Last week, I attended MSU’s Fifth Annual Conference on Innovation and Communications Law, where I saw a wonderful presentation by Joshua Pearce, an engineering and material sciences professor from Michigan Tech, on “distributed open-source digital manufacturing” (a.k.a. open-source 3D printing). The hardware Joshua presented is called RepRap:
RepRap takes the form of a free desktop 3D printer capable of printing plastic objects. Since many parts of RepRap are made from plastic and RepRap prints those parts, RepRap self-replicates by making a kit of itself – a kit that anyone can assemble given time and materials. It also means that – if you’ve got a RepRap – you can print lots of useful stuff, and you can print another RepRap for a friend…
I love conferences that bring lawyers together with technologists, because they really help the lawyers among us understand what’s at stake for developers of new technologies that intersect—maybe “collide” is the better word—with intellectual property law. Joshua’s presentation ended with a plea to the lawyers in the room to prevent IP law from inhibiting the development and proliferation of open 3D printing technologies, which promise to revolutionize—maybe “disrupt” is the better word—our entrenched, centralized, and outsourced manufacturing model.
I don’t know what the patent landscape looks like for the machines and methods underlying 3D printing, but from the copyright perspective, distributors of 3D printers are almost certainly insulated from secondary liability for infringement by Sony v. Universal, a seminal Supreme Court case from 1983 holding that the manufacturers and distributors of reprographic technologies that can be used to infringe copyrights are exempt from liability for the infringements of end users if the technologies they distribute are “capable of substantial non-infringing uses.” The Supreme Court later clarified in MGM v. Grokster that Sony’s safe harbor will not protect distributors who operate with the proven intent to induce end users to infringe, even if the technologies at issue have substantial non-infringing uses. What Sony means for distributors of 3D printers is that they will not be liable for the copyright infringements of end users as long as they don’t encourage users to print copies of copyrighted works, including, for example, sculptures, toys, or useful articles of industrial design that incorporate copyrightable expressive elements. The technology itself is therefore safe from copyright law and from copyright injunctions prohibiting distribution.
The trickier question with 3D printers involves liability for direct infringement by end users. No one doubts that 3D printing will proliferate unauthorized copying of copyrighted works. The controversial question is what the law should do about that proliferation. The migration of 3D printing technology from the lab to the home is underway right now, and it will likely accelerate quickly given that RepRap is designed to be both low-cost and self-replicating. By happenstance, that migration coincides with the initiation of a comprehensive legislative review of U.S. copyright law, making this an opportune moment for policymakers to revisit the legal status of copying for personal use. Under our current system, copying for personal use arguably falls under the rubric of fair use, but that’s far from a foregone conclusion, even with respect to established technologies. The issue has been further complicated over the years by an increasingly expansive interpretation of what counts as a commercial (and therefore market-harming) use of a copyrighted work. Under that expansive interpretation, every unauthorized copy—even a copy made only for personal use—is viewed as commercial in nature because it theoretically represents a lost sale for the copyright owner. Restoring the eroded definitional boundary between copying for personal use and copying for commercial gain would be a step in the right direction for copyright reformers. For a lucid and still-very-timely consideration of how the law of copyrights should treat personal copying, see Jessica Litman’s article “Lawful Personal Use” from the Texas Law Review (2007).