maps, globes, charts, diagrams, models, and technical
>     drawings, including architectural plans”.
>     2) Considering the design files needed for digital fabrication, the
>     copyright holder has the exclusive right over the reproduction of the
>     work, and any derivatives made of it. This should be a sufficiently
>     strong basis for the open source licenses (Greenbaum 2013).
>     3) For determining the legal status of producing physical products based
>     on a freely licensed digital blueprint (e.g., a CAD file), three main
>     scenarios can be distinguished (Margoni 2013, p.240).
>     4) When there's dentity between the realised product and the digital
>     blueprint, which is typically the case for digital fabrication
>     processes, there is an act of reproduction.
>     5) When the intellectual creation as present in the original blueprint
>     is identifiable in the final result in a way that may constitute
>     copyright infringement, we deal with a derived work.
>     6) Based on the exclusive rights conveyed by the copyright system, the
>     original author can mandate a copyleft license and that should set the
>     rules for acts like 4) and 5).
>     Several legal scholars have agreed on this to be true. Looking forward
>     to your comments.
>     best,
>     Wouter
>     On 22-09-16 09:33, Matt Maier wrote:
>     > Yeah, copyright doesn't force people to do anything; worst case is it
>     > forbids people from doing things.
>     >
>     > And it's weird to rail against copyright from a libre perspective
>     > because copyleft, the legal precedent that allows for free/libre in the
>     > first place, wouldn't exist without copyright.
>     >
>     > It's the courts enforcing the terms of copyleft that gives free/libre
>     > power. If you want to get rid of copyright then you'll also lose copyleft.
>     >
>     > That's the exact challenge we have in hardware! There isn't any
>     > copyright for hardware (functional objects) so we can't use copyleft to
>     > enforce hardware licenses.
>     >
>     > The absence of copyleft makes a domain open source by default. It's only
>     > with copyleft that free/libre can exist. You have to have the ability to
>     > get a court to issue an injunction against someone that wants to use
>     > your free/libre stuff in violation of the terms that require sharing.
>     > Without the option of getting the courts to side with you there isn't
>     > any way to enforce free/libre.
>     >
>     > On Wed, Sep 21, 2016 at 6:14 PM, Brennen Bearnes <bbearnes at gmail.com <mailto:bbearnes at gmail.com>
>     > <mailto:bbearnes at gmail.com <mailto:bbearnes at gmail.com>>> wrote:
>     >
>     >     Various parties wrote:
>     >
>     >     > > 2. Alert:
>     >     > > Please, please, please, do not call you 3.1. section
>     >     > > "copyright", please, oh please, let stop this, please really
>     >     > > please Wouter, not for a european paper, please please please
>     >     > > Wouter.  Please find an other term like "right of authorship",
>     >     > > or "right of intellectual property",
>     >     >
>     >     > NO.  the concept of "intelligence as property" is both fake,
>     >     > misleading, and utterly arrogant.  how DARE you claim that you can
>     >     > ENSLAVE ME through OWNERSHIP of the intelligence within MY mind
>     >     > that is my BIRTHRIGHT.
>     >
>     >     It kind of seems like this rhetorical mode might not be doing us
>     >     any favors.
>     >
>     >     -- bpb
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