When eBay Sellers Try to Defend Their Illegal Sale of 3D Models from Thingiverse, Comedy Ensues
[Editor’s Update: Legal experts and the industry at large are certainly taking notice of this hullabaloo and weighing in — and we can’t say it looks good for the guys at just3dprint. Keep following on the comments at Thingiverse and reddit for more up-to-the-minute updates on these goings-on.]
It was bound to happen of course. When 3D printables files are available online for free and easily shared there was always going to be someone who would be willing to take advantage of that freedom. 3D printing technology is going to completely alter copyrights, trademarks and IP law dramatically over the next few years simply because there really are not a lot of ways to stop people from duplicating, and in some cases stealing and taking credit for, 3D content. Currently there are only two real defenses that 3D model designers have to prevent their work from being stolen; respect for the Creative Common licenses attached to 3D models and the ethical fortitude to not violate those licenses.
Sadly, an eBay seller calling themselves just3dprint has neither the respect nor ethics to not abuse the privilege of access to so many amazing 3D printable models. The seller has bulk downloaded thousands of 3D models and product photographs directly from Thingiverse and has listed 3D printed copies of those models for sale on eBay. Their store currently has well over two thousand products available for sale, including everything from cell phone cases, figurines and cosplay props to pen holders. The range of products available is pretty staggering, and while many of those models carry licenses that would allow them to print and sell copies, many of them do not. And that’s where they done goofed.
3D designer and Thingiverse user Louise Driggers aka Loubie is a pretty popular creator who has seen several of her 3D models featured and highlighted by Thingiverse. Some of her more notable designs are The Tudor Rose Box and Aria the Dragon. Just a few days ago it was the latter model that she discovered was being sold on the just3Dprint eBay store despite the model carrying a Creative Common Attribution Non-Commercial license which clearly states that anyone is free to download, modify, duplicate and 3D print her model freely, however there must be appropriate credit given to her and it cannot be used for commercial purposes of any kind.
“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 [sic] of them in the form of 3D printed objects.
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.”
In a matter of hours after the Sad Face model was uploaded, just3dprint took to the Things comments section and posted a response that made the one Loubie originally received look like it was written by a legal scholar. At a mind-numbing 3546 words, the comment is only matched in its lack of brevity by its complete and total lack of factual information. The comment is far too long to reproduce here in its cringe-inducing entirety, so I’ve linked some screencaps at the end of this article so you can experience the word salad at your own leisure.
Essentially, the response from just3dprint not only manages to get every fact about big legal words like trade secrets, trademarks, copyrights, patents, licenses, the public domain and the Thingiverse ToU completely wrong, but they also do an impressive job of incriminating themselves in willful wrongdoing. First they helpfully point out that they are only one of “5,000” companies that abuse the licenses on many of the 3D models uploaded to Thingiverse by selling them for a profit. They also suggest that they are legally entitled to download and sell copies of the 3D models because they instantly become part of the public domain once they are uploaded to Thingiverse – they don’t become part of the public domain once they are uploaded to Thingiverse, by the way – and also freely admit that they are selling, for a profit, 3D models that are IPs owned by companies like Disney and the NFL. Models that are only legally on Thingiverse provided they are not sold for a profit. Honestly, I don’t like calling someone stupid in an article, but what other descriptor could I possibly use when presented with this:
“Next, we have trademarked items. Trademarked items are a set of words, an image, or a sound combination that clearly communicates that a product is being made by a certain brand. The vast majority of trademarks are brand names, logos, or slogans. Trademarks are much more common on Thingiverse/in created CAD files, but are rarely owned by the creator of a design. Instead, it is typically some large company (like Paramount) that owns the TMs. We have found, in our personal experience, that the majority of large companies do not care about a few fan-designed items being produced and sold on eBay/Amazon. Rather, they view it as fueling the value of the TM as it builds up a community of ‘super-fans’ that go to see their movies, buy their things, etc. If, however, a TM owner feels differently about us, or anyone, using the TM for marketing fan-designed goods, they are welcome to reach out and say so. When we get a request to not use a TM, we of course remove any items with said TM.”
Guys, seriously, you just admitted to selling trademarked items illegally. It doesn’t magically become less illegal because the owner of the IP hasn’t discovered your eBay store or because you are willing to comply with a takedown notice. In fact, the one plausible defense that you really had if any sort of legal action was taken against you would be ignorance of the law, which you just sort of invalidated. I mean… why would you write those words??
Of course my favorite part of this whole response is their take on the Thingiverse ToU agreement itself:
“The vast majority of ‘discussion’/justification for why we/others are being spammed by haters saying that we/others are ‘ripping creators off’ of their designs comes based not on legal precedent, statutory/common/constitutional law, or any other sound grounds, but rather on the Thingiverse ‘non-commercial license’. This license is a complete and total fiction written up to give creators the illusion that they are retaining IP rights to their designs when they upload them to Thingiverse-thus encouraging more creators to upload designs even when doing so might not be in their best interest.”
“The reason the license is a fiction is that it is purely lip-service without any substance of an actual contract/license and the very drafter of the license knowingly violates it millions of times daily. Firstly, the license is not a valid contract, NDA, or any type of binding agreement for multiple reasons. One of these would be that any contract requires ‘consideration’ to be paid by both parties-they each must pay a ‘real price’ for entering into the agreement or it is not valid. A Thingiverse browser does not pay any real price for downloading a design. Another reason is that in the United States we have 300 years of legal precedent, law, etc. about what is public domain and what can be done with said material. Weighing this against a quick blurb written up by a 1st year law student is no comparison whatsoever- any sensible court will rule that the 300 years of public domain rules apply to a design instead of the blurb.”
“Thirdly, anyone can download a Thingiverse design without getting an account and agreeing to the ‘non-commercial license’ in the first place. You might object to this because Thingiverse puts a tiny disclaimer below the download button (which BTW you don’t even have to click to download the files) saying that, by downloading a file, you are agreeing to the non-c license. This, in legal terms, is called a click-wrap contract. The abilities of these contracts are incredibly limited and are more for protecting against lawsuits then initiating them.”
Yes, there is a measure of truth in this, each model does include a clickwrap agreement which is part of the file that you download, even if you don’t have an account with Thingiverse. According to that agreement, the minute that you open that file and use it (say, by 3D printing and selling a copy of it) you are agreeing to the terms of usage set by the model’s owner. And yes, clickwrap agreements can occasionally be fought in court and sometimes broken, however that is pretty rare and usually results from a deceptive agreement that intentionally obfuscates its terms or hides the link to its full text. Sadly, by admitting that you know what a clickwrap agreement is and that Thingiverse models have them, and that they have a small link to their ToU agreement, which you helpfully noted the location of, you just, once again, invalidated your only plausible defense against legal action. My goodness man, what are you thinking???
What I find most amusing about this entire situation, and I don’t mean to make light of the fact that content creators are having their work stolen but this entire situation is absurd, is the fact that had you just complied with Loubie’s request to remove her Aria model from your store no one would have been exposed to your chicanery. Plus, had you complied with the terms of the licenses attached to the models, no one would have even even cared that you were selling 3D prints of the models. In fact, a lot of the models that are on your eBay store carry creative commons licenses that would only require you to attribute the creator of the 3D model, and many of them have no restrictions at all.
By foolishly, and very publically, defending your rights to do something that you have no legal right to do, you have brought a tremendous amount of attention to your eBay store. And the fact that there are, as you suggest, 5,000 other stores doing the same thing as you doesn’t magically render your gray area operation suddenly invisible or legal. And by making this so public, you’ve essentially forced Thingiverse to respond simply to protect their reputation and to discourage their users from removing their content for fear of it being misused or stolen. According to Loubie, she has received word from Thingiverse that they are reviewing the issue with their legal department, who it should be said will likely not be thrilled at your description of them and their legalese as the work of “first year law students”.
Based on your website, you guys look to be about twelve (or at least college age), so the specificity and binding nature of the legal agreements that you are eager to ignore are likely new to you. And your actions are probably forgivable and can be considered a learning experience, but you’re going to need to make this right with the creators and take their work down. And you should probably get used to the fact that if you want to operate in the murky gray areas of the 3D printing industry, it isn’t wise to call attention to yourself by defending your “right” to sell $136 toilet paper holders. What’s your take on all this? Discuss in the Illegal Sales of 3D Prints forum over at 3DPB.com.
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