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Michael Weinberg is a vice president at Public Knowledge, a nonprofit digital advocacy group in Washington, D.C. He oversees PK Thinks, Public Knowledge’s in-house think tank, and is involved in a wide range of issues focusing primarily on copyright, issues before the FCC, and emerging technologies such as 3D printing and open source hardware.
Like the horse and the Internet before it,1 3D printing has the potential to raise questions about a number of areas of the law. Some of those questions will be novel. Others will merely reframe existing challenges. And still others will add urgency to long known but unresolved corners of the law. It is likely that 3D printing’s most immediate impact will be in intellectual property law. However, it is equally likely that the longer-term impact will expand well beyond intellectual property.
One of the first major impacts of 3D printing on the law will be on public perception of intellectual property law. More specifically, it will help to remind the public that copyright is, in fact, a limited doctrine.
It is something of a fluke that copyright law has become so intertwined with our online lives. For most people, the first things that were easy to create and distribute online—articles, pictures, music, movies—also happened to be material protected by copyright. The various legal and policy battles connected to the distribution of these works in the early days of the Internet served as a mass introduction to intellectual property law. People learned that almost everything they saw on their screen was protected by copyright. And, as those screens grew in importance to them, many began to assume that everything in the real world was protected by copyright as well.
3D printing gives people an opportunity to reexamine that incorrect assumption. In the digital world, it is prudent for nonexperts to assume that just about everything they come upon is protected by copyright. In the physical world, that assumption should probably be flipped. For every painting or magazine you see on a given day, there are countless other objects that are simply unprotected by patent, trademark, or any other type of intellectual property right.
When considering using works online without permission, many lawyers and nonlawyers start with the question: “Is this use fair use?” When considering using physical things, that question moves back at least one step to: “Is this object protected by any intellectual property rights?”
Mashups are one of the great cultural art forms of our time. Easy and accessible digital tools have allowed anyone to remix videos, music, and photographs into their own original works. Mashup culture has produced fantastic music,2 critical video,3 and delightful cultural4 artifacts5 of all kinds.
However, mashups are ultimately limited by the nature of their source material. Many of the types of things that mashups draw from—videos, music, photos—are also the types of things that are protected by copyright. This means that mashup creators need to take copyright into account when creating their works. Sometimes, because of equitable defenses such as fair use, the creator does not need permission from the person who owns rights to the source material. Other times, mostly because the work falls outside the scope of fair use, the creator does need permission. Regardless of the ultimate fair use determination, the necessity of making such a determination (or coming to terms with infringement) inevitably prevents some mashups from being made and others from being seen by a wide audience.
By connecting the digital and physical worlds, 3D printing greatly expands the scope of inputs for a mashup. This means that we will likely see more physical mashups, and that many of those mashups will be unencumbered by copyright concerns.
One of the best examples of this so far is the Free Universal Construction Kit.6 The kit remixes 10 different construction toys into adaptors that make them interoperable. These toys are functional objects, so they are generally considered outside the scope of copyright. While some of the toys were patented when they first came to market, many of those patents have long expired. This means that most of the toys are no longer protected and that you can remix them to your heart’s content.
The Free Universal Construction Kit is just the beginning when it comes to remixing things. Easy-to-use tools like meshmixer7 allow people to remix things just as easily as they remix songs or videos. While some of these physical things will inevitably be protected by copyright or patent, many will not.
In addition to reframing the place of copyright in the public’s consciousness, 3D printing may also increase the urgency of latent issues in current copyright law.
One likely issue is the doctrine of severability. On paper, severability is a fairly straightforward way to deal with the fact that some objects incorporate both artistic and functional elements. Not wanting to protect functional elements with copyright or artistic elements with patent, the law allows us to sever the two elements and protect them independently under the appropriate doctrine.
This process reflects a conscious decision by Congress. In a report accompanying the Copyright Act, Congress explained that it did not intend copyright to protect industrial products that happen to have “aesthetically satisfying and valuable” shapes.8 Instead, only “physically or conceptually” severable elements can be protected by copyright.9 For example, if a chair has a carving on the back, the carving can be protected but the functional chair design itself remains outside the scope of copyright.10 This is because the carving can stand alone as a viable artistic creation even without the rest of the chair.
When these elements can be physically separated (as in the case of a chair with an artistic backing), the severability doctrine works reasonably well. However, when physical separation is not an option, courts are left with seeking out a way to conceptually separate physically intertwined elements. Not surprisingly, this is not easy. A number of courts have struggled with conceptual severability and some circuits have created their own tests (or set of tests), but it is safe to say that there is no universally accepted test for conceptual severability.11
As more individuals use 3D printing to reproduce objects—or parts of objects—that may or may not be protected by copyright without permission and more rights holders (or those who believe that they are rights holders) seek to restrain such behavior, issues of severability will become increasingly important. This will highlight current deficiencies in the severability doctrine, hopefully pushing it toward some sort of resolution.
Another copyright doctrine likely to be tested is merger. Because copyright does not protect ideas, but rather specific expressions of ideas, the role of merger is to deal with situations where there are an extremely limited number of ways to express a given idea.12 This doctrine becomes important when considering digital files that represent physical things.
Physical objects can live in a digital form. For 3D printing, this digital form is often that of an .stl file. These files can be thought of as the object equivalent of a .pdf file—they are more or less universally printable by 3D printers and allow objects to be transferred digitally around the world.
When .stl files represent a copyrightable object, merger is not necessarily important. In some cases it may matter if someone is infringing the file or the object itself, but in most cases it will not matter what is being infringed as long as it is clear that there is an infringement (the distinction does become relevant when one person owns the copyright on the object and another owns the copyright on the file, but let’s set that aside for now).
However, when .stl files represent noncopyrightable objects, the question is less straightforward. There are merger questions surrounding the copyrightability of a file that is essentially a collection of measurements of a physical object. To the extent some copyright attaches to the .stl file,13 there are further questions about what exactly that means. What kind of control does owning a copyright in an .stl file give the rights holder over the object itself? Presumably the existence of digital files for physical objects does not somehow expand the scope of copyright to include all physical things.
Widespread access to 3D printing also raises questions in at least two additional areas of policy and law. The first is protection for sites that host 3D printing files, or even sites that offer some sort of print-on-demand service. In their way, both of these types of sites could be (although do not necessarily have to be) thought of as the 3D printing equivalent of YouTube.
To the extent that they are hosting files protected by copyright for objects protected by copyright, these sites will generally be protected from liability by the existing Digital Millennium Copyright Act (DMCA). However, the DMCA will not protect these sites from accusations of infringement of patent and trademark rights. While this type of liability exposure has existed well before the current 3D printing boom, increasing rights holder demands for control over noncopyrighted objects in the context of 3D printing will make this issue more prominent. A full consideration of both the costs and benefits of creating DMCA-like protection for hosts of patented and trademarked goods exceeds the scope of this article. Fortunately, Professors Deven R. Desai and Gerard N. Magliocca’s recent article examining legal questions raised by widespread access to 3D printing has the space to examine some of them.14
Finally, unlike software and the Internet, discussions about 3D printing are ultimately discussions about things. And, unlike software and the Internet, it is easy for things to injure people and raise all sorts of interesting product liability questions. Some of these questions can be fun to raise but hard to answer: Assuming a 3D printed object injured someone, who is responsible? The person who designed the original file? The person who modified it? The person who distributed it? The person who downloaded it? The 3D printer designer? The 3D printer builder? The person who used the 3D printer to print the object? All, none, or some of the above?
More generally, it raises real questions about the role of enterprise liability in a world of truly distributed design and manufacturing. As with a serious consideration of an expansion of the DMCA, truly examining these questions is well beyond the scope of this article. But happily, as with the serious examination of an expansion of the DMCA, these issues are already being written about elsewhere. Professor Nora Freeman Engstrom recently released an essay that focuses on some of the obstacles that distributed 3D printing presents to product liability.15
Today, it is hard to anticipate what widespread adoption of 3D printing might look like. It could mean a printer on every desk, or a printer at a corner store, or a printer in a warehouse connected to the Internet. Regardless of what form it takes, 3D printing will make it much easier for people to make, modify, and distribute physical things. This ability creates a great deal of opportunity. But, of course, it also raises a number of legal questions. And that is where you come in.
1. See Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207.
2. See, e.g., DJ Danger Mouse, The Grey Album (2004), https://archive.org/details/DjDangerMouse-TheGreyAlbum.
3. See, e.g., Jonathan McIntosh, Donald Duck Meets Glenn Beck in Right Wing Radio Duck (Oct. 2, 2010), www.rebelliouspixels.com/2010/right-wing-radio-duck-donald-discovers-glenn-beck.
4. See, for example, the work of Elisa Kreisinger at www. popculturepirate.com.
8. See H.R. Rep. No. 94-1476, at 55 (1976).
11. See Galiano v. Harrah’s Operating Co., 416 F.3d 411 (5th Cir. 2005); Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913 (7th Cir. 2004); Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142 (2d Cir. 1987); Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411 (2d Cir. 1985); Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980).
12. For example, there are many ways to express a story about a boy and a girl falling in love, so each version of that story will have strong copyright protection (but no author will be able to stop someone else from writing another story about a boy and a girl falling in love). Alternatively, if there are a very limited number of ways to express an idea, then each expression will have very little copyright protection—or no protection at all. If the idea that a baffle should be attached to a rectangular surface exactly 15 mm from the edge can only be expressed one way (or an extremely limited number of ways), that idea and expression of that idea are said to have “merged.” The result is that the one and only way of expressing the idea is not protected by copyright. See, e.g., Baker v. Selden, 101 U.S. 99 (1880); Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199 (3d Cir. 2005); Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25 (1st Cir. 2001); Franklin Mint Corp. v. Nat’l Wildlife Art Exch., Inc., 575 F.2d 62 (3d Cir. 1978); Crume v. Pac. Mut. Life Ins. Co., 140 F.2d 182 (7th Cir. 1944).
13. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008), found that a 3D scan of an object was not sufficiently original to create a new copyright in the scan file, a finding that is consistent with Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998), modified, 36 F. Supp. 2d 191 (S.D.N.Y. 1999), which essentially came to the same conclusion with regard to 2D scans of public domain artwork.
14. Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things, 102 Geo. L.J. (forthcoming 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2338067.
15. Nora Freeman Engstrom, 3-D Printing and Product Liability: Identifying the Obstacles, 162 U. Pa. L. Rev. Online 35 (2013), www.pennlawreview.com/online/162-U-Pa-L-Rev-Online-35.pdf.