The Replicator and the First Amendment Kyle LangvardtARTICLE - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Replicator and the First Amendment
Kyle Langvardt
ARTICLE

  The full text of this Article may be found by clicking the PDF link on the right.

 

As 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint. Real-life technology may never reach that endpoint, but our progress toward it has accelerated sharply over the past few years—sharply enough, indeed, for legal scholars to weigh in on the phenomenon’s disruptive potential in areas ranging from intellectual property to gun rights.

 

This Article is concerned with the First Amendment status of the digital blueprints. As of August 2014, it is the first law review article to address the intersection of 3D printing with free speech beyond the specific context of 3D-printed guns. I show that as “replicator” technologies pick up, the distribution of digital blueprints will begin to replace the distribution of goods as a central regulatory concern. This transition, in turn, will inspire First Amendment challenges to efforts by the government to restrain or penalize the distribution of the files. A handgun licensing law, for instance, might be said to violate the First Amendment prohibition against prior restraints if it were applied against a digital blueprint’s “informational” content.

 

Such arguments should fail, and fail badly, in most situations. Indeed they will have to, lest free speech become a wide Lochner-esque freedom to manufacture. Instead, I will argue that the “informational” appearance of a digital blueprint is constitutionally irrelevant, and that the First Amendment should not even come into play absent some extrinsic reason to think that the digital blueprint is being used for an expressive purpose. The presence of a digital blueprint in a fact pattern, in other words, should not in itself affect the First Amendment analysis either positively or negatively. I nonetheless express some skepticism, drawing on turn-of-the-century case law on software and recent case law on medical data, that the Supreme Court will maintain this attitude of equanimity with perfect consistency.

 

INTRODUCTION

 

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D printing, also known as “additive manufacturing,” is a roughly thirty-year-old technology for manufacturing objects from digital models known as “CAD” files.1 The most common variety of 3D printer works much like a traditional inkjet printer. Just as an inkjet printer extrudes ink onto a paper surface in two-dimensional shapes, a 3D printer prints thin, flat shapes with molten plastic goo. Each two-dimensional shape is only one layer in a three-dimensional object, and each layer is printed on top of the last. Thus, given a CAD model of a cone pointed upward, a 3D printer prints first a circle, and then a slightly smaller circle on top of the first, and then a slightly smaller circle on top of the second, and soon until a plastic cone has been built from the digital image.2

 

Until a few years ago, these technologies cost too much and took up too much room for small consumer use.3 Today, an entry-level desktop 3D printer costs under $1,000 and the plastic filament costs about $15 per pound.4 The entry of 3D printing to a small-consumer market, together with recent advances allowing industrial-level 3D printers to print metal objects, has the hype cycle in full swing.5

 

And as 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint.6 Star Trek’s replicators, after all, are the logical conclusion of the 3D printer’s premise. All improvements in manufacturing technology, including improvements developed before 3D printing, consist of cost reduction.7 The 3D printer (or more accurately, the 3D printer of the near future) stands out from these past improvements only in that 1) the reduction in manufacturing cost is so precipitous that individual users can manufacture objects more cheaply than they could purchase them from a larger-scale industrial manufacturer and 2) it offers a “single tool” means that can produce any shape without changing any aspect of the production process.8 3D printers and their successors along the close approach to zero marginal cost can all be thought of as approximations of the replicator, which reduces the cost to all the way to zero.9

 

A true zero-marginal-cost replicator would extend the speed and abundance of the Internet beyond the traditionally “informational” sphere into the physical world. Just as Internet users know very little scarcity of access to public information, replicator users would know very little scarcity with respect to material goods. These goods would be distributed, copied and shared in all the same ways, and with the same degree of ease, as the “informational” content distributed over the Internet today. The Internet’s economic and legal disruptions—think Napster and newspapers— would spill over from the media and telecommunications industries into markets for every other sort of good as the technological “firewall”10 between information goods and physical goods industries fell away.

 

Real-life technology may never get all the way to a zero-marginal-cost replicator. Today’s 3D printers are far from it. Nevertheless, we have accelerated sharply in the replicator’s direction over the past few years—sharply enough, indeed, for President Obama’s 2013 State of the Union address to celebrate 3D printing’s “potential to revolutionize the way we make almost everything.”11 This “revolution” is already occurring at the industrial level, where enterprise-level 3D printers have been used to build medical prosthetics,12 automotive components, and quick prototypes in various sectors.13 A Chinese firm recently built ten houses in a day using four giant 3D printers.14

 

The “revolution” is further off at the consumer level, where the available materials are shoddy, print times are long, and the learning curve is steep.15 A paper has argued that for a typical household, an entry-level 3D printer pays for itself over the course of a year by reducing the prices of a typical basket of consumer goods—salt shakers, a safety razor, lots of iPhone cases, pot holders.16 These items are available on Thingiverse.com, the Disneyland of 3D printing.17 It is hard to know what to make of the authors’ conclusion. Much of their “basket” appears to be filled with dollar-store chintz as opposed to useful or necessary goods, and the authors admit the fact that contemporary 3D printing still requires a considerable degree of human intervention to reach a finished product.18 At the consumer level, it is hard at this point to see any real savings. But a more mature replicator technology, one that could tool a wider range of goods at higher quality and near-zero cost, would dramatically change a household’s entire pattern of consumption19 and, as President Obama said, “revolutionize the way we make everything.”20

 

Such a “revolution” implies a separate revolution in the way we regulate everything that we make. Despite the present fixation on gun manufacturing, intellectual property “piracy” and other intentionally subversive uses of replicator technology, the bulk of the disruption will be more mundane, and will reach all corners of the law of products. Professor Engstrom, for instance, has noted that the “democratization” of manufacturing will upend many of the industrial-age economic premises that underlie various impositions of strict product liability on merchants.21

 

In a replicator economy, the distribution of digital blueprints will replace the distribution of goods as a central regulatory concern. This transition, in turn, will inspire First Amendment challenges to efforts by the government to restrain or penalize the distribution of the files. A handgun licensing law, for instance, might be said to violate the First Amendment prohibition against prior restraints if it were applied against a digital blueprint’s “informational” content.

 

In Part I of this Article, I will assess the merit of claims that CAD files should fall under the First Amendment’s coverage— roughly speaking, whether they should be considered “speech”— in light of their informational content. If so, then the most aggressive interpretations of contemporary First Amendment doctrine could grind almost all attempts to regulate replicated goods to a halt. I then brief the merits of the coverage question, discussing along the way the lower courts’ attempts since the 1990s to grapple with similar questions in the context of computer software. I conclude that the “informational” appearance of a digital blueprint should be disregarded as constitutionally irrelevant, and that the First Amendment should not even come into play absent some extrinsic reason to think that the CAD file is being used for an expressive purpose. The simple presence of a CAD file in a fact pattern, in other words, should not in itself affect the First Amendment analysis either positively or negatively.

 

The point of Part II is to demonstrate that there is no way around regulating CAD files in a replicator-based economy. Over time, the extent of online policing will escalate in a roughly inverse proportion to the ongoing decline in manufacturing’s marginal cost. This escalation will eventually force the First Amendment issues briefed in Part I into the courts. Finally, in Part III, I outline some jurisprudential pitfalls that I hope the courts can avoid when the time comes.

 

A note on terminology: most of the arguments I make in this Article are not specifically addressed to present-day 3D printers and their accompanying limitations. As my cursory discussion above of the mechanics of 3D printing should make clear, I do not consider the contemporary technical specifications of 3D printers to be important to the First Amendment discussion.22 In fact, the points I raise here apply with increasing force to later-generation “replicators”23 that have transcended present-day limitations. As a theoretical construct, I will for much of the discussion assume that we are dealing with household-affordable “replicators” that, just as on Star Trek, produce objects out of thin air, and I will call them by that name: “replicators.” To be clear, the point of this construct is to call into the sharpest possible relief the First Amendment issues raised by near-zero-marginal-cost manufacturing; the point is emphatically not to make any long-term technological forecast.

 


 

*Assistant Professor of Law, University of Detroit Mercy School of Law. J.D., University of Chicago, 2007. I would like to thank my wife, Emmalyn Helge, my father, Arlen Langvardt, and my colleague, Richard Broughton, for their comments and support.


  1. Campbell et al., Atlantic Council, Could 3D Printing Change the World? Technologies, Potential, and Implications of Additive Manufacturing 1 (2011), available at http://www.atlanticcouncil.org/images/files/publication_pdfs/403/101711_ACUS_3DPrinting.PDF [http://perma.cc/5CL8-E76U]. CAD stands for “computer-aided design.”

  2. See The Printed World, Economist (Feb. 10, 2011), http://www.economist.com/node/18114221 [http://perma.cc/JW4H-RKYZ].

  3. See Campbell et al., supra note 1, at 5 (introducing “Desktop-scale 3D Printers,” and noting that 3D printing was, “in the past . . . relegated to large design and manufacturing firms”).

  4. 3D Printers & Supplies, Amazon.com, http://www.amazon.com/b?ie=UTF8&node=6066126011 [http://perma.cc/U9DF-PES6] (last visited Sept. 9, 2014). These prices are volatile, but representative of what was available on Amazon as of September 9, 2014.

  5. See Campbell et al., supra note 1, at 1.

  6. See, e.g., Replicator, Memory Alpha, http://en.memory-alpha.org/wiki/Replicator [http://perma.cc/SH9N-HZEP] (last visited Sept. 6, 2014); see also Star Trek: The Next Generation: Data’s Day (CBS television broadcast Jan. 5, 1991) (Data and Worf shop for wedding gifts using a replicator console); Star Trek: The Next Generation: The Defector (CBS television broadcast Jan. 1, 1990) (Romulan Sublieutenant Setal replicates a glass of cold water).

  7. See Jeremy Rifkin, Say Goodbye to Capitalism as We Know It, Market Watch (May 15, 2014, 6:29 AM), http://www.marketwatch.com/story/say-goodbye-to-capitalism-as-we-know-it-2014-05-15/print [http://perma.cc/6RJV-HGHX] (“Businesses have always sought new technologies that could increase productivity and reduce the marginal cost of producing and distributing goods and services, in order to lower their prices, win over consumers and market share, and return profits to their investors.”).

  8. See Campbell et al., supra note 1, at 1.

  9. See, e.g., Rifkin, supra note 7.

  10. See id. (“Economists acknowledge the powerful impact Zero Marginal Cost has had on the information goods industries, but until recently, have argued that it would not cross into the brick-and-mortar economy of energy, and physical goods and services. That firewall has now been breached.”).

  11. Barack Obama, President, United States, State of the Union Address 2013 (Feb. 12, 2013), available at http://www.whitehouse.gov/state-of-the-union-2013 [http://perma.cc/F67P-GDYF] [hereinafter 2013 State of the Union].

  12. Ariel Rothfield, Huntington Doctor Among First to Use 3D Printing Knee Replacement Surgery, WOWKTV.com (July 2, 2014, 6:50 PM), http://www.wowktv.com/story/25929980/huntington-doctor-among-first-to-use-3D-printing-knee-replacement-surgery [http://perma.cc/N3VM-WYFL].

  13. Campbell et al., supra note 1, at 4.

  14. Melissa Goldin, Chinese Company Builds Houses Quickly With 3D Printing, Mashable (Apr. 28, 2014), http://mashable.com/2014/04/28/3d-printing-houses-china/ [http://perma.cc/379D-3SH3].

  15. See Conner Forrest, What’s Holding Back 3D Printing from Fulfilling Its Promise?, ZDNET (Aug. 1, 2014), http://www.zdnet.com/article/whats-holding-back-3d-printing-from-fulfilling-its-promise/ [http://perma.cc/MX2C-V3JR].

  16. Wittbrodt et al., Life-Cycle Economic Analysis of Distributed Manufacturing with Open- Source 3-D Printers, 23 Mechatronics 713 (2013), available at http://www.sciencedirect.com/science/article/pii/S0957415813001153 [http://perma.cc/5S6Q-NN7Q].

  17. See generally Thingiverse, http://www.thingiverse.com [http://perma.cc/ZN9H-2DLY] (last visited Sept. 6, 2014).

  18. As my wife observed, a student leaving for college probably would save a good deal of money printing the things in the items in the basket, but the savings are less credible later in the lifecycle. The basket included the following eighteen items: iPhone 5 dock, iPhone 4 dock, iPhone 5 case, jewelry organizer, garlic press, caliper, wall plate; 12 shower curtain rings, shower head, key hanger, iPad stand, orthotic, safety razor, pickup, train track toy, Nano watchband, iPhone tripod, paper towel holder, pierogi mold, and spoon holder.

  19. See Campbell et al., supra note 1, at 9–11; see also Rifkin, supra note 7.

  20. 2013 State of the Union, supra note 11 (emphasis added).

  21. See Nora Freeman Engstrom, 3-D Printing and Product Liability: Identifying the Obstacles, 162 U. Pa. L. Rev. 35, 41 (2013).

  22. See James Grimmelmann, Indistinguishable from Magic: A Wizard’s Guide to Copyright and 3D Printing, 71 Wash. & Lee L. Rev. 683, 684 (2014) (“[L]et us start from the wisdom of Clarke’s Third Law: that beyond a certain point, the technological details no longer matter. What if 3D printers actually are magic?”).

  23. So long as I am talking about Star Trek-style “replicators,” I might as well call them “replicators” rather than “3D printers” to keep things straight. I would hate for readers picking up in the middle of this paper to think I am overestimating present-day technology. At any rate, I cannot imagine that the clunky expression “3D printers” will survive for long in a culture seemingly at the cusp of abandoning the “2D printer.”

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Kyle Langvardt*

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25 <span style="font-variant: small-caps;">Fordham Intell. Prop. Media & Ent. L.J.</span> 59

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