An overview of potential legal matters with 3D printing

This first in a series of articles by US Patent Agent Ronald Yu regarding legal issues arising with 3D printing.

About a year ago, Peter Hanna wrote a great piece The next Napster? Copyright questions as 3D printing comes of age and despite its title, Hanna covered several other intellectual property laws namely trademark and patents.

Do I agree with him? I agree that 3D printing is potentially fraught with legal dangers and share his underlying concerns but I think that 3D printing has the potential to open a legal can of works far bigger than Napster.

Napster primarily dealt with intellectual property (IP) and within IP, really only copyright law. 3D printing could involve several different types of IP (as Mr. Hanna alluded to in his article) and much more.

To get an idea of how big the potential legal problems might be, consider what you can do (or perhaps will be able to do) with 3D printing and 3D printing technology.

One can already produce spare parts, shoes, toys with 3D printers, body parts, even chocolate . A designer could create a unique set of toys, with his logo using 3D printers while another might make some sculptures featuring an image of a celebrity. A company could set up a 3D printing operation to help architects, engineers and designers produce scale models of their building designs. One could also create software for 3d printing applications such as the one scientists at Carnegie Mellon created a few years back. An inventor could create new type of 3D printing technology, a new type of substance to be used in 3D printing, a new file format to replace STL, or even a new manufacturing process involving 3D printing.

While the political/economic implications of all this are profound (and beyond the scope of this piece) the legal implications are also quite complex. Just the above list alone potentially touches several areas of law – patents, trademarks, copyright, publicity rights, tort, privacy and criminal law.

Production of edible foodstuffs raises potential food safety concerns – what if a chef created some edible hors d’oeuvres on his 3D printer that caused some of his patrons to suffer food poisoning or worse?

Medical applications raise privacy and medical safety issues – what if a body part produced on a 3D printer did not help heal but rather caused further injury to a patient?

A company that set up a 3D printing service may be dealing with sensitive designs and if files are lost or confidential designs are revealed, the firm may have contractual matters (among other things) to deal with. That company would also need to be concerned about its customers using its systems to produce counterfeit goods.

Finally, the potential of (low cost) 3D printing to democratize manufacturing could lead to potential product liability concerns – what if a helmet a person produces on a 3D printer for her friend’s daughter fails to protect her from a fall from a bike? And what about people who might use 3D printing to produce knock-offs?

Thus, there are a lot of potential legal problems that could hinder the progress of 3D printing. Will certain parties use the law against 3D printing service providers, users or even 3D printing companies? Almost certainly. Would such people be justified in their use of the courts? Maybe, maybe not.

There are many complex issues, many complex questions to deal with.

Over the next several weeks I plan to pen a series of article starting with intellectual property, a subject I lecture on in the University of Hong Kong then expand to other areas. The law in Hong Kong is obviously different from the law in other countries, such as America, but many legal concepts that apply in one country apply elsewhere (although the opposite is also true, that what applies in one place may not apply elsewhere).

The articles are not meant to be legal advice and anyone with a legitimate legal matter should seek advice from a qualified legal professional in his/her jurisdiction.

This was an article in the series: 3D Printing and Intellectual Property Rights

Jack

I’ve been wondering about this and really look forward to reading your future articles.

3D printing may end up being not only the third industrial revolution, but also a bonanza for lawyers.

But one thing that will be interesting and unstoppable, it seems, is what people scan and replicate on their home 3D printers someday. Do you like a statue you see in a store? Just take a few shots of it with you iphone and go home and print yourself a copy. Ha! This is going to get interesting as the technology improves and becomes more prevelant.
Mike

If you think about it there are several ways one could use a 3D printer, and one for personal use is just like a combination of audio or video recorders and players have been used in the past.

It’s always been legal to record and play music for your own personal use (in the US) using a device designed, manufactured and built for that express purpose. This kind of thing should continue to be allowed for 3D printing.

The Napster analogy is a perfect one thought because if a 3D scanned file gets replicated and distributed that would essentially be like forwarding the ‘plans’ to the device that is the intellectual property of a company or individual. Whether it’s done for free or for monetary gain is beside the point. The true ‘owner’ of that design will not be getting the benefit of that design.

And what about improvements? Say you like a design but you make one small change and call it your own. Is that a patent infringement or have you created something entirely new? How significant does the change have to be to make it unique? Can it just be aesthetic or does it have to be functionally different? Good luck sorting this one out, especially with the ‘open source’ trend that’s going on now with all kinds of development.

I’ll be looking forward to the rest of this series…
- http://www.kraftwurx.com Chris Waldo
  
  Mike,
  
  Great points – this definitely won’t be a black or white kind of market when it comes to copyright issues. Making a minor adjustment on a existent design is one topic which I’m curious about. Creative commons will play a huge role with this issue in my opinion. Sure, there are going to be people who steal the work, but artists can label their work with certain limitations – some of which prohibit altercations of their design, while others give away total freedom. It’ll definitely be interesting to watch, and I’m glad to NOT be a lawyer dealing with it haha.
  
  @Ronald – very cool article, we’ll see how this all unfolds as 3D printing becomes more mainstream.
  
  Cheers,
  -Waldo
http://www.sculptcad.com Emily

What a great bunch of questions. Your Napster analogy reminds me and I’m sure others of the unpredictable nature of the world of patents and intellectual property. Who knows, maybe as with Napster, someone like Apple will step in again, and we’ll all be happy to spend 99 cents on .stl files of cups and scissors. Maybe there’ll be a new drop down menu in our iTunes store: iMake anyone?

Look forward to reading the rest!
Ronald Yu

Let me first reply to Mike’s comment about certain permitted sharing of, say pictures or music files There are defences against an action for copyright infringement under what would be known as Fair Use in American law (and, in some other places, Fair Dealing).

While I like Mike’s suggestion of employing some sort of ‘Fair Use’ exemption in 3D printing whether rights holders (some of whom have lots and lots of money) would agree to this is another question – and there are other types of IP rights (IPRs).

With regards to innovations, that’s another complex matter I’m planning to tackle under patent law and perhaps, design rights.

As for Jack’s comment about 3D printing becoming a potential bonanza for lawyers, given all the political and economic implications of a disruptive innovation that a ‘third industrial revolution’ represents, if you consider all the potential displacements not just of workers, retailers (why drive to the store when you can print at home?), manufacturers and countries whose economies depend on their respective industrial sectors, you can be certain that vested interests will attempt to throw up roadblocks to 3D printing possibly including new laws to regulate 3D printing.

One might wonder about the practical enforceability of such laws yet although it is common sense that laws ought to be enforceable to be truly effective it that has not stopped governments in the past from introducing legislation that cannot be enforced.

Second, regarding my comment about IPR holders needing to enforce their IPRs, rights holders may be obligated to take action against other parties. For example trademark law, if a trademark holder does not enforce his trademark rights he could risk losing the trademark. (More on that in later post).

Moreover, an IPR is an asset and any responsible IPR holder would want to maximize (or at least not see the reduction in) the value of his/her assets.

However, having said that, I don’t condone excessively harsh enforcement actions by IPR holders against innocent infringers. But I do want readers to consider that IPR holders do have the right and in some cases the obligation to protect their rights.

Finally, my friend Sharron (who is a legal mind par excellence) pointed out that I had overlooked one thing in my first post, parody.

I think I’ll write a whole post on it later, and will the probably introduce you to my favorite form of parody, which is the Chinese shanzhai phenomenon.

However, let me give you one scenario. Let’s say Designer X is a famous maker of very expensive handbags and I decide to use my 3D printer to make statues of Ding, my Rhodesian Ridgeback/Shar-pei mix (see picture) holding what looks like a Designer X handbag in his mouth. At the base of the statue is the inscription ‘Designer X handbags are for the dogs.’ Or let’s say I use my 3D printer to make garbage bags or air sickness bags with Designer X’s logo all over them.

I would be fairly certain that Designer X probably won’t be too amused by any of this and could very well threaten me with legal action. This raises some potentially tricky legal questions.

Would I be infringing Designer X’s IPRs? (Possibly though I might have a fair use/fair dealing defense)

Could I be defaming Designer X? (Good question.)

If Designer X got an injunction forcing me not to make more statues or air sickness/poop bags, could they be restricting my constitutional rights to free speech? (Well assuming I have such constitutional rights where I am, maybe.)
Pingback: 3-D Printing – Copying by Another Name? – Blog by LegalIT Lawyers - Superior Service. Outstanding Results.
Pingback: 3-D Polymer Printing Will Keep Lawyers Busy | Polymer Solutions Newsblog

About Ronald Yu