Avoiding Clone Wars: The Uncertain Future of 3D Printing - Fordham Intellectual Property, Media & Entertainment Law Journal
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Avoiding Clone Wars: The Uncertain Future of 3D Printing

Avoiding Clone Wars: The Uncertain Future of 3D Printing

For a quick primer on 3D printing and its intellectual property implications, please read this article posted on the IPLJ blog last year. In addition, this video does a great job of explaining the process to those unfamiliar.

The popularity of 3D printing has been increasing rapidly over the past few years. While the high cost and complexities of 3D printers confined the phenomenon to industrial manufacturers and dedicated hobbyists, the relatively affordable printers available today are making at-home 3D printing a reality. Smaller printers can be purchased for around $1,000 and there is even a printer that can print other printers.

The possibilities of 3D printing are excitingly unknown. In addition to creating a limitless number of objects and tools, 3D printers have been used to manufacture replacement parts for automobiles, print a controversial firearm, and can theoretically create replacement organs and tissues for surgical transplants. However, important legal issues could possibly stand in the way of these potential developments. While some experts view 3D printing as the advent of a new industrial revolution, others may see these printers as piracy machines. How is this growing phenomenon supposed to handle these potential IP issues in order to avoid strangling the industry at its birth?

Similar problems have existed concerning the conflict between IP laws and emerging or radical technologies. Hollywood studios famously sued Sony when it began advertising an affordable Beta-format VCR in 1975. In the eyes of movie studios, VCRs were at-home copying machines and tools for piracy. The Supreme Court fortunately disagreed and the VCR and subsequent video market proved to be fruitful sources of revenue for studios. In a less favorable decision to emerging technology, Napster was sued and the Ninth Circuit declared its peer-to-peer file sharing service could be held liable for copyright infringement.

There are several reasons why few legal experts have spoken up on how the law will influence 3D printing. According to Peter Hanna in an article for Ars Technica, the promise of making anything, anytime, out of almost any material is so broad that nobody really knows how it will affect their industry either negatively or positively. Whereas with peer-to-peer file sharing it was obvious that the artists and studios were being blighted, it is not wholly certain how this printing technology will affect others. Second, 3D printing is still a relatively obscure industry with a high barrier to entry. “Trying to regulate a technology that’s not yet ready for prime time may simply be premature for lawmakers and lobbyists alike,” says Hanna.  Third, there hasn’t been a truly high-profile case of infringement within or against the community. As many remember, it wasn’t until Metallica complained about Napster that the music industry and legal community began to really pay attention. It seems very likely that 3D printing will inevitably have a “Napster moment” as it gains popularity, but it is up to the community to preemptively address the problem before courts decide their fate for them.

Revolutionary technologies are uncertain and unpredictable and attempting to foresee the landscape of 3D printing in the next few years is nearly impossible. However, experts have suggested several different approaches in anticipation of upcoming legal problems.

According to Brian Rideout and his paper, “Printing the Impossible Triangle: The Copyright Implications of Three-Dimensional Printing,” copyright law will impact 3D printing in two possible ways: printing will either be subject to expanded copyright laws or the printing community can attempt to forego the traditional copyright regime altogether.

On the expanded protection side, one way copyright law would control the spread of 3D CAD files would be to expressly forbid the very act of making 3D models from scans of real world objects for commercial purposes. However, according to Rideout, “this suggestion seems inapposite to copyright law as it could deprive the public of the ability to make use of a tool capable of non-infringing uses.” In addition, a stricter IP enforcement policy for 3D printing would limit the ability of the 3D printing community to fully explore the nascent printing technology out of fear of infringement lawsuits.

In contrast, Rideout suggests an alternative approach spearheaded by the 3D printing community which relies heavily on self-policing. 3D printers should continue to maintain and emphasize an open source system, whereby ownership and control over designs is spread over all individuals who contribute to the development and implementation of the designs. The community should also develop a system for flagging potentially infringing objects “in a way that would not chill speech and hamper collaboration.”

The problem, in terms of intellectual property violations, is not with the technology itself but what the technology is capable of. However, it is highly advisable that the 3D printing community get out ahead of the courts in order to prevent a dismantling of its industry. As Hanna remarks, “The community has a unique opportunity to build synergistic bonds with artists, designers, inventors and companies of all kinds to jointly exploit 3D printing technology in new and lucrative ways,” and thus the 3D community should work with copyright and patent holders to avoid a “versus atmosphere” seen in IP disputes over the past years between music or movie studios and emerging technology developers. At the same time, rights-holders should avoid being too heavy-handed with intellectual property enforcement since “engaging in extensive litigation early on may forestall easy opportunities to commercialize the technology and profit from decentralized distribution.”

Regardless, this is a very exciting time to pay attention to both 3D printing technology as well as its implications on the intellectual property realm. As the physical-to-digital transition is increasingly prevalent and the lines between a physical object and a digital description of that object continue to blur, it is very likely that intellectual property will guide the legal and commercial terrain of these new technologies.

Greg Mantych

Greg Mantych is a second-year law student at Fordham. He is originally from St. Louis, Missouri. When he is not focusing on law school, he spends time watching the St. Louis Cardinals and riding his bike. His preferred bagel is an everything with lox spread, toasted.