Constitution Daily

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3D printers as the next intellectual property game changer

October 21, 2013 by Deven R. Desai and Gerard N. Magliocca


Deven R. Desai from the Thomas Jefferson School of Law and Gerard N. Magliocca from Indiana University look at how 3D home printers could change legal guidelines for patent, copyright, and trademark laws and even Internet content rules.

Mojo_3D_PrinterChange may be coming rapidly to the world of copyright and intellectual property law thanks to new printers that create three-dimensional objects at home and at work.

3D printing is the next step in general-purpose computing. The technology is developing rapidly. The cost of printers is falling just as the cost of personal computers did in the 1980s when they reached homes and businesses of all sizes.

Editor’s note: The authors’ full research paper is available on the Social Science Research Network here.

The quality of printing is improving with new printers able to print items made of plastic, metal, and even compounded chemicals. Design software makes it simple to create an item and then print it. Scanners allow someone without design skills to capture the contours of an object and print it.

The technology seems so powerful that several groups may seek to hobble it in the name of protecting incumbent intellectual property rights holders, or stopping home printing of guns or both. We believe that those efforts would be mistakes. Like the dawn of the digital age for copyright, we are at the dawn of digital things. And like that previous era, some legal protections for 3D printing are needed so that it can thrive and have a chance to live up to its potential.

The promise of 3D printing is that people will be free to make almost anything they want themselves, which opens the door to a new wave of innovation from the home, the start-up, and large firms. If your daughter likes toys with features that you cannot find at the store, then you can make them yourself. If your customers all want goods suited to their quirky tastes, then you can easily match their preferences. And if standardized parts cannot meet market demand, then you can cost-effectively produce many varieties.

The easy ability to customize virtually anything also opens doors for the disabled, the elderly, or anyone who finds that their particular needs are not being met or are unaffordable. Some may question whether consumers will want to embrace these options. Yet Starbucks now faces competition from Keurig and Coca-Cola from Soda Stream, because technology has brought mass-production techniques for espresso and soda making into the home. 3D printing promises to further that trend, especially in patent-reliant industries.

Patent law relies, in part, on the premise that the cost of infringement is relatively high, but 3D printing challenges that assumption. The Industrial Revolution and intellectual property laws supporting that economy were driven by economies of scale.

Plenty of capital was necessary to support research, production, and distribution, and therefore any serious infringement also required a substantial investment. That 19th-century model is collapsing. Copyright was the canary in the coal mine. Once music, film, and books were digitized, those industries were transformed. Production costs fell. Distribution became fast, cheap, and on-demand. Many new players entered the market. Patent is starting down that same road. In short, digitization has reached the rest of the economy—the economy of things.

Our research explores how 3D printing will disrupt patents and other forms of intellectual property that have relied on physical limits to prevent infringement. Current doctrine recognizes the slim chance that an individual or a small business will have the wherewithal to make an infringing item from scratch, but 3D printers will make that much easier.

On the one hand, this shift will reduce the value of many patents, some copyrights, and all trade dress, because even the best efforts to stop this surge in infringement will fall short. On the other hand, 3D printing should accelerate the pace at which design, prototyping, and entrepreneurial launches and failures occur. Thus, these devices offer specific opportunities for creation and the benefits of many other general-purpose technologies: rapid, unpredictable experimentation, faster learning, and increased knowledge growth. As one author has put it, “Radically new technology inspires lyrical utopianism and melancholy catastrophism.”

Whether 3D printing will realize all the dreams it currently inspires is not the question. Stating a given technology’s outcome has never been precise or accurate. The benefits and costs of Edison’s light bulb, nuclear reactors, the use of Freon as a coolant, and other technologies are unpredictable. Exactly how 3D printing will take hold in society is not set, but its rapid uptake at different layers of society indicates disruption of some sort is at hand and growing.

We do not need to know how 3D printing will take hold to know that incumbents will challenge the technology. Part of that strategy will be to demand that the law limit the technology. In short, the law plays a role in any technology’s possibility of success and will do so for 3D printing. As such, we argue the full potential of these personal factories will not be realized unless Congress establishes a sensible regulatory regime that: (1) removes the shadow of infringement liability from people who use 3D printers for personal purposes; and (2) provides clear rules for websites that host the programs that let these devices function. At the same time, companies with a vested interest in the current system must not be allowed to use concerns about homemade guns as an excuse to shackle 3D printing.

Without these changes, 3D printing could be mired in fights over protecting old business models. And mistaken regulation could fall into path dependent solutions where creators are told to use a 3D printer only for certain purposes. These changes, however, balance interests and create the space 3D printing needs to become the foundation for the next wave of general-purpose computing and creation.

Deven Desai is a law professor at the Thomas Jefferson School of Law and just completed serving as the first Academic Research Counsel at Google, Inc. Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over 20 articles on constitutional law and intellectual property.

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