2016 Transparency Report

Welcome to the 2016 Shapeways transparency report. We believe that this transparency report will help our community understand how our internal processes and policies are working in practice. Shapeways exists because of its strong community, and that makes it important for the community to understand how our rules are actually impacting them. The transparency report is a snapshot of the system as a whole, as opposed to specific pieces that individual users may come into contact with. It focuses primarily on intellectual property-related requests we have received from rightsholders. It also contains spaces for requests from law enforcement, other types of government requests, as well as civil data requests. The report builds off of the data released in our 2015 transparency report, which is available here.

In reviewing the data from 2016, a handful of trends jump out:

• Intellectual property-related takedown requests almost doubled in 2016.
• 20% of trademark-related claims were withdrawn after low levels of scrutiny (more on that below).
• The number of notices that combined claims of copyright and trademark infringement – a worrying practice we highlighted in the 2015 report – has declined.

This report will also help everyone understand how the legal regimes that govern Shapeways impact how Shapeways operates. These legal systems impact much more than the Shapeways community alone. Governments should represent their citizens, and processes enshrined in law should reflect the intentions of those citizens. Understanding how governments are requesting data from Shapeways and how third parties are using government-sanctioned requests to obtain data from Shapeways is important to everyone. It is impossible to evaluate the laws that control how Shapeways operates without understanding how those laws impact Shapeways and the Shapeways community.

Finally, the report includes a warrant canary that allows us to disclose – to the extent permitted by law – how Shapeways has been impacted by secret government requests for data. If you have any questions about this report or would like clarification about any of the data it includes, please email the Shapeways General Council Michael Weinberg at mweinberg@shapeways.com.

Significant Findings

As noted above, the most notable finding in this report may be the number of trademark-related claims that were withdrawn upon review.

Problems with Accusations of Trademark Infringement

As we have highlighted in a number of filings before the United States Government, trademark takedown requests exist in a somewhat undefined legal space. Many rightsholders will submit trademark takedown requests in formats that largely follow the standards established by the Digital Millennium Copyright Act (DMCA). However, there is no DMCA-style statutory safe harbor framework for accusations of trademark infringement. As a result, users who are targeted by trademark infringement claims are not afforded the easy opportunity to challenge accusations against them by many online platforms including Shapeways.

Shapeways primarily reviews copyright-based takedown requests for compliance with the DMCA requirements. In most cases this does not include reviewing the substance of the claims because the targeted user is empowered to challenge a baseless accusation. However, since a user targeted by a trademark infringement accusation is not afforded a similar opportunity to challenge an accusation, Shapeways briefly reviews the substance of many trademark infringement claims.

It should be stressed that this review is not designed to be comprehensive nor to assess the relative strength of a claim. Instead, this review is primarily designed to weed out clearly incorrect claims (for example, an accusation of infringement on a mark which incorporates a common noun against a model that represents that common noun) or model titles or descriptions that clearly make nominal use of the mark (objects using the mark to explain compatibility with the product protected by that mark).

We believe that these are standards of review that any rightsholder should subject any claim of infringement to before submitting to a platform such as Shapeways. However, 20% of the trademark claims submitted to Shapeways failed to meet this minimum threshold and the submitting rightsholder failed to correct or augment them further when asked for clarification. That makes trademark claims the vast majority of the 27% of all claims that Shapeways flagged as defective. This rate once again illustrates the importance of a statutory mechanism that would empower users targeted by trademark takedown requests to challenge those requests without permission from the platform hosting the content.

Reduction in Double Notices

In our 2015 report we raised concerns related to notices that incorporated both copyright and trademark claims. In that report we noted that these notices often appeared to incorporate boilerplate language including many types of intellectual property rights without necessarily specifying which of those rights a specific model may infringe upon (“Brand is protected by copyright, trademark, design patent, and other rights which are infringed upon by Model”).

Besides adding a level of ambiguity to the proceeding, by potentially incorporating non-copyright claims these types of combined notices effectively remove the claim from the structures of the DMCA. In many cases the result of this removal is that the accused user cannot effectively challenge the accusation against them.

In light of these concerns, we were encouraged to receive many fewer of these types of notices. In 2015 582 (70%) of the notices we received combined copyright and trademark claims. In 2016 that number dropped in both absolute and percentage terms to 142 (9%) of the total. We appreciate that rightsholders are moving towards specificity in notices.

Data

This year we received 1525 claims, up from 833 in 2015.

1068 (70%) of those claims involved copyright, 2 (0.1%) involved patent, and 598 (39%) involved trademark. The percentages add up to more than 100% because some notices combined types of IP.

926 copyright-related claims (87%) only referenced copyright.

456 trademark-related claims (76%) only reference trademark.

142 claims (9% of all claims) combined copyright and trademark.

416 (27%) of all takedown requests contained a defect. 76 of these (20%) were corrected by the rightsholder. Shapeways did not comply with the remaining, uncorrected, requests.

4 of the 27 of copyright counternotices submitted by users were successful (14%).

Government and Law Enforcement Requests for Data

As we make clear in our privacy statement, Shapeways complies with government and law enforcement requests for data only upon receipt of valid and sufficient legal process. In 2016 we received no such requests. However, we are cognizant of the importance of maintaining transparency with our community about such requests. As such, we have broken out this section in this report even though we have no requests to report.

Shapeways also takes this opportunity to continue publishing a warrant canary. For as long as is lawful and valid, our warrant canary will appear in Shapeways transparency reports. For the period covered by this report Shapeways has never received a National Security Letter, FISA order, or other classified request for user data. You can learn more about warrant canaries, as well as find warrant canaries for other websites you may frequent, at CanaryWatch.org.

Civil Requests for Data

As with the government and law enforcement requests, Shapeways complies with civil requests for data upon receipt of valid and sufficient legal process. In 2016 we received no such requests.

Government Requests for Content Removal

In addition to governmental and civil requests for user data, we are aware that some governments request that content be removed from websites such as Shapeways. In 2016 we received no such requests.