The DIY Is Cast: Intellectual Property and 3D Printing in the Age of Self-Driven Production

Front-Page Technology
The DIY Is Cast

The world of hookah manufacturing is the last place you would expect to stay informed on 3D printing litigation, but the outcome of last January’s case forInhale Inc. vs. Starbuzz Tobacco Inc. reminds us that sometimes the boundaries of the law can be as hazy as smoke.

In an appeal made in late 2013, Inhale claimed that Starbuzz had sold hookah devices that were identical in shape to the ones Inhale had been selling since 2008, which had subsequently been registered with the United States Copyright Office in 2011. At the time of publication and registration, the container included distinct skull-and-crossbones images on the outside. Less than a month after registration, Inhale sued Starbuzz for copyright infringement, on the grounds that Starbuzz sold hookah devices that were identical in shape to Inhale’s. The alleged infringing did not cover the skull-and-crossbones imagery of Inhale’s device, as it is absent from Starbuzz’s. In the subsequent rulings, the court found that the shape of the hookah was not copyrightable, and ruled in favor of Starbuzz regardless of whether Starbuzz copied Inhale or not.

The unusual case of Inhale Inc. vs. Starbuzz Tobacco Inc. boils down to the Court making a definitive stance on the notion of conceptual separability that is implicit in the American copyright law. In order to seek a copyright for one’s intellectual property, it must be proven to be both original and creative – that is, it is a work that is independently created by the author as opposed to being based off of an existing work. This is generally easy to apply to creative works such as films, literature, and music; copyrighting these is straightforward as these are primarily valued for their artistic and creative content. On the other hand, the extent of a copyright’s efficacy for work that is functional in nature is muddled at best, as these are not by themselves covered by the copyright.* Consider the case of a Louis Vuitton handbag: the handbag, on its own, is functional and therefore not copyrightable, whereas the visibly distinct Louis Vuitton logo and pattern on the bag is an artistic element and therefore is. If enough of these elements are present such that they distinguish the appearance of the handbag sufficiently, then anybody seeking to copy this particular version is subject to copyright infringement.

* The functional aspects of a product, termed “useful articles”, may qualify for protection under patent law, but patents are more costly than copyrights and last a shorter amount of time.

It is this varying degree of separation between art and function that underlies the tenet of conceptual separability, and the grounds upon which the verdict in favor of Starbuzz Tobacco Inc. was made. Simply put, the Court found that it could not separate the hookah’s shape from its utilitarian function, which is to store the hookah’s contents. There would only have been a case of copyright infringement had Starbuzz lifted off the distinct imagery of Inhale’s hookah.

So what does this mean for the future of 3D printing? Already we are seeing discussions and concerns over the proliferation of the technology grow in tandem to its innovations. The advent of the 3D printed gun has influenced recent discussions over firearms control, and the possibility of having one’s own personal prescription drug distribution machine raises questions over the viability of existing substance-control laws to meet concerns over DIY recreational drug usage. As a whole, the ability to create one’s own products is upending preconceived notions of how intellectual property laws can be enforced.

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Paul Banwatt serves as the general counsel for Matter and Form Inc., which recently launched the first affordable high-resolution 3D scanner this past February. He is also a co-founder for Law in the Making, a blog that touches on legal issues surrounding the 3D printing movement and serves as a platform for discussion on how existing intellectual property (IP) litigation can adapt around these issues.

According to Paul, there is a prevailing notion that users of 3D scanners and printers are immediately infringing on someone’s intellectual property when they create 3D copies. This is blame that he feels is misplaced; to him, using a 3D printer is no more illegal than using a computer – the fact that the computer can be used to commit a number of illegal things does not necessarily mean that the computer itself is inherently an illegal concept or device. “Lawyers often think about the legal issues, and most of the time that involves looking at all the potential problems that could arise,” Paul explained. “Sometimes we miss out on the value creation aspect of the IP law. That should be getting more attention than it has.”

For the most part, media coverage on the 3D printing movement has been twofold, the views of which fall dependent on the nature of the industry providing its perspective. For many in the science and technology sectors, 3D printing represents the potential to circumvent previously unsolvable problems and to dream of better approaches for existing processes and solutions. On the flip side, it is these very factors that fuel growing concerns among businesses, lawyers, and politicians.

Their fears are not entirely unfounded: Gartner Inc., the world’s leading information technology research and advisory group, recently released a reportestimating that 3D printing will result in the loss of at least $100 billion per year in IP globally by 2018. Taking into account the differing factors that encourage innovation such as shorter production cycles, crowdsourcing, and the startup culture booming on a global scale, existing businesses will find it difficult to fully monetize their inventions; subsequently, licensees will be faced with unlikelihood of maximizing the benefit of their licenses. While nothing new, the reach of IP theft will also be more so expansive; with reduced product development and supply chain costs, IP thieves are enabled to sell counterfeit goods at a discount, with customers at risk of purchasing poor and potentially dangerous products.

To be fair, IP theft as a result of widespread access to technology is nothing new – the Internet and the ongoing discussions on the nature of net neutrality and digital piracy is a testament to this. Similarly, counterfeit manufacturing has existed long before the 3D printer has. The key difference between these and the issues surrounding 3D printing is that the concerns that have come up about 3D printing stem from a previously unfounded combination of the causes plaguing the other two. That is, 3D scanners and printers allow the end user a low-cost and easily accessible method to create tangible goods that would have, until now, only been possible to reproduce given the right machine capital and blueprints. In the age of 3D Printing and open-sourced online distribution, both are far easier to come by.

As it stands, the scramble to create new literature and policies to alleviate these issues has been slow: the Senate’s efforts this past December to amend the Undetectable Firearms Act, which bans the manufacture and distribution of firearms with either less than the minimum amount of metal that can be detected at security screenings or do not generate an image that accurately depicts the shape of the component, resulted in a 10-year extension of the bill but without the proposed tighter restrictions that would account for detachable 3D printable parts. Proponents of these restrictions argue that such guns have a metal part that can be removed, and thus exploit a loophole within the preexisting bill. Similar reform is required for product liability regarding 3D printed products, but as in the case of Inhale Inc. vs. Starbuzz Tobacco Inc. making definitive judgments on the matter means blurring lines in order to impose a measure of liability.

It is necessary for governments to adapt existing policies to match the issues new technology brings forth, and it is only a matter of time before they do. As history has shown, legislation for emerging technologies is almost always reactionary – it is often difficult to implement preventive measures ahead of the technology’s widespread adoption. Bearing this in mind, there are laws that already exist that are applicable to the needs of 3D printing. The protection of virtual intellectual property on the Internet as defined by the United States’ Digital Millennium Copyright Act (DMCA) can be extended to the distribution of digital blueprints. Similar laws are in effect in other countries as well, in accordance to policies defined by the World Intellectual Property Organization (WIPO), an agency of the United Nation focused on protecting intellectual property rights on a global scale. And although DMCA takedown notices can be abused as much as used appropriately, the fact is that it does exist and can be used to add structure to the issue at hand.

“People have to start thinking in a slightly different approach for 3D intellectual property and ownership,” Paul responded, pointing to the busts of Yoda that were used in the early days of 3D printing as an example of potential IP conflict. According to Paul, a review of early 3D printers showed that Yoda’s head was used to exhibit the viability of 3D printing; besides the level of detail required to capture the character’s likeness, Yoda’s ears and facial features can be a challenge to create due to the difficulty of maintaining their structural integrity during and after the manufacturing process. Even today, the Yoda bust can be downloaded from Thingiverse for anyone to utilize.

“Back then, that kind of activity wasn’t necessarily recognized as a violation of any IP laws, but I wouldn’t be surprised if it hasn’t gone unnoticed,” Paul stated. Indeed, 3D printing Yoda’s head can, under legal bounds, constitute as infringing upon Lucasfilm’s IP – unlike the previously mentioned case of Inhale Inc. vs. Starbuzz Tobacco Inc., regardless of Yoda’s head being used in a functional manner, the fact remains that there is enough recognizable aesthetic features on the bust for it to be subject to copyright laws. And while Disney and Lucasfilm may not have taken action yet, it hasn’t stopped other companies from doing so: in 2013, Moulinsart, the owners of the rights to the Tintin cartoon, served Thingiverse a Digital Millennium Copyright Act notice stipulating the removal ofTintin-related printing designs.

While Moulinsart was well within their rights to pursue legal action, many believe that there were better ways to handle the situation. “Considering the proliferation of the technology, I believe some education needs to go towards how IP laws can be upheld without stepping on the toes of either the rights holders or the makers,” Paul said on the matter. “I believe that education and outreach has to come from the rights holders – no one else bears the responsibility for the efficacy and maintenance of their IP. I can imagine that a productive and positive approach would be to have a stance that is equivalent to saying, ‘Hey, you can’t go around using our IP haphazardly—here’s a legal way to do it’.”

The communication of the law and its enforcement is never going to be one-sided. This is especially true in the context of 3D printing, where the methods for regulating digital blueprints on the Internet are not going to be the same as the regulation of physical 3D printed products. A parallel can be drawn to the evolution of content distribution for the film and music industries. In the heyday of the Internet, peer-to-peer file sharing services such as Napster and Kazaa created the possibilities for the unregulated distribution of MP3 files, while the later BitTorrent protocol allowed for movies to be shared due to its ability to distribute large amounts of data. Around the same time, Netflix started out doing online pay-per-rentals, which eventually evolved into the first iteration of their monthly subscription model. These new businesses developed in response to opportunities created by emerging technologies, which in turn threatened preexisting models for controlling the monetary and physical flow of goods in the market. For studios and businesses, finding ways to adapt and monetize on these models required shifting perspectives, and the result was wider adoption of digital distribution models spearheaded by the iTunes Store in 2003. Similarly, the promise of streaming content as popularized by Youtube in 2005 led to streaming pay-per-rental, flat-fee subscription, and free ad-supported models that now draw the same film and music studios into partnerships with Hulu, Netflix, and Vevo.

The fear of IP theft as a result of technology is a simply a matter where history repeats itself, and even if said technology has its unique share of legal implications as 3D printing does, creating solutions requires a bipartisan effort between government and businesses to adapt legislations and leverage the potential of technology to create value where it did not previously exist. IP theft does happen and it can a factor in a company’s net loss, but there are ways to create legal and fair compensation for people who do have these intellectual properties, and one way to obtain these is by utilizing existing distribution channels.

For a company like Lucasfilm that values Yoda as an IP, having some manner of legal access for DIY makers to create Yoda’s head is an opportunity to create a new and viable marketplace built around manufacturing processes inherent to 3D printing technology and the people who support it. Leveraging the accessibility of digital content distribution models in the context of 3D printable designs opens up a new way to monetize on IP by creating a larger licensee base. Encouraging and working with digital design artists to drive licensed content creation and working with Thingiverse to curate official content could grow into a long-term manufacturing relationship that directly connects a business who want to leverage their intellectual property with their consumer’s immediate wants and needs. And while there are certainly other challenges to consider when it comes IP maintenance with this plan, working with creators and distributors as opposed to limiting them and, subsequently, spending resources and public goodwill on protracted legal disputes is a more so constructive step moving forward. “Just think about the fact that customers will pay for immediate ease of access,” Paul posited. “There’s no doubt that customers are willing to buy because it’s legally available and simple. If I wanted to print Yoda’s head and Lucasfilm makes it simple for me to do so, then I would be incentivized to do just that.”

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“You know, there was this one guy more than few years ago who predicted that computers would signal the end of paper,” Paul recounted. “And he was right on one level – we’re seeing print media transition to digital formats and distributed through mediums such as the Internet and mobile devices because of the ease-of-access to their readers. At the same time though, computers have also driven up the use of paper more than ever in ways we didn’t expect. I guess what I’m trying to say with this is that it’s dawned on me that people are using technology in ways that people wouldn’t expect as well.”

Paul pointed out a recent trip he had made to the Canadian Space Commerce Association Annual Conference (CSCA2014) on behalf of Matter and Form as a case for this. “I was there to look at potential intersections between aerospace and 3D scanning and printing technology,” he explained. “And a lot of the product showcases were really interesting. There was one on display that used 3D scanners to measure the ice build-up on space shuttles after liftoff. It scanned and reconstructed ice secretion to design better heat protection methods for space vehicles. This is just one example of using 3D printed products to gauge environmental conditions, and there are certainly plenty more.”

The future of 3D printing in space exploration, at the moment, seems endless. Indeed, NASA’s Space Technology Mission Directorate is heavily invested inprototyping using 3D printing, in the hopes that such techniques can be used to create customized tools and parts on the fly. Tests on these tools already show promise: NASA’s Goddard Space Flight Center in Greenbelt, Maryland, recently put a 3D printed battery case through sounding rocket mission test, while NASA’s Marshall Space Flight Center in Huntsville, Alabama created components for the J-2X and RS-25 rocket engines, which are used for the organization’s Space Launch System (SLS). These efforts are not strictly internal, either: NASA has partnered up with Made in Space to utilize the start-up’s 3-D Print, a 3D printer capable of printing in zero gravity. As of now, 3-D Print is capable of manufacturing about 30 percent of the spare parts currently on the Internal Space Station (ISS), and will be flown into space in 2014.

NASA is only one of many organizations actively scoping the possibilities; it, along with the US Air Force and the National Institute of Standards and Technology (NIST) among others, is part of the America Makes, a profit-nonprofit partnership to promote the possibilities of 3D printing as a mainstream manufacturing process. To this end, America Makes employs programs such as funding, strategic consulting services, and incubator activation, citing the need to grow a workforce capable of adapting to 3D printing processes as important as the advancement of the technology itself.

The potential of 3D printing is more so widely recognized than it has been in the past. From Barack Obama’s acknowledgement in his 2013 State of the Union Address to his promise of creating new high-tech manufacturing hubs to bolster job creation in 2014, from the excitement surrounding the Micro, a low-cost 3D printer priced less than an iPhone, to the possibilities of 3D printing human organs and food, growing public awareness of the technology come with unrealized opportunities and questions in tow.

It can be argued that we have no idea what the future may hold other than promises – like any tool, the moral implications inherent in technology such as 3D printing is in the domain of the user. To that end, the innovation of 3D printing technology should not be judged on the basis of its potential for IP theft but rather its potential for IP value creation. After all, the invention of the personal computer and the Internet has subsequently provided new ways for us to interact and innovate that would otherwise be inaccessible. The fact of the matter is that even though 3D printing exists, it is still in the process of maturing as an innovative tool. Somewhere down the line society will have the ability to self-manufacture products quickly and cheaply, on a consumer and an industrial level; rapid prototyping and fabrication will become the norm, and just-in-time on-site production will reduce in-process inventory throughout the entire supply chain as well reduce carrying costs. When that time comes, there will be no doubt that IP litigation will have the hindsight of history to create context for the proper dispensation of the law.

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