Like computing, the Internet and social networking, 3D printing is a disruptive innovation destined to challenge the market, technology and legal status quo. And, as with earlier disruptive innovations, legal skirmishes with consumer “early adopters” can point to where use of the new technology collides with the existing framework of intellectual property laws. In 3D printing, early consumer battles are happening within the context of the Digital Millenium Copyright Act (DMCA). Use of the DMCA to police rights in relationship to 3D printing presents challenges to both rights holders and “makers”—3D printing’s early consumer adopters.
3D Printing: IP Law Meets the Makers
3D printing—also known as additive manufacturing—uses digital blueprint files or scans to create or copy objects that would otherwise often be impossible to build. Building the object one layer at a time, 3D printers also permit users to create objects with internal, moveable parts and build replacement parts for existing objects. The technology that allows 3D printing has been around for decades. Still, in the past several years industry innovations have allowed an explosion of commercial and medical uses and, like computers before it, generated an emerging consumer market.
While the 3D printing consumer market is barely out of its infancy, in the last year consumers have seen a significant increase in the availability of affordable 3D printers and printing services. Online forums for sharing designs and computer-ready print files have also increased, as have services that offer consumers turn-key 3D printing services.
Much has been written about how these uses may impact intellectual property rights. Does home reproduction of a component of a patented object constitute patent infringement? (Maybe—but the patent holder may have to go through the expensive and often burdensome process of patent infringement litigation to prove it.) While copyright law should cover objects that are purely design-oriented, what about functional objects—like coffee cups—that include design elements? (Again, maybe—but equally complicated and expensive to prove under copyright’s severability doctrine.) For now, at least, IP rights holders have avoided the costs and pain that can accompany direct litigation against consumers. Instead, early rights enforcement activity against members of the maker community has primarily occurred under the framework offered by the DMCA.
The DMCA and 3D Printing
Under the DMCA, websites that host content—which includes maker community sites for sharing 3D printing files—must act as an impartial messenger between those who upload material and those who potentially hold a copyright in that material. When the rights holder sees content on the website it believes to be infringing, they can send a DMCA takedown notice to the site, objecting to the use and requesting that the file be taken down. Upon receiving this notification, the website takes down the content and notifies the uploader of the claim of infringement—thereby qualifying for a safe harbor from infringement claims provided by the DMCA. The uploader can either accept the takedown or notify the site that there is no infringement and repost the content. The rights holder then either accepts the reposting or sues for copyright infringement.
So far, rights holders have effectively used takedown notices to police alleged consumer 3D printing copyright infringement. Recently, HBO sent a takedown notice to a maker site offering to sell a 3D-printed, smartphone charging dock shaped like the Iron Throne from HBO’s “Game of Thrones” TV series. After unsuccessfully seeking a license from HBO to make an Iron Throne-shaped charging dock (another company already has it), the maker took down a file containing instructions on how to print the dock at home and stopped offering it for sale. Similarly, Games Workshop (GW) issued a takedown notice to free 3D printing file-sharing website Thingsverse after it found designs for figurines based on those included in GW’s Warhammer game. The individual uploading the files did not protest the takedown but, at least in the blogsphere, the maker community did. A similar protest led one maker who hoped to sell plans to print an object based on the Penrose Triangle—a famous optical illusion--to retract a takedown notice sent to Thingsverse after another maker also figured out a print plan to make the object.
The proliferation of consumer 3D printers, printing services and file-sharing is sure to increase the instances where maker content has the potential to infringe proprietary designs. For rights holders, the relative ease and effectiveness of a DMCA takedown notice suggests it will remain the primary vehicle for rights enforcements in the consumer market –at least for the time being.
But increased consumer use of 3D printing means companies using DMCA to protect their copyrights will inevitably have to take on a bigger and more expensive policing effort. As makers’ power coalesces and the industry gains deeper traction into consumer culture, companies—and their lawyers—may wish to take lessons learned in long and hard-fought IP battles surrounding earlier disruptive technologies and, instead, use creative licensing and other strategies to manage 3D printing’s impact on rights-protected content.