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Regulating a 3D Printing Revolution

3D printing is revolutionizing manufacturing practices with wide-ranging uses from medical devices to automobile parts. But the ready availability of 3D printers, combined with the ease with which computer-aided designs (CADs) can be shared, makes 3D printing particularly vulnerable to easy reproduction and distribution without prior permission of designers.

In a recent article, Professor Peter Menell of the University of California, Berkeley and Professor Ryan Vacca of the University of Akron School of Law argue that regulating 3D technology successfully will depend on a combination of the industry’s strategic approach to enforcement and the willingness of courts to amend existing copyright laws to fit the particularities of 3D printing.

3D printingMenell and Vacca argue that copyright protection under U.S. law extends to CAD files and other digital versions of sculptural works, with liability attaching to those who reproduce exact, or substantially exact, copies of the copyright protected work. Derivative works—works derived from existing copyrighted works—are also protected by copyright law. Currently, copyright law in the United States protects original works of authorship, protecting artistic endeavor—such as songs, movies, and novels. Distribution and public display of copyrighted work without the prior permission of designers are also prohibited under copyright law.

Copyright protection does not, however, extend to functional aspects of a work, and there must be creative effort involved. As a result, Menell and Vacca say that a CAD file consisting of an exact digital copy of a pre-existing sculptural work—such as a prosthetic limb—is unlikely to benefit from copyright protection. In seeking to enforce copyright in the area of 3D printing, Menell and Vacca argue that copyright should be claimed on reproductions of exact or very similar copies of the copyrighted work made without permission, as well as derivative works and adaptations of copyrighted work.

Copyright holders seeking to protect against infringement in the 3D printing context may potentially rely on these areas of copyright law.

Drawing an analogy between online music sharing and 3D printing, Menell and Vacca emphasize the ease with which CAD files containing 3D printing designs can be copied and distributed and the enforcement challenges that this presents. In examining the enforcement of copyright law for 3D printed works, Menell and Vacca argue that an important consideration for business is to determine precisely who to target for the enforcement of copyright protections.

Using a pyramid to illustrate the different layers of potential online infringement, Menell and Vacca place core Internet functionality providers at the apex, with hardware manufacturers in the next layer, followed by Internet service providers, and end users at the base. Different policy considerations apply to deciding when to target each layer of the pyramid.

Menell and Vacca argue that targeting core Internet functionality providers would be effective but overinclusive, impacting the many benefits flowing to society from the non-infringing aspects of the Internet. If enforcement measures are directed towards the Internet backbone providers, they could have the effect of chilling society’s use of the Internet with little gain in protecting copyrighted work.

On the other end of the pyramid, enforcing rights against end users requires the ability to detect where the infringement is occurring. Even when this is possible, identifying website owners often requires a court order. As Menell and Vacca note, the ease with which copyright infringers can create new websites makes shutting them down one-by-one an ineffective task. Alongside these practical difficulties, Menell and Vacca point out that enforcing rights against non-commercial infringers is rarely economically justified, particularly where the infringer does not have sufficient means to meet a judgment given in favor of the rights holder.

Entities in the middle layers of Menell and Vacca’s pyramid—for example, hardware manufacturers, 3D printing shops, and CAD file-sharing websites—are more likely targets for enforcement due to the wider scale of potential infringement that they facilitate. Commercial enterprises, which provide the means by which infringement takes place—such as the manufacturer of a videocassette recorder later used to make copies of copyrighted material— are also potentially better marks for enforcing judgments.

Menell and Vacca point out that copyright law protects commercial enterprises from liability in a number of ways. They explain that when it comes to indirect liability—for example, when a manufacturer produces a 3D printer that is later used to infringe copyrighted work—the U.S. Supreme Court has determined that such liability will not apply if equipment can be used for a substantial purpose which does not infringe copyright. Menell and Vacca argue that 3D printers have many uses that do not infringe copyright, and manufacturers that promote those uses would likely not be held indirectly liable for downstream infringement by third parties.

Menell and Vacca also discuss statutory limitations on liability enacted by Congress in the early days of the Internet, providing another source of comfort for CAD file-sharing websites. According to Menell and Vacca, the safe harbor provisions of the Digital Millennium Copyright Act, which protects websites like YouTube that host user-generated content, could offer protection from liability to CAD file-sharing websites, at least in the U.S.

To benefit from the safe harbor, CAD file-sharing websites need to be prepared to respond to takedown notices and create policies for dealing with users who repeatedly upload copyrighted materials. Sounding a word of warning, Menell and Vacca say that CAD file-sharing websites would not benefit from this safe harbor if they induce copyright infringement. Menell and Vacca recommend avoiding any language that could be construed as inducing users to upload copyrighted content.

According to Menell and Vacca, the regulatory regime that will ultimately govern the emerging 3D printing industry will depend on the public policy considerations and business strategies chosen by manufacturers and designers. For the law, the challenge will be keeping up with the pace of innovation and technological advancement in this area of disruptive technology.

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