By now, you have probably heard about the Liberator, a 3D printed plastic gun designed, assembled, and test-fired by Cody Wilson of Defense Distributed. Is it legal?

Last week, the State Department’s arms export office demanded that Defense Distributed remove CAD files for the Liberator from its website. Defense Distributed complied with the takedown letter right away, despite strong language on its website promising it would be “a home for fugitive information” and “No object file will be censored unless it is malicious software.” Predictably, it didn’t take long for the CAD files to make their way to BitTorrent, where they’ll be available forever.

Angle 1: Arms Control

It’s worth reading the letter from the State Department, which is only two and a half pages long. In a nutshell, the letter demands the takedown while it decides whether publishing firearms-related CAD files online violates ITAR. ITAR, which stands for the International Traffic in Arms Regulations, are rules that the State Department promulgated under the Arms Export Control Act. One part of ITAR is the United States Munitions List, which is a master list of products and technologies that can’t be exported without prior government approval under a licensing system. Because Defense Distributed didn’t seek an export license, there’s a problem.

Are CAD files munitions? The State Department believes the Liberator files fall under the Category I of the US Munitions List, which covers firearms and related “technical data.” Section 120.10 of ITAR says “technical data” includes “blueprints, drawings, photographs, plans, instructions or documentation” about “the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” — so that appears to cover CAD files for guns.

Unsurprisingly, Defense Distributed is already saying (melodramatically) that it will fight the takedown demand: “It seems we may have to have our rights declared in court to simply keep developing gun files to put into the public domain. DD’s right to exist is being challenged.”

What will probably happen next is that Defense Distributed will apply for an export license, which the State Department will deny, and Defense Distributed will sue to get a judge to issue an order that the State Department can’t block it — and that is where things will get interesting.

Angle 2: Gun Control Laws

Because the Liberator is made mostly of plastic, Defense Distributed also has to contend with the Undetectable Firearms Act. This law, first passed in 1988 and renewed in 2003, makes it illegal to “manufacture, import, sell, ship, deliver, possess, transfer, or receive” any firearm that can’t be detected by x-ray machines. Gunsmiths with a federal firearms license (Wilson has one) can build guns to test them for compliance, but other than that, undetectable guns are completely contraband. Wilson packaged the CAD files with detailed instructions, including an admonition to DIYers to include a block of metal in a hole specifically included in the design for that purpose. It’s up to the person doing the printing to comply, though. If you don’t put the metal block in, you could be in big trouble. It is probably just a matter of days until the ATF or FBI start knocking on the doors of people who’ve already started posting pictures of their 3D printed guns online.

Notably, the Undetectable Firearms Act bans the atoms, but not the bits: you can possess CAD files for an undetectable firearm without violating it. That’s an easy legislative patch, but it will  run into free speech problems.

Angle 3: First Amendment Meets Second Amendment

I predict the Constitutional wrangling will focus on the First Amendment, not the Second. (For foreign readers, the First Amendment to the US Constitution provides extremely strong protections for citizens’ freedom of speech, and the Second Amendment provides a right “to keep and bear arms” — although the language is a mess and reasonable people disagree on how to interpret it.) This is going to spawn some strange bedfellows: I would not be surprised to see the NRA and ACLU on the same side in this fight.

Why is this a First Amendment case? One of the issues is whether the government can prevent citizens from publishing gun blueprints. A big gateway question, though, is how to characterize Defense Distributed’s CAD files in the first place. Is a CAD file expressive speech that should be protected, or a functional thing that should be regulated? This distinction is important because the government has tremendous power to regulate things, but far less power to regulate speech. When courts first started to come to grips with software, they came out on the side of protecting it as speech despite its functional aspects, but they might view 3D printing files differently because when you “run” them, you get things.

President Clinton’s Executive Order No. 13026 relaxing the crypto ban (more on that below) recognized the speech–functionality distinction:

Because the export of encryption software, like the export of other encryption products described in this section, must be controlled because of such software’s functional capacity, rather than because of any possible informational value of such software…

In addition to the CAD files themselves, there is also Wilson’s act of publishing them. Is the act of publishing a functional gun blueprint speech? Two Supreme Court free speech cases give a partial roadmap.

The first is United States v. O’Brien, in which the Supreme Court upheld a criminal conviction for burning a draft card. The Court found the defendant’s conduct was expressive, but still upheld his conviction because the law under which he was prosecuted — a prohibition on destroying draft cards — had justifiable military purposes that outweighed his free speech right. One could see courts today taking a similar path by finding that the government’s interest in controlling the flow of firearms and military information outweighs Defense Distributed’s right to publish gun design files.

The other is the Pentagon Papers case, New York Times v. United States. There, the New York Times sought to publish damning internal Pentagon documents about the Vietnam War. Even though the material was directly related to national security, the Court allowed the New York Times to go forward, finding the newspaper’s speech interest was greater than the government’s interest in preserving the confidentiality of classified information. The case helps Defense Distributed to the extent it struck down a prior restraint on speech, but publishing proof-of-concept plastic pistol blueprints is not in the same league as exposing government misconduct.

The Crypto Cases

This isn’t the first time courts have had to sort out the mess when innovation hurtled into arms control law and the First Amendment. The US Munitions List used to cover a wide range of cryptography software, a restriction only relaxed in 1996 by an Executive Order by President Clinton — who, even then, perhaps, realized the futility of censoring the spread of code. Before that, though, PGP creator Phil Zimmerman was criminally investigated, but never charged, for violating ITAR. The issue made its way to the courts in 1997 in Bernstein v. US Department of State, where Daniel Bernstein, a UC Berkeley computer science researcher, sued to be allowed to publish his cryptography research, which included working code. Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California found that it was unconstitutional for the government to prevent Bernstein from publishing his crypto software. Judge Patel held that blocking Bernstein’s publication amounted to a prior restraint on his speech that violated the First Amendment.

Defense Distributed will likely follow Bernstein’s path. The State Department’s takedown demand probably qualifies as a prior restraint, to which courts are incredibly hostile. But the ability to download a file, press “Print,” and have gun parts come out could also tip some judges toward calling gun CAD files functional things and allowing the government to regulate them.

Just Because You Can Doesn’t Mean You Should

There’s more to this than law, however. There is also ethics and common sense. Even if you can publish 3D-printable gun blueprints, should you? What are the consequences of doing it?

Nobody in the 3D printing industry is going to thank Wilson for bringing heat from the State Department and Congress. Wilson’s stunt could well lead to new restrictions and regulations on the nascent digital manufacturing industry, even before it has had a chance to figure things out for itself. (Scaremongers like these clowns won’t help either.) And for what? The Liberator isn’t about to liberate anybody — it will probably melt or explode after one or two shots. Given the Bernstein case, even if he wins, Wilson may not even be breaking any new legal ground.

Article courtesy of TechCrunch

The German Bundestag passed an addendum to the country’s copyright laws earlier today, the so-called “Leistungsschutzrecht,” that allows publishers to charge aggregators and search engines for the content they index and re-publish on their sites and in their apps.

An earlier version of the ancillary copyright law would have meant that Google, Google News and other aggregators and search engines would have had to pay, even if they just displayed “single words or very small text excerpts” from copyrighted text. Before passing the law, however, the Bundestag watered it down considerably and now allows for the use of snippets.

Sadly, though, as Der Spiegel reports today, it’s unclear how the law actually defines the word “snippet”; the current assumption is that everything up to about 160 characters would still be okay.

A number of German publishers lobbied their government to push the stronger version of the law, but the government decided to at least make the law compatible with the way Google currently indexes and displays snippets. Thanks to this, Google will likely not have to pay for uses of text up to about 160 characters. Startups and aggregators like Flipboard and others will likely have to reconsider how they use texts in Germany or start paying a license fee (content older than one year is excluded from the law).

A Google spokesperson told Der Spiegel that the company thinks the new law is “neither necessary nor useful” and that it will only “hurt German Internet users and the country’s economy.”

The organization of German publishers, of course, is rather happy about the new law (though given that they do seem to be a bit behind the times, they would have probably preferred linking to their texts to be made illegal) and argues that it provides publishers with a framework for licensing their content to aggregators.

While the German newspaper industry is still in relatively good shape compared to the U.S., most of the publishers also know that the age of the printed paper can’t last. Just like most of their counterparts in the rest of the world, though, they struggle with finding new ways to monetize their online content. While they had originally hoped that Google could subsidize their operations through licensing fees for a while, chances are they will now have to sue aggregators and startups instead.

There is a very small chance that the Bundesrat (the upper house of the German Parliament) could still kill the bill. Most pundits, however, currently think that this is very unlikely.

Disclaimer: I built a small German tech aggregator that could’ve been affected by the original version of the law.

Image credit: Digitale Gesellschaft

You might not think that something like a website’s Terms of Service wouldn’t be all that interesting, but you’d be wrong. After that post about how awesome 500px’s Terms of Service are (tl;dr: they translate them into human speak), the inbox kind of blew up with questions. Is anyone else doing this?, emailers wanted to know, can I talk to them? (Also: hey, stupid, Aviary has done this forever. Thank you, thank you, and yes, the post is updated.)

Regardless, one email stood out from the crowd. It described a newly launched legal service called SnapTerms, which provides startups with simple, reasonably priced, and personalized Terms of Service and Privacy Policies.

The Sarasota-based company, only a few months old, was founded as a side project by legal entrepreneurs Mike Kolb and Aaron Kelly, the latter who’s an attorney specializing in Internet law. With the SnapTerms service, startup founders on limited budgets have an alternative to the naughty little practice of copy-and-pasting from another website’s Terms of Service or having to dive deep into their own pockets to pay a lawyer thousands of dollars via billable hours.

Explains Kolb, SnapTerms is sort of the sweet spot right in between the copy-and-pasting and paying big bucks.

At SnapTerms, users can choose from one of the three different packages: a Pro plan ($149) offering Terms of Service and a Privacy Policy; a Pro Plus plan ($299) that adds a few things like a complete site review, support for sites that take credit cards, and a 30 minute consultation; and finally, a Custom Plan (starting at $299), which adds COPPA compliance support, and support for SaaS companies.

The plans offer different levels of support for revisions, too. For example, on the basic plan, you get one revision within the first 48 hours. On the mid-level plan, it’s one within the first three month. (Custom plans vary).

Oh, and they can also make your Terms funny, so your customers will actually read them. For an example of how funny legalese can get, you can check out SnapTerms’ own Terms here.

Kelly has experience writing terms for sites other than startups, including celebrity fan sites, affiliate, e-commerce, diet sites, and more, so the company isn’t limited to supporting early stage startups, although it does have a couple of startups that have been featured here on TechCrunch as paying customers.

Attorney-client privilege means I can’t blog about which ones unless they give word, so we’ll update if any agree to come out of hiding. In the meantime, you can check out Photodropper, Sevacall, or Murderdate for some current, legally-approved examples. SnapTerms has about 100 clients to date, despite not having done press or having advertised (save for once on Startups.com). Almost all the sign-ups have been word of mouth, Kolb tells me.

Assuming this takes off, Kolb says they may expand to offer a network of lawyers, many of whom would likely do the work on the side.

Address a need. Fulfill it for an affordable price.

Not a bad idea, SnapTerms. Not bad at all.

Article courtesy of TechCrunch

Your access to and use of the Site may be interrupted from time to time as a result of equipment malfunction, updating, maintenance or repair of the Site or any other reason within or outside the control of the company. The company reserves the right to suspend or discontinue the availability of the Site and/or any Service and/or remove any Content at any time at its sole discretion and without prior notice. The company may also impose limits on certain features and Services or restrict your access to parts of or all of the Site and the Services without notice or liability. 

Any idea what all the above just means? Did you fall asleep while reading it? Sadly, this is what a pretty typical Terms of Service looks like – you know, the boring, inscrutable legalese that lays out the relationship between you, the user, and the service in question. No one reads these things, yet you’re beholden to them whether you like it or not.

Which is why what hot Flickr competitor 500px has done with its Terms of Service is so refreshing – it explains the freakin’ thing in everyday language.

The startup just rolled out new paid membership offerings on Monday to cater to casual shutterbugs, whereas before the company had focused primarily on professional photographers. And for those new users, who are just looking to get the gist of things – and who are less concerned, perhaps, with the IP rights surrounding their photos –  500px’s Terms are a welcome sight.

When you visit 500px.com/terms, the actual Terms of Service are written in full-on lawyer mode on the left-hand side of the page, while the spirit behind them is explained in brief, everyday language on the right.

For example, while it took a lawyer two paragraphs to explain what 500px is in a section called “Description of Service,” the short and sweet “Basically” section wraps it up in a sentence:

We provide services that allow you to create portfolios and we will develop more features and services in the future.

Duh. That’s easy.

Seriously, startups – why isn’t everyone doing this?

After all, Terms of Service are kind of a big deal. It only makes sense that users should understand them.

Case in point: Pinterest recently had to update its Terms of Service to clarify how it can commercially use the information posted on the site, in an effort better convey the spirit behind its words. Apparently, the part about selling users’ content angered some folks, prompting CEO Ben Silbermann to explain, “our original Terms stated that by posting content to Pinterest you grant Pinterest the right for us to sell your content. Selling content was never our intention and we removed this from our updated Terms.”

Article courtesy of TechCrunch