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