In French law, “You don’t talk about a copyright, the economic usefulness of a good, you talk about a philosophical element,” Matthieu Farcot, a French intellectual property lawyer, told me. “It tries to protect the stature of authorship.”
Often called Moral Rights, French creators and their heirs are entitled not only to remuneration, but a high degree of creative control on how their works are used or represented in the world. It was this idea, of controlling how the artist's creation is used by others, that brought the estate to issue their Cease and Desist against Kildall and Cera. Farcot is particularly interested in how 3D printing is influenced by the mishmash of Berne laws governing the world. I spoke with him while he was waiting on an Ultimaker print of toys he was giving children in an upcoming weekend workshop he was teaching.
“It’s not black or white,” Farcot said. “It’s not easy for the creators, Kildall and Cera, to... say they should go ahead, go to court and they will win easily.” Facing a ruinously expensive legal fight thousands of miles and an ocean away, Kildall and Cera backed down. They quietly removed the files from Thingiverse, and negotiated a resolution with Duchamp’s heirs.
If the case was too hard to fight in French court, it would have been almost too easy to fight in U.S. court, the jurisdiction that could affect the lives of Kildall and Cera. “So under U.S. law, the chess pieces are absolutely in the public domain... and a U.S. court won’t honor French moral rights. I don’t see any practical way for the Duchamp estate to sue over the 3D-printed chess pieces in a U.S. court,” said Mitch Stoltz, a senior staff attorney at the Electronic Frontier Foundation who specializes in intellectual property.
“Under Berne, it’s the shorter copyright term that prevails,” Stoltz told me. “So generally, if a work is public domain in one country, a rightsholder from a country with a longer term can’t sue for infringement in the shorter-term country.” When the United States joined Berne in the 1980s, it claimed that existing laws on slander and libel would cover what Moral Rights did in Europe. But libel and slander are extremely difficult to prosecute in U.S. Courts because of the First Amendment; the U.S. hadn’t been forthcoming about its ability to enforce anything like Moral Rights in the French conception.
So what could the practical consequences have been, had Kildall and Cera ignored their conflict with Duchamp’s heirs? Mostly exile from France. “I thought about the consequences of being barred from France for life, which would be an amusing story to tell. I could live with this, but it is not a desired outcome,” said Kildall, who vacationed in France this year.
Makerbot, too, might have had to tangle with more legal trouble if they wanted to continue hosting the files on Thingiverse. In theory, the French government could request French ISPs censor access to known hosting location of the files as the result of a court order, but making them actually unavailable in France would have been a practical impossibility. “The core thing is that technology always has an advantage in speed and diffusion,” said Farcot, the French intellectual property lawyer. “Technology sometimes exposes the protected good to new options that are not necessarily covered by the legislative framework. So it takes time, but I don’t see the system exploding to the benefit of free 3D forgers… (in a way) that will allow you from one day to the other to start printing reproductions of Rodin statues and selling them for your own benefit, for example.”