Peering Down The Data Ownership Rabbit Hole

The post on GrabCAD got a fair amount of discussion on this blog and in other places.  In the CAD community the anticipated proliferation of 3D printing and some outlandish misconceptions of how that is going to change the acquisition of manufactured goods, are becoming more and more relevant to real-life concerns about how to handle ownership of data, with moral and legal implications.

There is a point of view which claims that you can own a shape. I believe this to a certain extent, but I’m not really sure how far I’d take it. For example, if say Kia suddenly came out with a new model that looked on the outside like a 1968 Firebird, I’d call that “wrong” or “illegal” or “an infringement”. But I obviously have no problem with modeling a Shelby Cobra and putting it on a book cover.

Chinese knockoff products are very common occurances. Sometimes they don’t even bother copying your design, they just take the parts that they make for you in their factories. One for you, one for me. Knockoffs where they put something that looks like a real product label onto a far inferior product are meant to deceive you into thinking you’re buying a real Nikon battery, a real Rolex, or even brand name pharmaceuticals. To me, and I think to most people, this kind of activity is very clearly over the line.

What constitutes a “shape infringement”? In what formats would a recognizable shape be an infringement? 2D, 3D, wire frame, point cloud, mesh, NURBS? Photo? Hand drawing? This rabbit hole might be deeper than I want to know.

It’s common for companies to protect trademarked shapes or images, with some of it making more sense than others. Like Apple trying to patent phones that are rectangular and flat with round corners. Or Apple crying foul over a Steve Jobs doll. Or a patent/trademark on a Coke bottle shape. Oops, I just used the word Coke in my blog. Do I owe someone money for that?

 One real example of shape borrowing in the automotive world would be the classic BMW bow tie, and the Pontiac kidney grill. It’s easy to see the resemblance. I found a discussion on this topic, which has some relevance. This seems to indicate that you can only trademark a shape if it is something “distinctive”. But you have to be careful here, because the legal meaning of words is often different from the common sense meanings. I think it would be easy to argue that the BMW grill is distinctive, and the Pontiac grill is less so. The Firebird above was a Pontiac and did not use that shape (unless you consider the whole grill with the headlights to be elongated kidneys), while the much newer G8 to the right uses it.

If you were to produce a toy car that is recognizable as some real car, you have to license the right to use the name and the likeness of the car. What about if you were to make a drawing of an old burger and shake stand with a ‘Vette , a Mustang and a VW Beetle from the 1960’s? Or an internet cafe with a Nissan Juke?

These are questions that I think need answers. Answers coming from moral convictions are different than answers coming from law. It’s uncomfortable when instinct and law don’t match up.

I personally don’t trust either extreme  – the people who think if it’s digital everybody owns it or those who think you can fully own a shape and prevent others from referencing that shape. I believe the law will wind up somewhere in the middle as well. The Fair Use Doctrine protects the use of certain types of data by non-owners (like the photos used in this blog post). Wikipedia is enlightening on this topic.

I don’t have any answers, all I have to go on are my own moral convictions. The law turns out to be whatever the courts decide it is, but it is often filtered through the reality lens by juries of regular people, so the law tends to not get too far away from real human experience.

What do you think? Where is the line?

10 Replies to “Peering Down The Data Ownership Rabbit Hole”

  1. During the Superbowl, a yoghurt manufacturer ran an ad featuring John Stamos and a catchy bass riff. It’s on ubiquitousTube. Check it out, then the John Butler Trio song “Zebra”. The advertisers APOLOGISED afterwards, fer gawdsakes. It would surprise me not at all to discover that the congress has legislated to recognise ‘apology’ to have the same meaning and legal standing as ‘indemnity’ or ‘impunity’.

  2. Matt said:
    These are questions that I think need answers. Answers coming from moral convictions are different than answers coming from law. It’s uncomfortable when instinct and law don’t match up.

    One problem with law is that it’s not flexible. And to the degree it cannot flex with hitherto unconsidered circumstance is the degree that law is unjust. Further, many laws can be flat-out unjust in their entirety, so looking to law (as we have it now in the U.S.) for moral guidance would be a terrible mistake. Laws here are often crafted to benefit some at the expense of the many. (This is generally called bribery, except here, where it’s “legal”.)

    Did Apple not rip off Dieter Rams? Or did they patent/copyright the man? The original iPod design was a near knock-off of something Rams did years ago, particularly with regard to shape, color, and proportion. Other fingerprints abound. Is this OK? In the cases I’ve seen with Apple/Rams, I think so. To me, they point more to sources of inspiration than theft, and the uses are different anyway.

    I’ve had plenty of knock-off experience in my career. The first (and boldest) was at the National Hardware Show when it was still at McClintock Center in Chicago (glad it’s not anymore). A product I’d designed had just won an award there and I later saw exactly the same product (some parts with forms as closely copied as possible) in the booth of a Chinese manufacturer. It’s flattery I don’t need (they promptly removed this product from their showing, and I didn’t see it pop up later).

    Later, one of my handle designs for a hand tool won design accolades as part of another product. One I’d not designed. Again, exact duplication, and my handle stood out from the collection of other handles in their product group (similar to an OXO arena where handle design and human factors mattered). Accolades went to some design firm hailing from New York City. My phone discussion with them was quite awkward, as expected, but the theft was already done and over with. What would I really do about it, anyway?

    Cheesy. I guess that’s the word that comes to mind with this behavior. To the degree that the copy is more flagrant and more blatant is the degree to which this is low behavior.

    Some stuff is in the public domain, and a CAD model of a real thing in public domain is just that—a 3D representation. But once I begin manufacturing/marketing that item, it’s a cheesy knock-off copy that has the potential to damage the original (and hence, the “owner/creator” of that original). And causing damage to another, through fraud or force, is out-of-bounds conduct for me.

    If the state exists for any legitimate reason at all, it’s to defend and ensure the uninfringed liberty of its citizens. Failing that, the state is illegitimate and will lose the consent of the governed. This is why justice matters more than what is merely legal.

  3. I actually don’t think the copying issue is so critical with multi national corporates like Apple and car manufacturers. Here, the products are not just about the shape, but more about the quality/feel/performance/function and (that dreadful word) the brand. People buy a BMW or Mercedes because it is a BMW or Mercedes, in the same way that they buy an Audi A3 rather than a Seat – because they want an Audi.

    But where you have a relatively small business, selling internationally, where the product is maybe just a few parts, and 90% of the value is in the shape, these are the companies that get hurt. The big companies can flatten opposition through sheer marketing effort. What happens with a lot of small companies is they develop a great new product, it comes to market, then after a short time it gets copied, undercuts on price, is sold through online stores or low cost retailers and before you know it the copies are selling in volume and your original is dead in the water.

    I have seen this happen time and time again. It is the little guys who get killed off by copying, not the big ones.

    Copying is not competition (as I have heard many commentators suggest). It is copying. The debate here and in other places centres a lot around GrabCad, and other online sharing sites. I have no big issue about people practising their modelling skills by trying to model an existing product – that is good. What I have issue with is when people copy the model (either directly as I described above, or by reverse engineering the form) then manufacture parts from that data. That is clear to me. That is copying.

    The issues often centre around debates of 3D Printing and consumers downloading files and printing stuff. If consumers want to pretend a 3D printer in the next 10 years will be anywhere near the quality of even the cheapest copy they are kidding themselves – let them do it, waste their money and add more crap to the environment.

    But the same technologies (and CNC) used on an industrial scale is a different matter. The issue for product protection is not 3D printing – it is 3D scanning, CNC, laser cutting and other manufacturing processes. Whilst 3D printing gets all the press, mainstream production tools have dropped in price and become simpler to use. You just don’t get additive manufacturing in China. CNC is the predominant technology. Chinese companies laugh when they see the “buzz” about 3D printing – I get calls every day of the week from prototyping companies in China offering me CNC’d parts in ABS for HALF the cost of a typical SLS or SLA. Most times product designers are designing for mass manufacture so we don’t take advantage of the unique opportunities offered by additive technologies – we don’t need to, so for us the best prototype is a CNC’d one in the production material rather than some exotic SLA resin that goes warped if you leave in the sun.

    So returning to copying, the tools available now make it easy. Almost anyone could copy a physical part now. So how do you control that? The only way is to control the manufacture.

    Honestly, I see DRM (Digital Rights Management) being built into most commercial 3D printers and prototyping machines in the next 10 years – either on a company basis or a global basis. For consumer 3D printing you will have an iTunes like set up that makes buying easier than stealing (as iTunes is for most ordinary consumers). In many respects I don’t see additive manufacturing as being the long term issue for copying. The long term issue will remain mass manufacturing capabilities – cheap machine tools, cheap tooling and a low cost manufacturing base. There is no solution to that one.

  4. I find that Hyundai and Kia often copy styling cues from other car makers. The old Hyundai Pony, for instance, looked like the old Honda Accord. Some of today’s models copy Lexus.

    Chrysler once sued some car companies because their car grills had vertical openings, like on Jeeps. Problem was, some Jeeps have slanted openings, and in any case, Chrysler lost.

    As for Chinese mfg’er selling your products under a slightly different name, that’s known over there as “the third shift.”

    Speaking of Lexus, they once ran a two-page ad boasting that they don’t use “AutoCAD” for styling. Well, nobody does, but their point was they create design sketches by hand.

  5. Where do you draw the line? What happens when you have spent £150k designing tooling marketing a new product only to find it is copied 5 weeks later. Copied as in exactly copied. I’m not talking industrial components. I’m talking £2000 value domestic products which sell on quality and design. The shape defines the product. Are you saying we don’t try to protect this?

    What verbatim copies do is devalue the original. They devalue the company that invests in their development. Worst of all they devalue the consumer’s investment. So we spend months tweaking shapes making prototypes optimising the design to get some bastard taking a mould of our product and flogging off a copy. Are you seriously saying we ignore that?

    Design registration (think patenting shapes) is actually a bit of a toothless process. If has changed in recent years do it is easier to focus in on details but on the whole fighting it remains a costly exercise. 99% of the time a lawyers letter holds up copies in certain markets but in many growth markets you can forget protection.

    The answer though is not to let it become a free for all. The answer is to maintain strong back office capabilities and quality manufacturing with good sales and distribution. All of which costs money.

  6. Nothing comes from nowhere, most new ideas are amalgamations of previous ideas. This notion that you can not take ingredients and concepts from others because you’d be “stealing” is limiting to new and exciting, well… anythings!

    Of course if you are taking an idea and adding nothing new, or nothing new that is significant enough of value, it should be frowned upon.

    The exact when’s and how’s is very difficult to judge.

  7. First let us please acknowledge that the Pontiac G8 was almost entirely designed, engineered and manufactured in my home country, Australia, by Holden a subsiduary of GM. So it’s rather poignant that Matt picked a Holden Commodore to use as an example. Matt has raised an invigorating topic for me, which cover the topics of politics, copyright, and the law. Let me start by declaring my political position. I am an anarchist. I am also a draftsman, who out of work, has returned to my art. The last few years I worked for Deks Industries and we designed and manufactured, or more correctly paid Vietnamese factories to manufacture our product. These Vietnamese factories in turn paid their workers less than $1 an hour. A large part of Deks Industries sales come from roof flashings and over many years these were refined in their design by mostly one man – Ray Pedersen, the toolmaker. However apparently they haven’t been patented, probably because the subtle little things that go to make them better are difficult to describe in order to get a patent. Also getting a patent on an ever improving design is senseless when you consider the cost. Recently the biggest retail seller of these roof flashings had a Chinese manufacturer reverse engineer them. They are an exact copy! Design-wise and even the dimensions would pass Deks QC! There is very little Deks can do – their best bet is to improve again. What would be the point of paying expensive  lawyers when Deks had done a similar but not as blatant process. My job was to look at just about every competitor from around the world and pick the best features and create new products (Deks produce an enormous range). My only concern would be that the quality of materials from the Chinese product as this is where the impoverished foreign manufacturers will always try an increase their profit. As we all know this can be fatal in some products.
    Ecspecially with modern CAD it is so easy to reverse engineer products. Stylish western cars have their marketable curves copied with a wave of a handheld 3D scanner and this brings me back to the question Matt asks – where do you draw the line? May I now point out that in any anarchist society – nobody would “own” anything – least of all a design. It would be there for anyone to play around with and improve upon. At this point I’d like to remind people that Mercedes Benz never hid any of their research and development when it concerned safety as they rightly saw it being for the benefit of everyone. Mercedes Benz allowed other car manufacturers to adopt its patented technologies – the best example being airbags. I laugh at Apple’s attempts to control what they consider their design, it’s ludicrous in the extreme and everybody but the greedy lawyers know it too. So where do you draw the line? Matt mentioned the subject of moral convictions and the law – may I answer with the following – anything goes! Matt seems to be leaning a little in this direction.
    I’d also like to offer another example – however it has little to do with CAD. I am a photorealist painter and my art practice involves me appropriating anothers image and painting it. I have been challenged about this recently by the source photograher of my latest work which can be seen by clicking on my name/avatar. Does the huge investment in my time replicating in another medium (paint) mean I owe someone anything?

  8. Yes, to extend my twitter points:

    1. Making a CAD model, on your own, in my opinion, is never stealing. If someone provides this CAD model freely to others, there was still no stealing. I even think I should be able to sell that CAD model for money. I use the word stealing, because the proper terms involve legal definitions, not my opinion.

    2. So if I create an exact (to the best of my abilities) CAD model of:
    a. A 1968 Pontiac Firebird
    b. an iPhone
    c. Ulrich Schwanitz’s “impossible triangle” (which is really a Penrose Triangle, and was first created by the Swedish artist Oscar Reutersvärd in 1934)

    Then I haven’t really copied anything. I have made a CAD representation of another physical object. I think the “illegal” part should come from when you try and distribute/sell/etc this object as being the original, and not as a duplicate.

  9. Moral convictions, congratulations for having them Matt. Am I just getting older and cynical, or have morals become less and less important in today’s society?

    Anything goes, I guess. Morals, beliefs, responsibility, control seem to be lacking today. Greed, making money at any cost and firing people to make more money, abounds. Companies making crappy products using child labor, $4.00 shirts at WalMart, appliances that crap out after 2 years, companies outsourcing for the cheapest price, CEOs making $16million/year….

    Devon

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