Over the last couple of weeks various individuals in the 3dprinting community have been significantly angered by Makerbot. You can read more about the controversoy at Hackaday and Fabbaloo. But the essence of the story here is that Makerbot filed for a cluster of patents on 3dprinting. Interestingly enough the patents seem to at the very least be based on the work of others (not Makerbot), so understandably so quite a few folks were outraged about this.
Is this theft?
This isn’t theft. First of all because one cannot steal intellectual property. If you illegal download a CD or copy another company’s patent it isn’t theft. As much as the RIAA and the MPAA would like you to believe that you are stealing, the law doesn’t read that way, at most you have violated someone’s patent or copyright rights. (It isn’t stealing, how could it be, the person still has what you stole you just copied it.) Look I have no love of what Makerbot did here, but I think we have to understand the particulars of what is going on. Indeed, for what it is worth I would argue what they are doing is worth than theft . . .
What did they do?
Stories will differ here, and even some notable Open Source advocates such as Cory Doctorow are defedning Makerbot. The rationale here goes that Makerbot as a company built on the designs of others, but what they have made is something new, a novel and unique invention that is built on the work of others, much of which was freely created and uploaded to Makerbot’s own design website, Thingiverse. So to some it seems as if Makerbot is claiming patent rights over stuff other people invented and then uploaded to the site. If you read the patent filing this doesn’t precisely (at least in one instance) seem to be the case. They disclose the other objects (the ones uploaded to the site) as prior art, and posit that their patnet is a specific new invention. In others though as OpenBeam covers there appears to be more direct filing for patents on something others were at the very least simultaneously developing, the auto-leveling design in particular looks suspicious, given that others were demonstrating it before Makerbot even filed for the patent. At the best they are moving quick to be first to file, to claim dominion over what many poeple are working on, at worst they are waiting to see what the community makes and then selecting the best ideas and patenting them. In this sense Makerbot views the entire reprap community as part of their R & D department. This might sound crazy but the job listing for an IP lawyer posted by Makerbot hints at just this. Makerbot is looking to hire an IP lawyer to shore up their patent interests.
This is a Business Strategy
Make no mistake about it this is a coordinated business strategy. Makerbot was recently acquired by Stratasys. Stratasys has historically been one of the largest players in the industrial 3dprinting landscape but for the most part ignored the home market. Indeed as many would tell the narrative it was the big industrial players like Stratasys who held 3d patents and wouldn’t use them to develop a desktop market that prevented the market from developing. Only once the initial patents expired did a home market of tinkers develop (out of which Makerbot arose, more on this later).
It is now clear to most anaylsts that the desktop 3d printing industry promises to be lucrative. Whether this develops into home machines that we all have next to our toasters and blenders (what I would guess) or just distributed manufacturing centers where these smaller machines are easily available to anyone (imagine something like FedEx, Kinkos or UPS installing these). There is a lot of bank to be made here. The corporate powers that be know this, and Makerbot is now part of that corporate nexus.
Now ~~Makerbot~~ Stratasys can make money off selling individual desktop machines but that is a limited market, one can only sell so many printers when there are many companies manufacturing them at lower and lower prices. (A Makerbot while it looks snazzy, is about twice as expensive as comporable printers.) If one really wants to make money on printers you do this thru two ways 1. Controlling the design files people are printing and selling those to people (similar to an app based economy like iTunes). This is clearly the move Makerbot is making with Thingiverse looking to become the online marketplace for selling 3d print files, not the place for sharing files. Snufalafgus is just the tip of the plastic fabricated iceberg. 2. Is controlling the patents which would allow them to extract “rent” from every desktop machine. That is, for each of their patents, for 20 years, they would be able to extract “rent” and/or prevent a competitor from making a similar or competiting product. This is exactly what the Afina patent lawsuit is about. ~~Makerbot~~ Stratasys is looking to corner the market on 3d printing. You either block competitors from making 3dprinters, or you get a share of the revenue for every home 3d printer sold. The goal in either case isn’t really improving the 3d printing space, but rather maximizing profits and controlling marketshare.
Copyright’s aren’t Patents
This might seem like a tangent, but its a really important point, actually it is probably the central deeper issue here, the one that 3d printing as a technology is going to produce many legal questions around. Currently the law treats copyright and patents as two separate things, that is while rhetorically we might think of them as belonging to the same class of good, Intellectual Property, they are actually very different things, legally speaking. Copyright primarily covers creative works, think books, films, music etc. while patents cover inventions. You can’t patent a book, and you can’t copyright a new jet engine. (Confusingly a few things like software overlap.) The important difference here though is that copyright is just granted, you write something it is copyrighted, while patents require regsitration. In other words just because you invent something doesn’t mean you get a patent on it, you have to register it with the patent office.
Now there are lots of reasons for these differences, and lots of analysis as to why its useful to differentiate between the two classes of goods. But two points are worth making here. 1. 3d printing would tend to collapse this difference, rendering even fuzzier the justification for differentiating between the two (but lets table this issue as it would take much longer to discuss) and 2. Patents thus favor corporations and large players. While in both cases, copyright and patent, victory often goes to the one with the most lawyers, the person or corporation who can pay the most to defend their intersts, in patent law you have to pay to register your invention. This makes it really cost prohibitive to the end users on Thingiverse to be patenting all of their files, but not to a company like Stratasys who can look thru all of the files, find the best, slightly improve on them and then patent them.
Right now users are uploading files to Thingiverse and labeling them with a Creative Commons license. Now I am not a lawyer, so this isn’t an expert legal opinion but it is not at all clear to me that this is an effective strategy for licensincing design files. Now sure, in the case of “creative works” i.e. something like this you can probably protect it with a copyright, where the design elements can be separated from its use function. But with many of the “things” we are talking about copyright wouldn’t apply so well, you need a patent. And unlike copyright you don’t automatically have that just by publishing it. This gives significant advantage to the larger players. (Notice how this cartoon that is making the rounds confuses Patents and Copyrights.
Commons Based Production
So initially in theorizing about commons based peer production scholars looked at collaborative production that was mostly if not entirely based on non material production. That is what was being produced in the “new internet commons” of peer production where goods were information based. Mostly this turns around software production but also platforms where individuals collaboratively produced information, Wikipedia being the uber example often used. But even smaller things, like Clay Shirky’s example of Flickr, are information based not material object based. This makes sense as peer production for material goods is a much harder thing to pull off. In an information object freeriders don’t reduce the commons when freeriding, reading Wikipedia (taking from the commons) without contributing to it doesn’t actually harm the resource. Indeed in many cases as Doctorow observed this type of commons can actually create value off freeriding, overgrazing isn’t a problem, the Internet is the “sheep that shits grass.”
To be sure there are examples of collaborative peer production around material objects, communities coming together to clean up a park, build a playground, etc. but these are usually far more local and far smaller in scope.
The Reprap Commons
3dprinting though is a different model entirely, or at least within the Reprap community that is largely responsible for the growth in the at home/desktop market for 3dprinting. It is very much interested in material production, a 3d printer is an object whose end design is production of materiality. But the design and invention has very much followed a commons based peer production model. When I describe the Reprap community to people who don’t follow 3d printing, I often say imagine Wikipedia or Linux, but instead of building an encyclopedia or an OS the community is focused on building 3d printers. It’s a sharing economy/community. Yes there are monetary transactions that take place, but the overall goal is to produce open design plans that enable anyone to copy them, independent of licensing and legal restrictions. That is the community exists largely outside the patent structure, it isn’t invested in developing and patenting ideas, rather its interested in building 3d printers, and patents quite frankly get in the way of this goal. (If you want a sense of the Reprap community you can start by checking out their forum.
Raiding the Commons
Makerbot started as part of the open source hardware community. Indeed according to Zachary Smith one of the founders of Makerbot, this was one of the underling, founding principles, MakerBot was built on a foundation of open hardware projects such as RepRap and Arduino, as well as using many open software projects for development of our own software.. So initially Makerbot was a company that participated in this commons based peer production, an open hardware movement, in the spirit of the open software movements. Note this didn’t preclude Makerbot from being a business or making money of selling the printers. Many companies exist around the Reprap community selling the hardware, supplies, and kits to build these machines. It’s just that it is all still “open” as in a commons which any of the participants are free to take, and supposed to contribute. The Reprap community has an ethos and Makerbot was participating in that ethos.
Fastforward, to the present and 3dprinting now promises to be a lucrative business, especially for those who can capture a large market share, i.e. be the first movers. In Doctorow’s narrative, and I think this probably follows the Makerbot company line, Makerbot is largely an open company that has made the move to become more closed and thus is being critiqued. Companies are critiqued based on their relative moves not their absolute position.
But I think this misses the point. Its not as if Makerbot is just becoming more closed, they are, apparently the new Replicators won’t even run alternative open source software, purchasing a Makerbot locks you entriely into their system. Imagine by analogy if for years Britannica had participated in Wikipedia helping to build it into a rich resource, engaging in peer production, developing a rich commons of an encyclopedia, but then decided to start using the stuff created, building on it, but creating a new encyclopedia that was copyrighted, and that prevented Wikipedia from further evolving. Or if IBM suddenly forked the Linux distribution and started copyrighting parts of the code. In both cases these scenarios can’t happen because of the copyright licensing. But here’s the rub, Makerbot isn’t playing in copyright territory they are playing in patent territory.
Prehaps the designs Makerbot has come up with are “new” “novel” and sufficiently different as to warrant a patent, and in this case pointing to the designs that are prior art might not matter. Maybe Makerbot has developed something unique, invented something orginal, rather than just copy the designs of others, lets give them the benefit of the doubt here (although it looks worse than this, especially in the case of the bed leveling patent). Even in this best reading Makerbot is only capable of establishing this position because they freely built on, borrowed from, and benefited from the commons production of others. Imagine for a moment if any of the inventions that were open, like the extruder Makerbot seems to have based theirs on, was patented, effectively blocking Makerbot from inventing their new one. Or consider all the patents that could be here, that aren’t, or that are here that are preventing future development.
As James Boyle outlines in The Public Domain engaging in Creative Commons, Peer Production, or Open Source removes ones ability to invoke monopoly priveleges (copyrights) but comes with the benefit of being able to harness the strength of a community of diverse creators, in many scenarios its worth the trade off. But in this case Makerbot is trying to have its cake, eat it, and prevent others from making another without first paying them. This isn’t a case of a company becoming slightly more closed, or a tech company growing up and needing to satisfy investors by protecting IP interests. This is a case of a company wholesale raiding the commons, taking what was open, and trying to close it up. They are using Thingiverse as a giant R&D department encouraging a “sharing” economy which they than can use to turn into a “patent and selling economy.” Makerbot is doing what Disney did, borrow from the commons to create a host of products than changing the rules of the game so no one else can borrow. Taking what was common and fencing it in. In this respect, even if Makerbot hasn’t wholesale copied from others, the ire they are receiving is totally justified. Indeed, I would argue this is worse, copying one person’s work is one thing, but building up fences around what was common to all is an entirely other.
If you are interested here is a brief list of places I have seen individuals expressing anger/frustration/hate at Makerbot about this: