It’s not until the battery explodes in your Tesla that you start to worry about product liability law, but it’s an important method for holding manufacturer’s and commercial enterprises accountable for the risk that they impose on you as a consumer. Nora Freeman Engstrom, Associate Professor at Stanford Law School, has written an essay published in the Penn Law Review that points out the fact that 3D printing might completely change the way we look at who’s responsible for what, in terms of the risk faced by consumers of 3D printed goods. In the essay, titled “3-D Printing and Product Liability: Identifying the Obstacles”, Engstrom argues that, “if home 3D printing really does take off, PL litigation as we know it may, in large measure, dry up. And, if it doesn’t, the technology threatens to unsettle the theoretical justification for product liability law’s development.”
The author first takes existing product liability law and attempts to apply it to the practice of home 3D printing (foregoing industrial AM and other applications for simplicity’s sake). Taking for granted the fact that consumers will have a much easier time printing objects that could potentially cause injury, she lists the three different parties likely held accountable in the case that a defect in a 3D printed object leads to harm: 1 – a hobbyist selling a printed object; 2 – a 3D printer manufacturer; or 3 – the digital designer of a 3D printed object. So, in the case that you injure yourself with a defective 3D printed slingshot, who’s responsible and how can it be proven? If I printed it and sold it to you, should I be held accountable? If you printed it yourself, should ACME Corp take the blame or should the person who designed the .stl file?
Engstrom indicates that any of the above parties might be difficult to pin the blame on, given current liability law. According to the current state of the law, “The rule does not . . . . apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar” and, so, a casual hobbyist who sells one or two printed slingshots can’t be found liable. 3D printer manufacturers are difficult to blame because, not only would the printer have to be proven defective at the time that it printed a faulty item, but also, before it left the warehouse in the first place. inally, Engstrom believes that it’s not easy to characterize digital designers as responsible parties because of the way that the courts define information:
..liability law applies only… to “products”— defined by the Third Restatement as “tangible personal property.” And, though there’s some contrary authority, there are strong arguments that code does not qualify.
The digital designer will liken his code to information contained in books — and a number of cases hold that such content is not a “product” for PL purposes.
She goes on to explain the nuances of software and product liability law, saying that, while video games are more closely tied to intangible information, digital objects might more closely link to “navigational or aeronautical charts”, in that they won’t necessarily raise 1st Amendment objects and are “highly technical and instructional”. In addition, if an .stl file is considered a type of “product” (and not just “information”), for the designer to be held accountable, the product “is expected to and does reach the user or consumer without substantial change.” Because the file is significantly transformed into a 3D printed object, some judges may not find digital designers responsible for the end-product.
Associate Professor Engstrom does bring up some interesting points, especially in regards to the liability of digital designers. In the case of selling 3D printed objects, I don’t see the law becoming that much more complicated than it probably has already become due to online stores like Etsy, in which the definition of occasional sales might have been blurred. In terms of the sale of digital designs, however, this technology presents the first instance in which the lines between consumers and producers are really beginning to vanish. The author explains that, because product liability law is typically used to hold commercial enterprises accountable, 3D printing poses a challenge: “It empowers ordinary Americans to become countertop creators—and not merely of jam and lemonade, but of material that’s complicated, sophisticated and potentially dangerous. In so doing, 3D printing severs the long established identity between manufacturers and sellers, on the one hand, and enterprises, on the other.”
As someone somewhat less grounded than many in the law profession, I’m more concerned with the boundaries between tangible and intangible. Product liability law is all well and good, but what happens when 3D printing (and augmented reality, for that matter) makes it impossible to distinguish between what’s in our heads and what’s outside of them?
Feature Image Source: user moli on Thingiverse