2017 Transparency Report
Welcome to the 2017 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 previous transparency reports, which are available here.
The key take aways from the 2017 report are:
- The number of requests that combine trademark and copyright claims (a practice that can complicate compliance) has remained steady as compared to last year.
- 16% of all accusations of trademark infringement were withdrawn by the rightsholder after a negotiated settlement between the accuser, Shapeways, and the targeted Shapeways user. Often this involves modifying the terms of a product listing.
- 50% of all accusations of trademark infringement were withdrawn after being challenged by Shapeways for overstating the rights of the accuser. Note that this number is potentially misleadingly high and will be discussed further below.
- All 4 DMCA counternotices submitted by users were successful.
This report will also help everyone understand how the legal regimes that govern Shapeways impact how Shapeways operate. 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 Counsel Michael Weinberg at mweinberg@shapeways.com.
Significant Findings
As with previous years, the most significant findings in this transparency report relate to accusations of trademark infringement. Shapeways and others have raised concerns related to this issue a number of different times. The absence of DMCA-style statutory safe harbors for sites such as Shapeways means that users accused of trademark infringement do not have an easy opportunity to challenge those accusations.
The opportunity to challenge accusations may work as a check on potentially frivolous accusations of infringement in the copyright context. In addition to the 4 users who successfully challenged DMCA takedown notices (all 4 who attempted to challenge them), the possibility of a challenge – combined with the possibility of sanction for improper accusations – likely exercises a moderating force on claimants. Generally speaking, copyright-based takedown requests tend to be less likely to raise questionable claims than trademark-based claims.
Aware of the fact that users cannot easily challenge an accusation of trademark infringement, Shapeways reviews such accusations of infringement with a comparatively high level of scrutiny. Shapeways is especially wary of claims of trademark infringement related to listings for accessories and add-ons that are clearly using or intending to use marks in ways allowed by trademark law.
When the shop owner appears to be attempting to use the mark in a nominative manner, Shapeways will often discuss possible alternative names or descriptions with the rightsholder and then present the suggested alternative to the user in question. If the user accepts the proposed modification to the listing the listing is not removed and the complaint is retracted.
If the original use of the mark is clearly allowed under trademark law, Shapeways will refuse to remove the model or alter its name. If the rightsholder accepts such a refusal, targeted users are not alerted to the accusation of infringement and are likely unaware of the dispute.
2017 Data Distortions
This dynamic - where a rightsholder brings a claim of trademark infringement against shop owners and Shapeways believes that the use of the mark does not qualify as infringement - is responsible for some of the distortions in the 2017 data. A large rightsholder brought a trademark-related takedown request targeting over 600 models for removal from the site. Upon review, Shapeways believed that a number of the models in dispute were not using the mark in a way that violated the rights of the rightsholder. Shapeways and the rightsholder entered into ultimately unresolved discussions seeking a resolution. Over half of the originally accused models remain in the Shapeways marketplace pending its eventual resolution.
During those discussions the rightsholder also took an alternative approach to some of the targeted models. Although the original claim accused the models or model titles of trademark infringement, the rightsholder subsequently submitted a properly formatted DMCA takedown request targeting the media or images accompanying the listing. In response, almost 250 models had some descriptive media removed from the listing while the model itself remained.
Since this was an unprecedented response by a rightsholder and one that Shapeways believes is unlikely to be used in the future, those models will be counted as targets of unresolved trademark claims but not copyright claims for the purposes of this analysis.
As discussed above, this entire process could have been avoided if the users were able to challenge accusations of infringement directly. While flawed, the DMCA process allows rightsholders and users to resolve their disputes directly without resorting to formal litigation. This process also allows the user and rightsholder to resolve their dispute without being intermediated through Shapeways.
Data
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 2017 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 here.
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 2017 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 2017 we received no such requests.
