Panelists discuss discuss the impact 3D printing is having on intellectual property law.
3D Printing Adds New Dimension to Intellectual Property Law
By Janice Weber
As part of Cardozo School of Law’s Tech Day, February 2, 2015, the Cardozo Law Tech Startup Clinic and the Cardozo Arts & Entertainment Law Journal hosted another in the Cardozo Tech Talk series, “3D Printing and Beyond: Emerging Intellectual Property Issues with 3D Printing and Additive Manufacturing”
Aaron Wright, director of the Cardozo Tech Startup Clinic, and Felix Wu, associate professor of law and faculty director of the Cardozo Data Law Initiative, each moderated a panel of experts and influencers from across the 3D printing industry and legal landscape. They discussed the impact of this technology on intellectual property law, born of decade’s-old case law, and conversely, the law’s impact on an industry born of the digital age, raised in the “sharing economy,” and ready to burst onto a marketplace with technology-based products never seen before. Though new legal models for dealing effectively with online copyright, patent, and trademark issues have been developed over the past few years, in this fast-moving rambunctious arena—where content is king, collaboration is key—IP law and its recipients can sometimes find themselves in unchartered territory.
In its 2013 report, Disruptive Technologies: Advances that will Transform Life, Business, and the Global Economy, McKinsey Global Institute listed 3D printing among the top 12 technologies “that could drive truly massive economic transformations and disruptions in the coming years.” With the uptick of consumer interest and use, the introduction of new materials from wood to metal to DNA, falling costs and the rapid dissemination of technologies, “a new wave of unprecedented innovation and entrepreneurship could be in the offing.” The economic impact will be enormous, the report said, with an estimated “$4 trillion worth of 3D printed products in the marketplace by 2025.
“3D printing is exploding, reaching mass levels of adoption,” said Natalia Krasnodebska, Community Manager at Shapeways, a leading 3D printing service provider, whose business includes a website to accommodate the uploading and downloading of customer files that are ultimately printed on their 3D printers and a marketplace for designers to sell their products. Shapeways serves hundreds of thousands of designers who have uploaded over two million 3D models to date, says Krasnodebska.
Krasnodebska’s job at Shapeways is to make sure that their community of content creators has the freedom to do what they want while working within the rules and obligations of the Digital Millennium Copyright Act. Rather than turning these service providers into the copyright police, the DMCA requires them to communicate impartially between designers, who upload their digital design files, and content owners, who claim copyright protection. The method for filing a complaint is through a “takedown notice” that obligates the site to take down the file, notify the person who uploaded, and wait until that content creator accepts the takedown, or decides to fight it. It is a continuing battle, with the threat of litigation always in the forefront.
“There is a tremendous asymmetry in litigation against small players in the field,” said Martin Galese, general counsel for Formlabs, Inc. a 3D printer manufacturer. From Kickstarters to people who are just putting things online because they’re interesting, “a few well-placed takedown letters, with scary ESQs at the end, can have a shockingly effective impact.” These threats of litigation do not deter people who have money and resources behind them, “but don’t underestimate the damage just filing a basic lawsuit can do to an individual without those resources.”
Panelist Gianni Servodidio, partner at Jenner & Block, walked the audience through an analysis of liability issues from the perspective of the content owner. “Copyright law only comes into the analysis if you are talking about printing items that are themselves subject to copyright protection, whether it’s 3D printing an object, or photocopying an author’s work,” said Servodidio. However self-evident that might seem, with 3D printing comes a more complicated analysis of what comprises the whole of a particular copyrighted object and what protections there are for the content owner for underlying elements that are that object, but in another form, such as .stl files. “If you create a digital file, which is a blueprint of the copyrighted object that lets you render a 3 dimensional object from a 2 dimensional form on a computer, then print it out,” said Servodidio, “that would be within the scope of the exclusive rights of the copyright holder. Why? Because it’s a derivative work.”
Then, there’s the manufacture of the object itself. The full service 3D printing service provider is, in essence, a factory to which the content owner delivers the digital plan, but the printing company provides the materials, fabricates, manufactures and ships it. “In terms of your risk assessment, as a business operator, said Servdidio, “I would think that would be the highest level of risk activity and I think that there would be a very difficult argument to make that this activity is subject to DMCA.”
“I think that 3D printing in the hands of designers is the greatest place we could put it. The ability to customize is what makes 3D printing revolutionary,” she said, referring to the digitally fabricated Kinetic Dress made at Shapeways, and recently purchased by the Museum of Modern Art. “Where else are we going to see material folded up, fit into one end of a 3D printer and out comes a dress on the other?” Krasnodebska and her fellow panelists believe in a strong copyright system, one that encourages diversity. “But it seems like many of the laws that we make go the opposite way,” she said, or are ambiguous enough to never quite answer the question: Can I do this without risk?
Looking at the audience of lawyers and soon to be lawyers, and to her fellow panelists, she thanked them for being at Cardozo where Intellectual Property law is so highly valued. “I’m glad you are all here so we can work together and figure it out, skip the suing and direct rights management, and just move forward with this remarkable technology. I’m here looking for answers just as you are.”
