Heralded for ushering in a new era of personalized manufacturing, there is a growing fear that consumer 3D printing is the next frontier of massive intellectual property infringements. Described as the Napster of patents, illegal 3D printing is foretold to disrupt manufacturing in the same manner as digital piracy unsettled the music industry.
This Article shows that the negative forecast of rampant 3D printing piracy is overstated. We explain how the purported analogies between P2P file sharing and consumer 3D printing overlook essential differences between piracy of media content and physical property. We caution against aggressive enforcement against unauthorized consumer 3D printing that would impede innovation and the development of 3D printing technologies.The authors argue
Additive manufacturing is predicted to change the world as we know it. By enabling a do-it-yourself manufacturing model for small companies and consumers, 3D printing is expected to set about an "industrial counter-revolution" of sorts, in which manufacturing is no longer synonymous with assembly lines and processing plants. As 3D technologies become more widespread, the average consumer will, from the comfort of his or her own home, be able to use affordable 3D printers to design and manufacture most products currently available in retail markets.
Consumer 3D printing has experienced a tremendous boost in recent years. The industry's global market value exceeded $7.3 billion in 2018 and is expected to multiply in coming years. A growing group of users — taking advantage of price reductions in 3D printing hardware — are already engaging with this new technology on home computers, manufacturing physical items such as small sculptures, toys, and decorative or useful items.
However, as new applications of 3D printing emerge and 3D technologies and markets mature, the 3D printing revolution is causing deep anxiety among some intellectual property owners and commentators. There is a fear that Internet users will scan, upload, and distribute unauthorized 3D models of objects over which they have intellectual property rights. There is growing alarm is that in a world with 3D printing, physical consumer goods will be subject to the same fate as HBO's Game of Thrones: massive online piracy.
Historically, reproduction and distribution costs have limited the scope of illegal markets for patented and trademarked materials. However, by drastically reducing the costs of reproducing physical objects, 3D scanners and printers pave the way to decentralized piracy of items of manufacture. By enabling the conversion of physical materials into digital format – much like MP3 files did for copyrighted works – 3D printing technologies empower individuals to scan and post objects on the Internet, free for others to download and print in physical form. As a result, 3D printing threatens the value of intellectual property rights. Commentators proclaim that 3D printing presents an existential challenge to the core bargain that underlies patent law: the grant of a time-limited exclusive legal right in an invention in exchange for the inventor's disclosure of the invention. This bargain "may be meaningless in a world of digitized things."
Some assert that the digitization of physical objects threatens to disrupt manufacturing industries in a similar, if not wholly parallel, manner as experienced by the music industry in the late 1990s. The dogged enforcement campaign by music record labels during that era vividly illustrates the daunting challenge of enforcing intellectual property rights in a setting of mass, decentralized online infringement. In the file-sharing and torrent era, copyright holders face a mass of individual infringers, each of whom are difficult to identify and costly to pursue.16 Infringement occurs inside the home, creating a perception of security and anonymity among infringers. Stakeholders and observers fear that consumer 3D printing might bring a similar Napster doomsday scenario to intellectual property rights-holders more generally.
This Article argues that concerns as to a future of rampant consumer 3D printing piracy are exaggerated. Analogies connecting P2P file sharing19 and 3D printing are flawed, as they neglect essential differences between the piracy of audiovisual content and physical goods. The anxiety about 3D printing vastly overestimates the future magnitude of 3D piracy markets. Digitization and printing of physical goods involve substantial costs and efforts that were absent in the Napster-MP3 revolution. 3D printing technologies currently impose considerable burdens on users — including expertise, out-of-pocket costs, and an ever-present risk of defective printouts — and will continue to impose burdens for the foreseeable future. These complications will continue to suppress the supply and demand of 3D pirated materials.
Furthermore, even if advancements in 3D printing technologies were to eliminate all practical limitations, it is unlikely that manufacturing industries will face a Napster scenario as a result of 3D printing piracy. The demand forphysical materials is less concentrated than for music, the social dimension is less strong, warehousing is expensive, and the manufacturing industry can avoid the social backlash that fueled the fires of digital music piracy. As a result, it is highly doubtful that illegal 3D scanning and printing will confront jewellers, fashion designers, and manufacturers of consumer goods such as toys, games, home furnishings, and sports equipment, with the type of industrywide disruption that the music and movie industries experienced. We caution against aggressive enforcement and preemptive regulatory policies. Alarmist overreactions tend to induce regulatory action that is premature, ill-advised and may harm innovation. To counter these adverse effects, we provide insight to the proper scope and timing of regulatory action in relation to 3D printing.
This Article is organized as follows: Part I describes the basics of 3D printing, explains how it differs from traditional manufacturing, and evaluates the commercial prospects of consumer 3D printing. Part II describes the rising anxiety about 3D printing piracy and establishes the context for that fear, namely, the digital music piracy era associated with Napster. Part III describes various complications of 3D printing that suppress the public supply and demand of pirated 3D materials. Part IV explains essential differences between music piracy and 3D printing. Part V provides policy recommendations. Part VI concludes.'A first look at the designs repair defence in Australia' by Tyrone Berger in (2019) 14(5) Journal of Intellectual Property Law & Practice 358–359 comments that in GM Global Technology Operations LLC v SSS Auto Parts Pty Ltd [2019] FCA 97 the Federal Court of Australia delivered the first judgment that reviews the repair defence in the Designs Act 2003 (Cth), ruling that spare parts can be acquired for both repair and enhancement, and the defence should be available in such cases.
Berger argues
Car enthusiasts buy less expensive Holden Commodores and upgrade them with parts designed for the top level Holden Special Vehicle (HSV) and comparable models so that they appear as a more costly version. The owners of these genuine vehicles refer to such practices as ‘mutton dressed as lamb’. In response, the applicant GM Global Technology implements controls over the sale of its HSV parts in an attempt to discourage such practices. GM Global Technology became aware in 2013 that the defendant SSS Auto Parts was importing replica parts for HSVs and commenced proceedings alleging that the replicas infringed its designs registered under the Designs Act 2003 (Cth). SSS Auto Parts responded by seeking to rely on section 72 of the Designs Act 2003 (repair defence), which provides that certain repairs do not infringe registered designs. When a defendant raises the repair defence under section 72, the onus is on the registered owner to prove that SSS Auto Parts ‘knew or ought reasonably to have known’ that use of the impugned parts was not for the purpose of repair. In dispute was whether GM Global Technology has discharged its burden by proving that SSS Auto Parts knew or ought reasonably to have known that the replica parts were purchased as enhancements to customize Commodores to look more like HSVs. As part of the dispute, SSS Auto Parts also filed a cross-claim alleging unjustified threats of infringement.
Both parties accepted that the qualifying requirements of the repair defence had been satisfied. SSS Auto Parts accepts for the purposes of section 72(1)(a) that it has used products in relation to which a registered design and that each impugned part embodies a design that is identical, or substantially similar in overall impression, to GM Global Technology’s registered design. The parties also accepted that each of the impugned parts is a component part of a complex product within the meaning of section 72(1)(b). However, SSS Auto Parts claims that the use of each of the impugned parts is for the purpose of repair so as to restore its overall appearance of the product in accordance with section 72(1)(c).
This raised a discussion as to the scope of the repair defence, and the meaning of ‘purpose’ in the context of section 72. GM Global Technology asserted that there needs be a predominant purpose of repair. It contended that the term ‘purpose’ in section 72 should be understood in the same sense of ‘intent’. In this regard, if the registered owner proved that the alleged infringer knew or ought reasonably to have known that the product might (rather than would) be used for a non-repair purpose, then the section 72 defence would fail. On this point, Burley J held that section 72 contemplates that a part may have a dual purpose: for a permitted repair purpose or a non-permitted purpose. Despite concessions by SSS Auto Parts in cross-examination that some parts might not be used for the purpose of repair, the judge stated that the immediate question was the purpose of the importer or seller, not of the person who acquires the part from them.
Drawing on s117(2)(b) of the Patents Act 1990 (Cth), the judge specified that GM Global Technology ‘must establish on the balance of probabilities that SSS must have known or ought reasonably to have known that the use was not for the repair purpose’ (emphasis in original). SSS Auto Parts contended that its business model was always to supply spare parts for repairs. In this context, the company proceeded to implement ‘repair only policies’ and execute a sales directive, which reflected steps taken in order to ensure that sales were made in the correct manner. Burley J held that ‘it is difficult to imagine a more explicit indication of the purpose’. The judge also found that GM Global Technology had not discharged its burden of establishing that the importing, keeping for sale or offering for sale of replica parts by the defendant was not for the repair purpose.
