3D Printing

Copyright and 3D Printing: Everything Old is New Again

From “Player Piano”[1] rolls to “Betamax”[2] to “Napster,”[3] the American Judiciary has hosted a seemingly endless parade of intellectual property disputes over the years all foretelling the end of copyright law as we know it. Petitioners trod out the latest technology, characterizing it as a facilitator of piracy robbing creators of the return on their hard-won investment and inspired contributions that have long fueled the American Economy. [4]  And the technologists respond by asserting that they should not be saddled with the burden of patrolling others’ misuse of their well-intended tools developed to improve the daily lives of everyday Americans.

Over the years, there have been victories on both sides, but what is clear is that technology continues to evolve and that content creators continue to zealously defend their right to protect and profit from their creation in any medium.  Both are valid objectives and remain just about the only constants in this very dynamic area of law and business.  For decades, “content” and “conduit” have been engaged in a delicate and yet deeply symbiotic dance.  The popularization of 3D Printing technology will once again bring together creative content developers and innovative technologists, and I posit that their struggles will be the norm and not the exception.

As an intellectual property attorney who has represented paradigm-shifting media and technology clients for over two decades, I look forward to the day when history does not repeat itself — when both creators and technologists can work together to further their respective and mutual objectives long before the lawsuits come pouring in.  “The rightsholders will come around, “ one leading 3D Printing executive proclaimed at a recent industry event.  And yet, HBO has already issued a cease-and-desist demand to stop the dissemination of merchandise based on the popular television program, “Game of Thrones.”[5]   Disney, for example, routinely sues for the unauthorized use of Mickey Mouse and zealously defends its carefully crafted image as manifested in arguably the most famous ambassador of all brands[6].  Why would the company draw the line in protecting its intellectual property at 3D Printing?[7]  A search on a popular 3D blueprint network reveals countless “Harry Potter” references that a court will likely conclude at some point goes well beyond “fair use.”  After all, how is file-sharing of CAD files on a mass scale different from sharing MP3 files that were at issue in Napster?  Do we need to witness another Napster litigation or is there an easier way?  What is best for both the user community that these networks serve AND the rightsholders that have laboured to develop this coveted content that is so prized by the 3D Printing user community going forward?

Some rightsholders have determined that the widespread dissemination of their work without compensation is in their best long-term interests, and so they are giving their work away for free as these new 3D networks and businesses evolve.  Earlier this year, Nokia released 3D blueprints of mobile phone cases to download for free, which certainly offers an added incentive to invest in their primary product. Currently there are a range of free downloadable and highly customizable smart phone accessories for 3D printing that offer a nice complement to the marketing efforts of any mobile technology corporation for the foreseeable future. Ford has embraced the future of 3D printing and offers some free printable files on MakerBot’s “Thingiverse,” a site that is maintained by the personal 3D Printing venture in Brooklyn, recently acquired by industry veteran company, Stratasys. Brilliant marketing with clear business objectives, and sometimes just pure altruism, often facilitates a choice to not exercise intellectual property rights.  Indeed, many content creators opt to use “Creative Commons” licenses, which allow the content creator to choose to disseminate their content for free — often in return for attribution.

“We don’t believe in copyright,” one 3D printing startup employee told me at a recent Meetup event organized for 3D Printing enthusiasts. “Just licensing.”  Well, I had to break it to her: you have to own something to license it. There is a lot of misinformation out there concerning the “everything should be free” movement and it seems it is quite fashionable at the moment to espouse the virtues of the public domain. And yes, the public domain is virtuous. Copyright is a limited monopoly that allows works to return to our collective culture to inspire new uses for these works.  But what of the brilliant artist whom I have learned originally released his unique and globally recognized works in printable 3D files on the Internet for free under a Creative Commons license, and didn’t even get the recognition and attribution he bargained for under the terms of that license?  He began to see his works pop up around the world for others to profit, and so he withdrew his works from public view altogether out of pure frustration and disappointment. What about the scores of product designers who see absolutely unprecedented market opportunity at the dawn of the ‘Personal Maker Revolution’ and want to be able to support themselves and even profit from their vision and hard work?  There are those who create to create and share, and then there are those who are INCENTIVIZED to create by the ability to make money off of their work. This is what copyright is for, whether it is evoked to protect content broadcast over the air-waves, streamed across the internet, or downloaded on a MakerBot in the comfort of one’s own home. Maybe the law requires targeted “tweaks” now and then to accommodate the specifics of any given technology, and maybe society still needs to toy with where we draw the lines as to the duration of protection as we have done in the past, but the basic principle hasn’t changed since the Statue of Anne was passed by England’s Parliament in 1710.[8]

So when I am told by some 3D Printing companies that they don’t need legal counsel because they “don’t generate enough IP work,” I say that is exactly why they need expertise in this area — so as NOT to generate IP work. I believe to avoid another Napster scenario as this technology becomes increasingly commonplace, market leaders have to be proactive. The leaders in this space need to recognize the importance of balancing the rights of the creative community with that of the equally creative technology developers, and they need to have that conversation sooner rather than later. They need to respect the “bundle of rights” of intellectual property owners and give them the option of exercising those rights however they see fit. They need to create an environment that is safe for all to participate, so as to foster both user and creator confidence. And they need to comply with existing laws to deter counterfeiting and piracy and work with both communities to find technological solutions to deter these crimes. History has shown that if a service is created that offers quality plus convenience, the bulk of consumers will opt for this service over free most every time.[9]  Steve Jobs proved this, but he was uniquely positioned at the intersection of content and technology given his roles at both Apple and Pixar.

3D printing needs to look at the ecosystem that is this industry rather than the technology alone and regulate itself before others do.  These promising enterprises need to understand the history and context of legal challenges to new technologies and business models so that they can anticipate and respond to the controversies that will inevitably flow from their inventions. Only then can this vibrant community of early adopters thrive, thereby ensuring that the future of the 3D printer does not go the way of the Player Piano.

[1] White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1 (1908).

[2] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

[3] A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001).

[4] Indeed, in a famous letter, the composer John Philip Sousa had this to say about the advent of the player piano roll and the gramophone:  “….for the life of me I am puzzled to know why the powerful corporations controlling these playing and talking machines are so totally blind to the moral and ethical questions involved. Could anything be more blamable, as a matter of principle, than to take an artist’s composition, reproduce it a thousandfold on their machines, and deny him all participation in the large financial returns….”  John Philip Sousa, The Menace of Mechanical Music, 8 APPLETON’S MAG. 278 (1906).

[5] See Business Insider, “Here’s the 3D Printed “Game of Thrones” IPhone Dock That’s Banned by HBO,” http://www.businessinsider.com/game-of-thrones-iphone-dock-2013-8.

[6] According to Wikipedia, “The Walt Disney Company has become well known for protecting its trademark on the Mickey Mouse character, whose likeness is closely associated with the company, with particular zeal. In 1989, Disney threatened legal action against three daycare centers in Florida for having Mickey Mouse and other Disney characters painted on their walls. The characters were removed, and rival Universal Studios replaced them with Universal cartoon characters.”  Wikipedia, “Mickey Mouse,” http://en.wikipedia.org/wiki/Mickey_Mouse#cite_note-64.

[7] Note that Mickey Mouse is not only subject to copyright protection, but to trademark protection.  Trademark protection in the 3D Printing “universe” is also a very important topic that will be the genesis of much litigation, as well.  But we leave that for another day.

[8] See Primary Sources on Copyright (1450-1900), Arts & Humanities Research Council, http://copy.law.cam.ac.uk/cam/tools/request/showRecord.php?id=record_uk_1710.

[9] A recent article in MacWorld celebrating the 10th Anniversary of the ITunes Stores opines on its success: “Then, in walks Apple with a compelling idea: People who are motivated to steal music will continue to do so. But if you make stealing more trouble than it’s worth by making digital music easy to find and purchase, and you price it reasonably, the vast majority of people will choose to buy rather than steal. And so was born the iTunes Music Store.”  Breen, Christopher, “Why the ITunes Store Succeeded,” MacWorld, April 2013, http://www.macworld.com/article/2036361/why-the-itunes-store-succeeded.html.

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