Decentralizing the Means of (Re)production

Although still the province of tinkerers and hobbyists, 3D printing technology has matured significantly in the last few years and seems poised to hit the mainstream. Commentators have analogized the current state of 3D printing to the era of hobby computing that existed before Apple, IBM and Microsoft pushed it into the mainstream. It is indeed an exciting time for 3D printing. 3D printers like the Makerbot Replicator 2 and others are pushing the quality and price of 3D printers to a point where mainstream consumers may begin to take notice. Once 3D printers become cheap and good enough to produce most everyday useful objects there is nothing stopping them from becoming as ubiquitous as the inkjet printers that occupy every home office or computer room. We live in a world where objects can be distributed virtually and created in the home.

3D printers operate in much the same way as their inkjet cousins.  A 3D file, created either using 3D modeling software or by scanning a real object, is sliced into 2D cross-sectional areas which are then printed in plastic, layer by layer. The process is so versatile that almost any object can be printed using a 3D printer. The only real limits are from the size of the printer and the type of material.  Current applications are limited, but as the technology improves the possibilities will invariably increase.

The Implications of Decentralization

When things are produced in a factory, they are easy to police.  Factories that produce knock-offs can be shut down and their owners prosecuted. There is still a cost for copyright, patent or trademark holders to enforce their rights, but they can nevertheless do it efficiently because each organization necessarily engages in a lot of infringing activity.  The same is not true as against individuals. Anyone who has downloaded music illegally knows how easy it is to get away with.  It is simply not worth it for copyright owners to go after individual music pirates.

In the days before MP3s and personal computers, it was pretty easy to control music piracy. Music was distributed on physical media through traditional retail channels.  When few people had the ability to reproduce music, pirates could be easily policed by inspecting retail stores and flea markets. However, with the introduction of the personal computer, the Internet, and the MP3, the tools for reproduction were put into the hands of the everyday consumer and the practice became far more difficult to regulate.

3D printers are the ultimate tool for physical production of virtual objects. In a world of 3D printers, having a virtual copy of an object is almost as good as having the real thing, since bits can be cheaply and easily converted to plastic or even metal.  Commentators have already begun to wonder about the legal implications of 3D printing. The ability to print any object has the potential to fundamentally alter the way objects are manufactured and distributed. Still, “the ability to copy and replicate is the ability to infringe on copyright, patent, and trademark” (http://www.publicknowledge.org/it-will-be-awesome-if-they-dont-screw-it-up).

Since 3D printing still occupies a relatively small niche, there has yet to be a significant case involving copyright, patent or trademark infringement arising out of 3D printing. However, as it becomes better, more affordable and more widespread, existing manufacturers will start to take notice.

Issues with Intellectual Property

All three forms of intellectual property are implicated with the ability to copy and replicate physical objects.  For one, copyright protects sculptural works.  However, since functional objects cannot be copyrighted, the protection is limited to those objects whose form is “severable” from its function. Decorative elements of useful objects are protectable under the severability test, but the object itself will not be.

Patent offers protection for useful objects, but protects relatively few objects compared to copyright since it requires the object to be new, useful, and non-obvious. Furthermore, patents are not granted automatically on creation, and only last 20 years. Although patent protects fewer objects, the protection is more complete. Unlike copyright, there is no exception for independent creation. Whereas copyright protects against copying, patent protects against all objects that fall within the claims of the patent. This means that simply printing a patented object constitutes infringement.

Trademark also offers a remedy against certain forms of copying.  Trademark law is designed to reassure consumers that a product marked with a manufacturer’s symbol was actually made and backed by that manufacturer. Generally speaking, trademark only applies to an object’s use in commerce so merely printing something with a trademark does not constitute infringement. However, use of a home 3D printer to make knockoffs for sale would implicate trademark law.

A Problem of Enforcement

As with music piracy, rights holders won’t be able to effectively police their rights against end users of 3D printing. When MP3s and the Internet transformed the way music was distributed, rights holders had to enforce their copyrights against service providers using theories of secondary liability. Although they successfully shut down Napster, Aimster, Grokster and other services that facilitated piracy by invoking theories of contributory and vicarious liability, piracy remains difficult to effectively police thanks to peer-to-peer communication networks like Bittorrent.  By the same token, policing the websites and services that allow for the exchange of virtual 3D objects, while necessary, can only go so far.

If the experience of the music industry has taught us anything it is that rather than fight innovation to preserve old business models (see http://museumofintellectualproperty.eejlaw.com/exhibits/rio.html), existing manufacturers will be best served by cooperating with innovators to ensure their IP rights are respected.

Further reading on 3D printing and its legal implications:

http://www.economist.com/node/18114221

http://www.economist.com/node/14299512

http://arstechnica.com/tech-policy/2011/04/the-next-napster-copyright-questions-as-3d-printing-comes-of-age

http://www.publicknowledge.org/it-will-be-awesome-if-they-dont-screw-it-up

 

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2 thoughts on “Decentralizing the Means of (Re)production

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