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Wikilegal/3D files and 3D printing

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The hosting of files holding information for three dimensional objects (“3D files”), and the associated possibilities for 3D printing from these files, open up new opportunities for sharing knowledge through the Wikimedia projects. Several areas of law, including intellectual property and products liability, may affect what types of 3D files can be shared through the Wikimedia projects. Some of these areas of law have not been applicable to the other types of files already allowed on the projects, due to the unique nature of 3D files. For example, although a photograph of an object shows what the object looks like, and could guide users in replicating it, a 3D file can provide precise directions on how to create a copy of the physical object using a 3D printer.

This document is intended to provide some general information on legal issues surrounding 3D files, which impact what types of files users may create and upload, what objects users can download and 3D print, and what a platform such as Wikimedia Commons can host. As of 2017, the law on 3D files is still highly unresolved. The information here may become outdated as courts further consider the issues associated with 3D files and 3D printing. This document is primarily based on United States law; some of the laws discussed here may vary for users in other countries.

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The objects depicted in 3D files may be eligible for copyright protection, depending on whether they are creative or useful in nature (note that “creative” and “useful” have legal definitions here that are quite different from their everyday usage). If the file only provides a 3D representation or model of a utilitarian, non-creative object (a “useful object”), the object is not copyrightable, but may be patentable.

If the 3D file is a duplicate or a scan of a copyrighted object, such as a sculpture, both the file and the copies made from it could infringe the copyrights in the original work.[1] Because of existing Wikimedia Foundation and Community policies, it is possible that a user who uploads a file of a work that is not available under a free license or in the public domain could have that file removed. That said, Digital Millennium Copyright Act (DMCA) Section 512 generally shields online service providers like Wikimedia from any obligation to monitor for user-uploaded files which may infringe the copyright of others. If a copyright owner believes that a 3D file is infringing copyright, they may work with the communities to seek removal, or request that it be removed by following the process in the Wikimedia DMCA Policy.

If a user creates an original 3D object and saves it in a file, the user may have a copyright interest over the creative, artistic elements in that object. By uploading the file to Wikimedia Commons, however, the user must agree to license their copyright interest in the object, as depicted in the 3D file, under the terms of whichever free license they choose at upload.

A user who 3D prints an object based on a file on Commons must comply with the license specified by the uploader. For files licensed with attribution requirements (such as CC BY-SA 4.0), anyone who reuses the licensed work must provide attribution information along with it, including the title, author, and source of the work, as well as the applicable license. Attribution is easy in digital and print media: by publishing and linking the attribution information alongside the work or in credits, a re-user ensures that the work and the attribution are always kept together. For a 3D-printed physical object licensed with attribution requirements, however, the object could potentially be separated from the attribution information.

As of this writing, there is no standard method for providing attribution with 3D objects, and perspectives differ on how to satisfy the license requirements. Creative Commons has said that it is "debatable" whether or not attribution is required on the physical 3D object, or if including attribution information in the file is sufficient. If one wants to include attribution with the 3D object itself, possible solutions include incorporating the attribution information into the object itself (as Shapeways has suggested), or including a 2D printable tag to accompany the 3D object (as Makerbot encourages).

Patent issues

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3D files can depict not only creative 3D objects (like sculptures), but also functional, non-creative (in a legal sense) objects, which cannot be protected by copyright, but can be protected by patents. Much like copyrights protect artists’ rights in their creative works, patents protect inventors’ rights in functional objects they design. U.S. law allows for patent protection for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”[2] These patents, known as utility patents, typically provide much shorter terms of protection than copyrights, usually 20 years from the date the patent application is filed, though this varies somewhat by country.

3D files can allow users to depict patented objects, and potentially create copies of those objects through 3D printing, which can be considered patent infringement. While the object depicted in a 3D file might be patented or patentable, the law is currently not clear on whether any patent rights exist in the files themselves.

3D files depicting a patented object

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Although the law on this point remains unclear, simply creating a 3D file that is a scan or a digital representation of a patented physical object likely does not itself infringe the patent in the object, because the abstract file itself is not eligible patent subject matter.[3] In the past, cases that involved direct infringement based on documents alone have only succeeded when the involved documents were offered for sale.[4] There are no examples where patent infringement was found based on documents alone when those documents were offered for free, as they are on Commons.

If a 3D file depicting a patented object without the patent holder’s permission is uploaded to the Wikimedia projects, and that file is later used to create a physical, 3D-printed copy of the object, the user who printed the object may be committing patent infringement.[5] Additionally, if a user uploads a 3D file depicting an object that they know is patented, with the goal of helping others create copies of the patented object, and someone actually does 3D print a copy of the object from that file, the file uploader could also be held liable for indirect patent infringement.[6] The Commons community may wish to create guidance educating users about the patent risks associated with using files depicting a patented object on Commons, systems for patent holders to report violations, or processes for removing files if the community determines them to violate patents.

3D files depicting a patentable original object created by the uploader

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If a user uploads a 3D file depicting an object that they have invented but not patented, such public disclosure may cause the invention to lose “novelty,” and bar the uploader from receiving patent protection for objects related to the 3D file at a later date. For an object to be patentable, it must be a new idea ("novelty," in patent jargon). This requirement means that something might lose patentability if it is known to the public before the inventor applies for a patent. Some countries, including the United States, give an inventor a short grace period after publishing the invention (usually 6-12 months), during which time they can still apply for a patent without losing novelty. Other countries consider objects to lose novelty (and thus patentability) as soon as they are published.

Patent rights and free culture

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The issue of how to address creators’ patent rights is an open question within the free culture community at this time. Under the Wikimedia Terms of Use, any non-text media contributed to the Wikimedia Projects must be under a free license that complies with the Licensing Policy. The Licensing Policy, in turn, requires that the projects will only host content that is “under a Free Content License, or which is otherwise free as recognized by the 'Definition of Free Cultural Works'.” The definition of Free Cultural Works is taken from Freedom Defined, and requires, among other considerations, that the work is not subject to any legal restrictions or limitations which would impede the free sharing of the work. Patents are specifically mentioned as an example of a legal restriction.

This reflects an unresolved tension between free culture licensing and patent rights. The Wikimedia Licensing Policy does allow 3D files of potentially-patentable objects to be uploaded under a free culture license, such as Creative Commons licenses, which satisfies the requirements of the Licensing Policy, but does not address the uploader’s patent rights at all. Leaving patent rights unchanged does not affect the sharing of the file itself, but it could potentially hinder free reuse of the work if the creator of the object chooses to enforce their patent rights later on against those who print the object from the file. The principles of Freedom Defined likely favor a licensing arrangement that allows for subsequent free reuse of the object depicted in the file. While users could upload 3D files under Free Content Licenses which do not address patent rights and still technically comply with the Licensing Policy, doing so would be against the spirit of the free culture movement. Allowing users to upload 3D files under such licenses is therefore a poor solution to this issue.

Therefore, the Foundation’s recommended approach is to have users agree to a disclaimer that they do not hold any patent rights in a potentially-patentable object upon upload of the 3D file.[7] This would help reduce users’ concerns about patent restrictions on any files they may wish to print. Because the uploader could be forfeiting substantial rights in the 3D object, it would be advisable to have a specific warning, triggered upon uploading the 3D file, alerting users that any patent rights they have in the object will be waived.

To address the possibility of a user uploading a 3D file that depicts an object to which they do not hold patent rights, there could also be an additional option in the licensing workflow to have the uploader declare that the 3D file, and the object it depicts, is also not encumbered by the patent rights of others.

Requiring users to waive, or provide licenses to, patent rights or otherwise asking users to only upload 3D files that are not patent-encumbered are necessary steps for 3D files to be fully compatible with free culture principles.

Trademark and trade dress issues

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Trademarks are intended to protect names, logos, and other branding that identify the products or services of a particular source as distinct from those of others. Similarly, trade dress protects the distinctive visual characteristics of a product or its packaging that signal the source of the product to consumers. 3D files may replicate trademarked logos and names, as well as the trade dress-protected appearance of products, in much the same way that 2D image files can. The law surrounding trademark and trade dress protection and infringement is similar, so they can be addressed together.

Trademark infringement only occurs when the protected mark is “used in commerce.”[8] Users who 3D print objects that contain trademarked names or logos, and then sell those objects commercially, could be found liable for trademark infringement. Commercial sale of the 3D file itself may also be trademark infringement.

Contributory trademark infringement only applies to a website hosting an infringing file if the website continues to supply its services to particular users that it knows or has reason to know are engaged in trademark infringement.[9] Websites which fail to act when put on notice of specific trademark infringement can still be liable for contributory infringement liability.[10]

3D files of trademarked names or logos may not be used in counterfeiting goods. Users should be aware that using 3D files to engage in counterfeiting can carry criminal penalties.

Products liability

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3D files can often be printed into physical 3D objects, and there is a chance that an object printed off of the Wikimedia projects could hurt either the user who prints it or someone else. Each user should be aware of the risks associated with 3D printing generally, and the particular object they choose to print. The Foundation is not responsible for any injuries resulting from the use of the projects. The Foundation does not guarantee that 3D files will work as they claim to work, that they will work for any particular purpose a user might want to use them for, that they are free of third parties’ intellectual property rights, or any other guarantees about the suitability or safety of the objects depicted in 3D files on the projects. Courts have consistently held that the Communications Decency Act (CDA) Section 230 protects online platforms from products liability and other tort claims resulting from objects purchased through online marketplaces, and the same would likely be true for objects printed from 3D files available for free on the Wikimedia projects. [11]

Weapons

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One danger that 3D printing does open up is the possibility of amateur manufacturing of weapons. 3D files have already been developed for functioning, 3D-printable firearms, gun parts (such as receivers), and other weapons. Because such weapons are regulated in the United States and other countries, creating and sharing 3D files of weapons requires additional legal considerations which do not apply to other files hosted on Commons.

3D files of guns and other weapons which could be printed using a 3D printer are regulated at the state and federal level in the United States. Many of these laws are broadly drafted and largely untested. US-based websites which host 3D printing files that can be downloaded outside the United States and printed as “defense articles” (including some weapons parts and accessories) might be “exporting” those items under the Arms Export Control Act. Because that law gives the US Department of State authority to set regulations on exports, the State Department may be able to require websites to get approval before hosting such files, or demand their removal. [12] Additionally, because some federal laws regarding weapons manufacturing may carry criminal penalties, the Foundation could be subject to liability, as CDA Section 230 does not provide websites with immunity from federal criminal liability.

United States federal law also prohibits the sale, importation, and shipment of switchblade knives.[13] Several states have further prohibitions on firearms and other weapons. Multiple states have prohibitions on the manufacture of throwing stars (Shuriken).[14] California prohibits commercially manufacturing knives which cannot be detected by a metal detector, as well as causing such knives to be commercially manufactured, or knowingly importing or exporting undetectable knives.[15] California law will soon prohibit facilitating, aiding, or abetting the manufacture or assembling of a firearm by a person who is prohibited from possessing a firearm.[16]

Many state weapons statutes include broad provisions regarding “offering or exposing for sale”, “disposing of”, or “causing [weapons] to be manufactured.” Such laws may create criminal liability for the uploader if files that can be 3D printed into prohibited objects are posted to Commons. Liability can also extend to any users who use these files to print the weapons. Thus, Commons policies might need to warn uploaders of this potential risk.

For these reasons, users should be extremely cautious about uploading anything that could be viewed as a weapon or “defense article.” Based on United States federal and state laws, the Foundation will remove 3D files depicting certain types of weapons whenever the Foundation becomes aware of them. Such files may include those which depict guns, realistic gun replicas, or gun games (such as Airsoft or paintball); parts that make up guns or could be assembled into guns or realistic gun replicas (including grips with integrated magazine wells); gun parts with specific regulations for manufacture such as silencers or suppressors; magazines for guns, gun replicas, or gun games; disguised blades (such as swords hidden in canes), switchblades, hidden blades, or gravity knives; metal swords longer than 50cm; metal throwing stars; or brass knuckles. This does not mean that the Foundation will never be required to remove other 3D files, as the law may change, or some files may present unclear cases under the law. Those files will be dealt with on a case-by-case basis whenever the Foundation becomes aware of them.

References

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  1. ↑ See Michael Weinberg, Public Knowledge, What’s the Deal with Copyright and 3D Printing, pages 18-19 (2013) for more on this point.
  2. ↑ 35 U.S.C. § 101. Similar considerations to those detailed below may also be applicable to Design Patents.
  3. ↑ Lucas S. Osborn, Doctrinal Quandaries with 3D Printing and Intellectual Property, American Bar Association (2016).
  4. ↑ See Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1310-11 (Fed. Cir. 2010).
  5. ↑ 35 U.S.C. § 271 (a)
  6. ↑ 35 U.S.C. § 271 (b) and (c); see e.g. Manville Sales Corp. v. Paramount Systems, 917 F.2d 544 (Fed. Cir. 1990); DSU Medical Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006).
  7. ↑ Another potential approach is to have uploaders retain patent rights to the 3D object, but have them provide a patent license to their files to allow others to freely reuse them. However, the implementation for this option would introduce more complexities than the recommended approach.
  8. ↑ 15 U.S.C. §§ 1114, 1127
  9. ↑ Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93, 107 (2d Cir. 2010).
  10. ↑ Louis Vuitton Malletier SA v. Akanoc Solutions, 658 F.3d 936, 940-41 (9th Cir. 2011).
  11. ↑ See Inman v. Technicolor USA Inc., No. 2:2011cv00666-Document 178, 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011) (eBay immune under the CDA from product liability claim for vacuum tubes purchased on the website which gave the plaintiff mercury poisoning); Hinton v. Amazon.com, 72 F.Supp. 3d. 685 (S.D. Miss. 2014) (Amazon immune from products liability claim for selling recalled hunting equipment); Gibson v. Craigslist, No. 08-CV-7735, 2009 WL 1704355 (S.D.N.Y. June 15, 2009) (Craigslist immune from liability for selling gun used in a murder); see also generally Stoner v. eBay, No. 305666, 2000 WL 1705637 (Sup. Ct. Cal. Nov. 1, 2000) (eBay immune from liability for selling bootleg music without “actual knowledge” of the illegal sales or “affirmative action” to accomplish those sales); Gentry v. eBay, 121 Cal. Rptr. 703 (Cal. Ct. App. 2003) (eBay immune for hosting sale of forged sports memorabilia); Doe v. Myspace, 528 F.3d 413 (5th Cir. 2008).
  12. ↑ Defense Distributed v. Department of State, 838 F.3d 451 (5th Cir. 2016). The question of the Department of State’s authority to require approval or demand removal of files has not yet been resolved by the courts.
  13. ↑ 15 U.S.C. § 1241-45
  14. ↑ Such as N.Y. Penal Law § 265.10 (McKinney 2008), though New York calls them “kung fu stars.”
  15. ↑ Cal. Penal Code § 20810 (West 2012)
  16. ↑ Assem. Bill 857, 2015-2016 1st Ex Sess., ch. 60, 2016, amending Cal. Penal Code 11106 (effective July 1, 2018).
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