3D Design Theft or Fair Use? | 3D Print Start Point

Is it 3D design theft, or is it fair use? A timely issue in the 3D printing world that has just been happening that regards the potential theft of someone’s designs.

In this particular case, a Thingiverse designer found one of her designs being sold on eBay by a company called Just 3D Print in actual printed product, not the design file. In fact, what she found was this company had taken over 2,000 files from Thingiverse and put them up as individual items for sale on eBay that they would print. That included these specific photographs of items from Thingiverse or the Thingiverse CAD rendered image of the object. They had downloaded all the stuff from Thingiverse, put it up on eBay as if it was their own with no credit or retribution, and sold the products for profit. They were taking those files. You pick one, they print it, and they send you the printed product. Sounds like a simple answer, but it’s really much more complicated than that.

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Design Theft or Fair Use?

The Thingiverse designer, Loubie, posted on Thingiverse’s blog about her and others’ designs being printed and sold on eBay. She let everyone know this was happening. She also wrote to eBay and asked for it to be taken down. She also wrote to Just 3D Print and asked them to remove it as well. There is a blog post on Thingiverse where you can read the whole history. This just happened. February 18^th was when she posted it the first time. She has updated it since. Other bloggers have been writing about it, too.

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Suffice it to say, she got a rather strongly worded and lengthy response from Just 3D Print that was making all sorts of legal claims that this was fair use because of both Thingiverse’s terms of use and that there is no legal precedent and that 5,000 others are doing it.

This is my first red flag. I can’t believe there are 5,000 others doing it. Nobody is making money doing it, so why would 5,000 others jump in to do that? There might be 5,000 shady eBay companies out there selling stuff, but they’re not necessarily selling 3D printed items. A lot of their claims were exaggerated. They seemed to be throwing every argument in the kitchen sink at Loubie. In doing so, they pointed out how what they’re doing is not proper and legal in any way in our experience. Whether or not it’s legal remains to be seen by experts in that area. But it is certainly not ethical and probably not the right way to deal with this.

Is it Worth Waging a War?

Here is my dilemma about it. It’s happened to us multiple times. But when it’s happened to us, it makes sense. We had a design that we designed for a company that sold it to Staples. At some point, Staples said they were going to get a new vendor to make this. They cut our client out of the loop. In doing so, they cut our royalty out of the loop. Essentially, our design was stolen by the customer it eventually went to. Staples was the one who willingly went and had our product knocked off by another Chinese factory and bought it directly, cutting us out.

The thing is I get that model. I get that because Staples wanted to be greedy about the margin, but they also could be a bully and say to our client, “If you want to keep your other positions, you aren’t going to complain about this.” Our client was selling many other things to Staples at the same time, and they were not going to win the battle over our product and lose the war and not be able to sell all the other stuff they sell to Staples. We got lost in the shuffle and cut out. That’s how that happens.

It’s not like what Staples did was legal or correct. It was a horrible thing to do. They stole our design. We had copyright on that design. If we wanted to spend a whole lot of money waging a legal battle, we would start that fight, and eventually Staples would probably kill the product and take it down and stop selling it. That’s our experience. What happens is you never get any money from it. You spend a ton of money, and you never get any money in return. They just take it down. You win the case, but you lose in that you spend a lot of money and don’t gain what you were trying to get in the first place.

In this case, having had experiences in the past like this, we decided we were not going to fight this big battle with Staples. But that doesn’t mean it made it right. It’s an understandable process under which the companies do this.

There Needs to be a Precedent Set for 3D Design Theft or Fair Use

This case doesn’t make a lot of sense to me. If Just 3D Print was wanting to have a copyright battle because it needs to happen… If they were trying to pick a fight to make a legal case happen, that would be an interesting move. Someone has to fall on the sword to do that. That would have been great because that would have helped the greater good in getting some precedents set in this 3D copyright models. Some real precedents. We have a lot of opinions. This is absolutely copyrightable, but there are not precedents set. If we can get some precedents set, that would make it stronger for all of us. That would be good.

But then they write this crazy letter that destroys the possibility. They did some crazy things. They were trying to poke holes in the Thingiverse’s terms of use, saying that the terms of use read like they were written by a first-year law student. It’s like they’re sticking their chin out and saying, “Hit me right in the chin if you dare. Please sue me.” They are trying to pick a fight. MakerBot is a major corporation; they have serious lawyers, and they have written their terms of use with careful planning and thought, I’m sure. To say that it was written by a first-year legal student, you’re just asking for trouble. That’s arrogant.

It goes even further than that. Loubie is not making money. She is sharing her products under creative commons. You’re stealing form the little guy. For what purpose? That doesn’t make any sense in this market because there is no money being made in this market. You’re stealing form the little guy to do what? Make no money? Clearly they were thinking they would make some money because they put the product up on eBay with a price. They haven’t paid anything in terms of cost of goods to get the designs made. They took them off of Thingiverse without payment. But there is no enough money to be made. You’re really going to make a shop that has longevity in doing that? I think it was a flawed business plan for sure. It was a stupid business plan.

When I think back to Taylor Swift and the Spotify issue, that’s what this industry needs. They need someone who is making money to go out there and speak for all of the designers and say that this is not okay. You cannot make money off of them. And that is what we have been trying to do here with what we have been saying about the many reasons we haven’t joined a site. I don’t think the sites are necessarily acting in the best interests of the little guy yet. I want the sites to do that.

I’m not bashing Thingiverse by what I’m saying here. They are great in that they are creating a exposure for 3D printing, but they are not doing a service to those who are contributing to their site. They need to because that is what really is going to keep and sustain this market. I think that’s where the growth has to happen. Hopefully this is an impetus to make that happen.

We have some people that we know over at MakerBot. I was pleased to see that they have come out and made a blog post very quickly. By the following week after this was posted, MakerBot put out a blog post regarding your rights on Thingiverse. Just 3D Print was trying to claim that you signed all your rights away to Thingiverse, which isn’t true. That’s not in the terms of use. Thingiverse was clarifying that here. You’re just giving permission to Thingiverse to put your files up there and make them available under certain licensing and limitations. You have choices you can make when posting.

Her reality is that MakerBot has clarified what the reality is of posting files on Thingiverse. They are supporting their community members who are posting things here, and it is not right for a person to take them down and sell them for profit under the creative commons license. They say that that is really the bedrock principle of respect for these people. On eBay, Just 3D Print has completely ignored this.

You’re stealing from the poor to do nothing? There is not even a purpose to it. That frustrates me even more. If you were making a good point, if you were doing something good with it, that would be okay. But they aren’t. They don’t seem to be fighting the good fight. They are being greedy and opportunistic and taking advantage of the people.

One of the other good things I want to mention here about MakerBot’s post is that their legal team is preparing communication to all the parties involved: eBay, Just 3D Print, and Loubie. They are working on it. They came out to say that they are aware of this issue, and they are interested in protecting the rights of their community members. They are working on it.

Other 3D printers have printed Loubie’s “Sad Face!” model in support of the issue and to create awareness.

How Fair Use and Creative Commons Work… In a Nutshell

But you have to think about this. You not only have terms of use for when you upload, but you have terms of use for when you download. In reality, they violated the download use. They make all sorts of wild claims to the contrary as if somehow putting a file up on Thingiverse somehow puts it in he public domain, which is garbage. It isn’t. There are fair use rules.

Fair use rules are very slippery. There are many interpretations, and most of them don’t get clarified until they go to court. That’s why you have to be very careful on your purposes of how you are doing something. In an educational setting, you could use Loubie’s design, and you could say that this is a great design, but you’re giving her credit, which is the respectful thing to do. She asked respectfully for accreditation. You give her credit, and you would say, “Loubie did this design. It’s a great example of free sharing on websites like this.” Whatever your purpose of teaching someone about it and using her as an example. That’s fair use of something. Even so, you should follow her requests.

We do this all the time. We have a creative commons license thing that happens through the photograph sharing. 123 Royalty Free or other photo sharing sites or graphic sharing sites. If I were putting that on my website or on a blog post, I absolutely follow the rules, and I give credit underneath the photo as to where it came from. When I give a private presentation, though, because it’s embedded in a slide, I don’t do it that way because the slide itself is not for commercial use anyway, so I am not publicizing it in that sense. I am giving an educational seminar. I don’t do that in that particular case. They’re just looking on a screen; they are never going to take it home. There is no website where they can click through it and say, “That was a great photo. I do want to know who made that so I can find something similar in my world.” We’re giving them the best opportunity for what would make a click-through.

There are those times where you make those trade-offs and are thinking like that. But you are still not violating the rules because you downloaded it for the purpose of an educational seminar and not for commercial use. You’re not printing brochures.

At that point, you’re just talking about proper attribution in the right settings, credit for whose it is. You’re not talking about selling something for profit. That is so far out of bounds in terms of the creative commons license. It’s not for commercial use. You cannot sell for profit. But you can. Some of the Thingiverse designers who got their stuff stolen by Just 3D Print’s store did allow commercial use of their items. They did allow for that because there are different levels of the creative commons license. They allowed it, but they only allowed it with credit as to who designed it. That was not given. That was the fundamental flaw in the process.

Is eBay at fault?

The interesting thing is that I have not seen eBay’s response in anything we have read so far. They are not moving quickly, which surprises me. We have a lot of experience with vendors selling on Amazon. If someone is even thought by Amazon to be doing something a little shady, Amazon will take their listing down and ask questions later. They make it incumbent upon the vendor who is selling it that they have the right to do it. They are on the opposite side of the spectrum. With anybody being able to sell pretty much anything on eBay, there is probably a lot of things being sold there that shouldn’t be. That’s probably where he is getting his 5,000 other thefts of products happening.

Amazon takes the pose that we have millions of items on our site. What is one less item being taken down that is complained about? That’s not worth my time and effort. Let’s get rid of it and give more space to those doing it legitimately. We take down first and wait for a petition later.

I’m disappointed that’s not what happened here. eBay allowing this to happen. It doesn’t surprise me, though. It’s not too hard to connect the dots on this one. Again, we’re not lawyers, but we have a lot of experience with intellectual property and theft of the same.

From a somewhat experienced or trained eye, it’s not hard to connect the dots that this company is not acting legitimately. I’m going to keep asking why. Why? It doesn’t make any sense. There is no money in the market to be doing this now. There are so many whys that don’t have answers. To me, it comes down to naiveté and arrogance, I guess. I don’t know. Maybe we’ll find out at some point.

Final Thoughts

I do want to tie this back to last week’s episode where we talked about whether or not we are free to put up our designs because of stealing. The reality is this is not why we’re afraid. We know this happens. It’s happened to us multiple times. We’ve moved on from it. It’s not why we’re not in the marketplace, and I don’t think it should hold you back either. I don’t want to say this is exceptional because it does happen all the time, but I think that it’s not in the spirit of the 3D print community. The community is still rallying around people like Louise and the designers, and we should respect that as a community and continue to do that.

The real reason that we are not in it is because there isn’t money in it. Our time designing and developing things, we can’t feed that at the pace which is required because there is not a market for it yet. It’s not that we’re holding out because we are afraid of our stuff being stolen. We’re holding back because there isn’t a market for what we have to sell. We are commercial designers, and we design things to make money on them. We don’t design them just to share with the world for free. You can’t make that up in volume. If there was a case where there was a good reason to do it, we would totally do it. We haven’t found that kind of reason. That why is missing for us.

I wanted to tie the two together to make sure that this is not a reason for you to be scared off from designing and loading designs. If you want to be sharing, go for it. This recent example is helping clarify what is okay and what’s not okay. Hopefully that helps the whole market.

We are trying hard to be a voice for you guys as designers or sharers or community members. And we want to champion that as best we can from our position here. If you have anything you want to talk about, comment in the show notes.

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