Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice.
3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain — sharing the plans on how to make something in exchange for exclusivity — may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now. …
3D printing is the next step in general-purpose computing. Michelangelo said that he made statues by removing the parts of the stone that hid the sculpture, but 3D printing promises to transform manufacturing by applying the opposite idea.136 Activities that were once the province of only a few are now in the hands of many. The patent system has been able to require disclosure of how a process works, because the cost to infringe was high. Now, cost structures that once required an inventor to find a deep-pocketed outside backer are gone. The design, manufacture, and distribution of goods is easier, faster, and less expensive than ever before.
￼The give and take between the copyright industries and Silicon Valley indicates that the DMCA, even with its arguable flaws, hit the sort of regulation proper for emerging technologies. For example, Google’s YouTube could have tried to rely on the DMCA and deny any responsibility for content on the site. Yet copyright lawsuits and questions about whether the DMCA was still fair forced a type of self- regulation. YouTube developed Content ID. In that system, copyright holders share digital fingerprints of their work with YouTube. When a user creates a file, it is compared against the fingerprint database. If it appears to be a match, the copyright holder is notified and then chooses how to proceed by either issuing a takedown notice under the DMCA, doing nothing, or choosing to place advertisements and/or links to buy the song on the page where the video is watched.
These tasks can be done at home, in a start-up, or a large business. Patent law and industries that rely on patents will have to adapt to this new environment or face potential obsolescence.
Given the disruptive potential of 3D printing and the large swaths of the economy affected by that technology, it will take just one or two industry groups to force a repeat of the mistakes of the copyright wars instead of applying the best lessons from them. Some may wish to follow the copyright industry’s strategy of seeking new laws to prosecute anyone who uses this new technology to infringe a patent. Some may demand technological solutions similar to digital- rights-management tactics deployed by the copyright industry. Some may want to attack intermediaries who provide the files for potential infringement. The DRM solution has not worked. Attacking blatant piracy sites is still an option, but demanding that intermediaries such as eBay or YouTube be shut down has been rejected as a solution. Thus the book, music, and film industries world have started to abandon such strategies, embraced digital distribution, and still make healthy profits.
3D printing should be lightly regulated because it enables precisely the kind of creation and progress of the useful arts and sciences that intellectual property is supposed to foster. The locus of that good work is shifting but that does not diminish that progress is occurring often faster and at less cost. The dawn of the Web increased and revealed the scale at which individuals and businesses engaged with, shared, and used copyrighted or trademarked intellectual property. At scale, the old models of enforcement and what constituted infringement had to be rethought. To have even the chance for the PC and Web industries to experiment,grow, and thrive, the specter of copyright lawsuits or trademark lawsuits had to be mitigated. Trying to stop or dictate the way a 3D printer is used unduly limits the potential of these general-purpose machines and mimics the failed DRM ideas of the copyright industry. The largest threat comes from uncertainty in the law. Revising patent law to have a high minimum amount-in- controversy as a jurisdictional threshold would create a de facto fair use standard for home and experimental 3D printing activities. In addition, a patent DMCA would strike a balance between rights holders and intermediaries. As has happened in the copyright world, such a law has fostered new marketplaces and revenue models that allow for greater sharing, remixing, and selling of intellectual property. 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.