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Our Lawyer Explains The Thingiverse Terms Of Service

Hello, I’m Rich McCarthy, and since June I’ve been MakerBot’s in-house attorney.  In these three months, I’ve been working on playing catch-up with all the little things that fell through the cracks during MakerBot’s first three years without a full time staff attorney. In addition to that, MakerBot closed a lease on a new headquarters, leased a retail store, and launched a new product. As some of the busyness is now behind us, I’m starting to have time to work on MakerBot’s “wishlist” tasks. And one of those tasks is responding to community input on our Terms of Service (TOS).

Despite what you may have heard, nothing has changed with the Thingiverse TOS. Bre publicly announced the last change, in February, 2011 here. I’ve looked at the TOS of some other sites that host user-content (Twitter, YouTube, Flickr, Vimeo,  FaceBook, etc.) and see places where we could improve the clarity and content of our own. But overall, the Thingiverse TOS is consistent with industry practices.

Read fairly, our TOS are structured similarly to any large website that hosts user-content. When a user uploads a Thing, MakerBot requires a broad license so that we can do things like copy the Thing to other servers for content caching, or make the Thing available to the public. Without a license from the user, these acts might constitute wrongful “reproduction” and “distribution” under copyright law.

MakerBot confines this license to only granting us the rights to use user-content in relation to operating Thingiverse.  MakerBot does not claim ownership over user-content and we distinguish between Intellectual Property belonging to MakerBot, and that of the users.

Secondarily, users select a license, such as Creative Commons governing how others may use their work, including us.  When we use designs from Thingiverse outside the Thingiverse ecosystem, we adhere to the way users have chosen to manage the copyright terms that automatically attach to their work.  Moreover, we typically go beyond that by asking users if they approve, something I have personally done on several occasions.  We are keen on maintaining the spirit of Thingiverse as it has always been and on empowering a community of makers to share their digital designs openly.

One provision of the MakerBot TOS that has caused confusion is the waiver of “Moral Rights or attribution.” I understand that this may sound sinister, but Moral Rights have a specific legal definition. Moral Rights (droits moraux) is a doctrine, mainly from French Law, that is not part of US copyright law. This means that unless you are a citizen of one of the countries that recognize Moral Rights, this provision doesn’t affect you.

The reason MakerBot requires a waiver of these rights is to lend certainty to the license that MakerBot relies upon to operate Thingiverse. Because Moral Rights operate outside the context of US Copyright law, they can cause contradictory results. For example, there is a Moral Right against “mutilation” of a work. This can include any derivative work, remix, or mashup that the author disapproves of. Because Moral Rights exist outside of US copyright law, a user can grant someone a license that allows derivatives, and then cause trouble when they dislike a specific derivative work. This approach is fundamentally inconsistent with the intention of Thingiverse, which is to share things and their derivatives.

Sound farfetched? In one case an author signed a contract, and was paid to ghostwrite a novel. The author collected her fee and then sued, relying on the Moral Right of Attribution, to have her name associated with the novel, and won. (Bragance v. Michel de Grece et Editions Orban, Court of Appeal of Paris, February 1, 1989, 142 R.I.D.A. 301 (1989)) In sum, Moral Rights just introduce too much uncertainty into the already complex world of US copyright law. We deal with it by restricting our agreement to be governed solely by US copyright law.

I will be working on revising the TOS in the direction of “less legalese and more reader-ease”—terms that allow MakerBot to operate Thingiverse properly as a service-provider and that respect users’ contributions and the community’s values. It’s hard to make a legally binding agreement that is easy to read. It’s not a skill that lawyers spend much time honing but understandability will be a chief goal of the revision.

Thank you,

Rich McCarthy
Counsel
MakerBot Industries LLC

Tagged with 43 comments
 

43 Comments so far

  • Matt
    September 26, 2012 at 12:26 pm
     

    Thank you for the update.
    I really appreciate the timely blog posts in direct response to specific enquiries; information ftw.

     
  • Brander Roullett
    September 26, 2012 at 12:38 pm
     

    Thanks for the thougtful and detailed response. I hope this settles things, but I some how doubt it. “Haters gonna Hate” is the meme, and it’s true here. The proverbial “THEY” have decided Thingiverse is “evil” and nothing (like facts) is going stop their crusade.

    As is always a good idea for internet use, ignore the trolls and hope they go away when they don’t get the attention they are seeking.

     
  • joo
    September 26, 2012 at 1:14 pm
     

    Thanks for this clarification. Would you please put this also on the Thingiverse blog, so non MBI Blog readers notice?

     
  • Gary Hodgson
    September 26, 2012 at 1:42 pm
     

    I appreciate the post and I think it clears up many questions people have regarding the terms. However, this really should have been the posted in February when the terms actually changed, rather than focussing on the removal of the “All Rights Reserved” license option.

     
  • Terms of Service and Moral Rights Clause Explained
    September 26, 2012 at 2:19 pm
     

    [...] from this post on the MakerBot blog: Hello, I’m Rich McCarthy, and since June I’ve been MakerBot’s in-house attorney.  In these [...]

     
  • Andrew
    September 26, 2012 at 2:41 pm
     

    This clear and concise information rocks. You rock, Rich.

     
  • Torsten
    September 26, 2012 at 2:48 pm
     

    Thanks for following up on this topic and explaining the intention of that part about waiving “Moral Right of Attribution”.
    The problem I see however is, that as far as I know, I can’t waive that rights as german (or more generally most of Europe) law does not allow this.

    So what’s the solution for that? That would actually mean I have to remove my stuff as I have no legal way to fully comply with the TOS?

     
  • Ryan
    September 26, 2012 at 3:08 pm
     

    Thank you very much for that explanation.

    My 2 cents worth:
    You could add to the TOS (or link to) a brief explanation of “Moral Right of Attribution” (in the Thingiverse TOS it’s “moral rights or attribution” so you might want to fix that ‘or’ to an ‘of’). I think most non lawyer have no idea what that means, I didn’t.

    It would also be nice if the ‘Services’ of thinigverse were explicitly stated so there can be no confusion that printing and selling things for profit (without explicit permission) is not one. That way we cant misinterpret: ‘solely for the purposes of including your User Content in the Site and Services.’

     
  • Marcus Wolschon
    September 26, 2012 at 3:24 pm
     

    Thanks for the clarification.
    I’m still not 100% sure about the specific moral right of attribution but it is good to finally know the reason for this strange phrase that has been pointed out.

     
  • Marcus Wolschon
    September 26, 2012 at 3:29 pm
     

    Thorsten: I’m a German too and as far as I understand it US law applies anyway so you can waive that right for Thingiverse as long as they don’t open a German branch that you would deal with.
    Over here I am by law unable to waive my right of attribution.

     
  • RandomDude
    September 26, 2012 at 4:16 pm
     

    The argument I’m hearing is that the ToS grants MBI – not just Thingiverse – the right to sell models. Sort of a dual license – one limited CC license for the public, and one “we can do what we want” license for MBI. This is the area I think needs to be made clearer – in plain English. The current opposers seem to have some issue reading legalese.

     
  • 7777773
    September 26, 2012 at 4:26 pm
     

    @Ryan – I’m guessing that’s what the “reader-ease” revision specifically aims to do.

    @Rich – Thank you!
    I particularly like the “Human Readable” versions of the Creative Commons licenses (see http://creativecommons.org/licenses/by-sa/3.0/).
    If you haven’t already seen the CC layout, I recommend using something similar. A human-readable TOS that is front-and-center, with a link to the actual legal jargon for those that prefer to read the word of the law and figure out intent dfor themselves may help to satisfy nearly everyone and confuse fewer than the current format.

     
  • Rob Myers
    September 26, 2012 at 4:36 pm
     

    Thank you for this article.

    Like other commenters I’m interested how the moral rights waiver works for (e.g.) German users.

    I’d also like to ask how the first part of 3.2, which states:

    “You hereby grant, and you represent and warrant that you have the right to grant, to Company and its affiliates and partners, an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing”

    sits with this:

    “When we use designs from Thingiverse outside the Thingiverse ecosystem, we adhere to the way users have chosen to manage the copyright terms that automatically attach to their work.”

    as the CC licenses don’t allow sublicensing. This isn’t a problem if I am uploading my own original work, but derivatives/mash-ups/remixes of existing designs look like another matter.

    Thanks again.

     
  • MichaelAtOz
    September 26, 2012 at 5:01 pm
     

    Ryan, ‘Services’ first paragraph;

    “Company provides a service for users to share digital designs that can be printed on 3D printers to create physical objects”

    So service is sharing, full stop. Then the secondary licence kicks in.

    Btw, unless you selected a non-commercial licence, anyone can print & sell for profit. Just like zheng3 selling Prusa’s occupy cube on etsy.

     
  • Matt
    September 26, 2012 at 6:40 pm
     

    So you’ve talked about the ‘moral rights’, so now how about you explain the ‘or attribution’ part? I’m pretty sure that ‘or’ between ‘moral rights’ and ‘attribution’ is a conjuction that joins two separate ideas together.

    And isn’t the right of attribution a moral right? Why mention it at all if it’s already spelled out as a moral right in the law?

     
  • AKron
    September 26, 2012 at 6:52 pm
     

    Thanks you Rich, and Thank you Makerbot!

     
  • spacedog
    September 26, 2012 at 7:54 pm
     

    Is thingiverse in line with google/youtube take-all industry commercial standards or with github/sourceforge industry standards?

    how does the agreement compare with those?

    If someone uploads a revolutionary extruder design to thingiverse with a non-commercial CC license, are makerbot entitled to incorporate into their closed source printers, without attribution, without signing a separate commercial license with the creator?

    Congrats on the new job Mr. McCarthy. You are gonna make a fortune out of this company, and be at the forefront of Intellectual property case law.

     
  • Bradley
    September 26, 2012 at 8:18 pm
     

    Thank you for posting this. As one of the many who were concerned about the TOS, explaining it helped 100%.

     
  • Lasivian
    September 26, 2012 at 8:49 pm
     

    I have said before, I have no issues with the Thingiverse TOS.

    I suggest rather than less “legalese” terms of service that mouseover “human explanations” be added to each section. That’s really all people want to know.

    What I take issue with (And is something that the marketing department should address rather than legal) on Thingiverse is the arbitrary manner that things on the site are selected as “Featured”.

    It obviously favors Makerbot, and should be more based on member likes if Makerbot wants to maintain the sites position as the center of the “thing” universe.

     
  • Rodrigo
    September 26, 2012 at 9:44 pm
     

    And Replicator 2 is Open or Closed?

     
  • @dimensionext
    September 27, 2012 at 3:51 am
     

    Great post, thank you for this. A huge wave of concern had of course spread across the community, myself included.

    I believe that this won’t stop a mild division appearing however:

    Opensource has become an ideology – propagated by Filesharers, promoted by everyone from programmers to makers to hactivists.

    MakerBot could well build a brand allegiance of a quasi-religious nature such as Apple’s.

    But beware that the difference in market/audience here is that ideology.

     
  • Bitflusher
    September 27, 2012 at 4:58 am
     

    Thank you for the clarification. I think this is the right way to respond if only this would have been faster.
    Please keep an eye on the responces on this article for additional concerns and adress them too before a new riot breaks out. Do not wait half a year.

    You have a busy job but keep in mind recovering from reputation damage is hard. be available for your pr department. I hope your post will help restore faith in makerbot/thingiverse in time.

     
  • Z
    September 27, 2012 at 7:50 am
     

    EU law expressly forbids the waving of EU citizen rights in any jurisdiction. That makes the thingiverse TOS nonbinding for EU citizens.

     
  • Ryan
    September 27, 2012 at 11:16 am
     

    @MichaelAtOz: please have your quote continue to the end of the sentence/idea “Company provides a service for users to share digital designs that can be printed on 3D printers to create physical objects (collectively, with all other services provided through the Site, the “Services”).” The ‘with all other services’ is what I’d like defined or limited.

    @Matt: I think its a typo and should be “Moral Right of Attribution”

    @Lasivian: Since MakerBot has become such a big player in 3D printing, it might be wise to separate Thingiverse administration from MakerBot administration to avoid favoritism. (Just a Thought)

     
  • Matt
    September 27, 2012 at 11:56 am
     

    @ Ryan: Then it should be easy to fix!

     
  • Marcus Wolschon
    September 27, 2012 at 2:25 pm
     

    Z: Like any contract it does contain the usual severability clause.

     
  • botrob
    September 28, 2012 at 3:13 am
     

    TL;DR

     
  • Fede Heinz
    September 28, 2012 at 7:45 am
     

    I’m sorry, Rich, but this explanation has a major logical consistency problem.

    In the end, it boils down to whether moral rights trump licensing terms, or the other way around. It can be either the one or the other.

    If licensing terms trump moral rights, then a user publishing a design under a license that allows derivatives has already renounced to her rights against mutilation of the work, the scenario you describe is impossible, and the requirement to relinquish moral rights is unnecessary.

    If, on the other hand, moral rights trump licensing terms, they also trump the TOS, which also means that the requirement to relinquish moral rights cannot be enforced, making the requirement again unnecessary.

    Your heart may be in the right place, and you may think that the change was a good thing, but as a matter of fact it ended up being something between useless and evil.

     
  • Hamish Mead
    September 28, 2012 at 8:10 pm
     

    @Fede Heinz – And interesting analysis and thoughts, thanks.

    What I’d like to understand better is if the BY part of the CC-BY-SA license, (which a contributor might typically apply to a design) is itself compatible with the TOS?

    Forgoing remuneration for reproduction of a design is one thing. Being asked to (potentially) waive attribution is another; or is the requirement to waive all moral rights of attribution simply because many of the file types used to store design data are incapable of storing attribution data?

     
  • Peter
    September 28, 2012 at 8:58 pm
     

    Thanks for posting this, Rich. I appreciate your taking the time to clear this up!

     
  • Herman Darr, III
    September 28, 2012 at 10:37 pm
     

    thanks for telling us this rep2 is closed source and the VC all want to make a ton of money…on the other hand that rep2 better work from the box without tweeking or makerbot will indeed be in trouble…Though the maker movement is young, i see a lot of closed source products in the making…all the new kids will give up and the hobby will suffer once again…its just a matter of time….watch DIY Drones is next on the closed source list…money talks BS walks

     
  • Herman Darr, III
    September 28, 2012 at 11:21 pm
     

    thanks for deleting my post…guess the truth hurts

     
  • Rich Beck
    September 29, 2012 at 1:14 pm
     

    Herman, it looks like your post is there unless there was one other than this one..
    “thanks for telling us this rep2 is closed source and the VC all want…money talks BS walks

     
  • Matt
    September 29, 2012 at 8:58 pm
     

    It absolutely amazing to me that the ToS still isn’t fixed. Whats the hold up? Great explanation of everything before the ‘or’ in the second sentence of 3.2. How about finishing the job.

    Rich, you are a fantastic lawyer – you managed to convince the majority of the people here that the ToS is ok, but didn’t address the real problem. Bravo!

     
  • S
    September 30, 2012 at 10:02 am
     

    @Ryan: That the “Moral Right OR Attribution” could be a typo and should read ” and should read “Moral Right OF Attribution” is something that makes a HUGE difference.

    “You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.”

    What is written and bound by the TOS and confirmed here again by the lawyer is what is.

    Doesn’t seem that this EXTREMELY IMPORTANT detail could be the kind of typo that any diligent lawyer would skip, unless is something inconvenient of course…

    And of course still remains the thing about the “we keep your content even if you remove it”

     
  • A-Non-E_mouse
    September 30, 2012 at 11:01 pm
     

    Interesting…

    But I have a hard time taking seriously a lawyer in New York that tries to cite precedent in a French Court.

    Or did Makerbot suddenly relocate to Paris?

    I think that your legal example would get you laughed out of court. Unless you have a relevant example to cite from a jurisdiction that an American Court would actually care about?

     
  • Stijn / Virtox
    October 10, 2012 at 10:04 am
     

    Thanks for clarifying :-)

    My attention was caught by this though:
    “When we use designs from Thingiverse outside the Thingiverse ecosystem, we adhere to the way users have chosen to manage the copyright terms that automatically attach to their work. Moreover, we typically go beyond that by asking users if they approve, something I have personally done on several occasions. We are keen on maintaining the spirit of Thingiverse as it has always been and on empowering a community of makers to share their digital designs openly.”

    I was shown photo’s of one of my own printed designs “Siamese Orchid” which is on display in the new Makerbot retailstore, example:
    http://www.flickr.com/photos/jabella/8007711192/

    I couldn’t tell from the photo, so I am just wondering if this means you give attribution, as I share most of my designs here under Attribution – Non-Commercial – No Derivatives license.

    If that is not the case, wouldn’t you agree, it would look a lot better if the displayed models would have a nice card with them like “Siamese Orchid by Virtox” etc. And perhaps a link to the model on Thingiverse?

     
    • Andrew
      Andrew
      October 10, 2012 at 11:10 am
       

      Hi Virtox! Your models are incredible, which is why we love to make them for our office and feature them in the MakerBot Store. But don’t worry: we absolutely respect the licenses of our Thingiverse users. We have full attribution cards for everything in the store, including your awesome Siamese Orchid vase. These have names of Thing and designer, as well as Thingiverse numbers. Also, your model is not for sale in the MakerBot Store. If we had planned to sell it, we definitely would have reached out to you.

       
  • Stijn / Virtox
    October 10, 2012 at 1:24 pm
     

    Hi Andrew,
    Thanks for the quick reply and clarification :-)
    Cheer!

    Ps. To any late readers: They give credit, but someone managed to snap photo’s before the store was fully set up ;-)

     
  • Charles Haase
    October 12, 2012 at 9:45 pm
     

    Dear Mr. McCarthy:

    Thank you for clarifying the Thingiverse Terms Of Service. I think your openness and willingness to address the confusion speaks volumes about you and your employer. I am wondering if you can clarify something else for the Thingiverse community. I realize that this request goes above and beyond your direct duties, but I think it will prompt interesting conversation, and may even result in greater usage of the site.

    I would like to know if you can clarify, in human-readable terms, the current U.S. laws as they apply to derivative works of items which are not covered by Creative Commons licenses, but may actually be patented, trademarked, or copyrighted by someone else. Some test cases and questions:
    1) I have a thing in my house that broke. I designed up and printed an exact copy for my own use. Is that a problem? What if I post it to Thingiverse? Is that a problem?
    2) Same thing, but a rough copy?
    3) Same thing, but an improvement?
    4) I’m a fan of XYZ video games. Can I create a character from the game and post it for all to print without getting sued? Does it matter if I don’t make money on it?
    5) What are the limits placed on “fan art” and “fair use”?
    6) What is the easiest way to find out if a trademark or copyright has expired on something?
    7) What are the rules governing when an item becomes part of the public domain?

    I think clear communication about the current state of the laws would go a long way towards helping the designers and artists out there understand what they can legally use as a springboard and what they cannot. I realize that these are complex issues with many tangles, but some general guidelines would be much appreciated!

    Please note that I am not asking about the ethics of any of this… that is a whole other discussion. Just wondering about the law. I hope you’ll consider helping us!

     
  • Matt
    October 13, 2012 at 12:48 am
     

    Virtox – awesome designs!

    http://www.flickr.com/photos/makerbot/8009891383/

    I find it humorous that the photo is copyrighted but your Siamese Orchid is uncredited.

    This is from the photographer that Makerbot hired to take the photos at the store launch – in it’s perfect, pristine condition.

    I see lots of other things with credit given:
    http://www.flickr.com/photos/makerbot/8009897026/in/photostream/
    http://www.flickr.com/photos/makerbot/8009898266/in/photostream/

    Just not the big, impressive stuff. I guess they didn’t want to detract from the aesthetics?

    The saddest photo is really this one. Of all the things on that far wall, what has a label describing it?
    http://www.flickr.com/photos/makerbot/8009897232/in/photostream/

    So much for attribution when it comes to the impressive stuff, except the Replicator 2 of course…

     
  • L.
    October 21, 2012 at 12:03 pm
     

    “This means that unless you are a citizen of one of the countries that recognize Moral Rights, this provision doesn’t affect you.”

    In the countries that recognize Moral Rights, these rights are unalienable, so the waiver has no sense whatsoever.

    Actually the waiver of attribution makes sense *only* for people under US law and such (but not people under French law for instance, since the moral right is unalienable).

    So thanks for the explanation, examples and all, but please address the whole issue (since “moral rights” waiver is a non-issue as you pointed out).

     
  • Jay
    December 5, 2012 at 12:05 am
     

    I see the names “Apple”,”Lego”,”Simpsons”,and others mentioned in the text of
    many of the things uploaded to your website without any Copyright notices. Since
    I own two patents and several Copyrights, I worry that anything I upload, may end up as a commercial product with out my permission. “It is easy when you show them how!”…Jay Simmons

     
 

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