Intellectual Property Rights and 3D Printing: A Fight Tech Can Win

Fights over intellectual property rights have become so much a part of the tech scene that it sometimes seems the industry employs as many patent and copyright lawyers as it does engineers. And if the fights over software patents and music, video, and book copyrights weren’t enough new  technologies allowing anyone to become a micro-manufacturer could become the next front in this running battle.

3D printers costing as little as $1,000 let you turn a computer-generated design into a plastic object almost as easily as a printer turns a Word file into printed pages. 3D scanners can turn physical objects into printable designs. Much more expensive commercial machines can print in a large variety of materials, including aluminum, titanium, stainless steel, glass, and ceramics. Low-cost computer-driven milling machines and laser cutters can do jobs that printers can’t handle. And if you don’t want to do the printing yourself, companies such as Shapeways are becoming the Kinko’s of custom manufacturing; send them a file and they’ll ship you a part.

Some tech-optimists see 3D printing as a solution to many of the world’s problems.  In a posting announcing that it would be distributing plans for printable objects it calls “physibles,” The Pirate Bay announced:

“The benefit to society is huge. No more shipping huge amount of products around the world. No more shipping the broken products back. No more child labour. We’ll be able to print food for hungry people. We’ll be able to share not only a recipe, but the full meal. We’ll be able to actually copy that floppy, if we needed one.”

This, of course, is cheerful nonsense.  Printing food, for example, would require an edible feedstock, meaning there is no net gain for anyone.

But the technology does make it easy to make copies of a large variety of objects, from toys to replacement parts for your bicycle.  But is it legal? After all, the availability of Xerox machines made it possible to copy books and software lets you copy DVDs, both activities that constitute copyright infringement.

It may come as surprise, but in general, physical objects enjoy little or no intellectual property protection. With some specific exceptions, such as sculptural works of art and buildings, physical objects cannot be copyrighted.

Of course, there are other forms of protection. Trademarks, for example. You could copy a Nike sneaker—the technology doesn’t actually exist to do that yet, but it will—but putting a swoosh on it would violate Nike’s trademark. There’s a fuzzier part of trademark called trade dress that can protect the general appearance of an item, but to win it, the product must be very well-known and immediately identifiable, like the classic Coke bottle. Finally, there’s the possibility that your copy will infringe on someone’s patent. Even an object you design from scratch could inadvertently violate a patent though most of the time, replicating part of a patented device does not infringe. (For more detail on the fine points of the law, see the wonderfully titled Public Knowledge white paper “It Will Be Awesome If They Don’t Screw It Up” by Michael Weinberg.

The danger is that industrial incumbents will fight to strangle this baby in the crib. For many industries, the selling of replacement parts is a lucrative business. Until 3D printing  came along, though, it was simply too difficult and expensive for anyone to bother making competitive parts. One exception was the auto industry, where the huge market for replacement body parts made it worthwhile for third-party manufacturers to take on the huge cost of tooling to make copies. The auto industry has tried and failed to shut down this “crash parts” business for decades, though it recently has had some success using design patents.

Some companies have tried to sneak physical products under the protection of the digital Millennium Copyright Act. Lexmark, for example, included a chip in toner cartridges that contained computer code. It argued that replacement cartridges made by Static Control Components infringed its copyright by copying the code. But in an important ruling, the 6th Circuit Court of Appeals found that adding computer code for the purpose of extending copyright to something otherwise not protected was unacceptable.

There’s a good chance, though, that as  3D printing becomes easier, cheaper, and more popular, industry will try to legislate new protections. This time, however, I think the tech world and the spirited “maker” community can prevail. First, as the fight over the Stop Internet Privacy Act showed, it is much, much easier in Washington to block legislation that to pass it. The system is heavily biased in favor of inaction.

Second, this time the community is forearmed. The tech industry paid little attention when the DMCA was being debated in the late 1990s and to the extent it got involved, it deferred to big software companies such as Microsoft and Adobe, which wanted strong protections against piracy. The industry was a bit slow to rally to the anti-SOPA cause, but once it did, it proved effective.

The use of information technology to make physical object is an important new frontier. Let’s hope, in Weinberg’s words, that they don’t screw it up.