Ars Technica Article On IP Law Implications Of 3D Printing<http://groups.google.com/group/openmanufacturing/t/a81bb56d468d9b1a> Bryan Bishop <[email protected]> Apr 06 01:43PM -0500 ^<?ui=2&view=bsp&ver=ohhl4rw8mbn4#12f2fe6fc1814c2e_digest_top> http://arstechnica.com/tech-policy/news/2011/04/the-next-napster-copyright-q... The Penrose Triangle is as elegant as it is impossible—much like M.C. Escher’s drawings, it presents a two-dimensional illusion that the eye interprets as three-dimensional. The task of effectively creating this illusion in three dimensions, without resorting to hidden openings or gimmicky twists, seemed daunting until a Netherlands-based designer named Ulrich Schwanitz succeeded in printing the object recently< http://www.ff3300.com/wordpress/input/impossible-penrose-triangle-now-possib...

. But Schwanitz, who posted a YouTube video of his design achievement<http://www.youtube.com/watch?v=B09SQCsMQok>in action, wouldn’t share his secret with the world. Instead, he made his “impossible triangle” available for purchase through Shapeways, a company that fabricates custom 3D designs, for $70< http://www.shapeways.com/model/206411/impossible_triangle_5____12_cm.html?gi...

. Within weeks of Schwanitz’s “discovery,” however, a 3D modeler (and former Shapeways intern) named Artur Tchoukanov watched the video and figured out how to recreate the shape. He then uploaded instructions to Thingiverse<http://www.thingiverse.com/thing:6456>, an open-source repository of 3D models and content. BoingBoing picked up the story <http://boingboing.net/2011/02/17/impossible-penrose-t.html> (well, part of it), and “wrongly” credited Tchoukanov as the initial creator of the object. The same day the story ran, Schwanitz sent Thingiverse a DMCA takedown notice< http://blog.thingiverse.com/2011/02/18/copyright-and-intellectual-property-p...

and demanded that the site remove Tchoukanov’s design (and a related one) because it allegedly infringed Schwanitz’s copyright. Although the copyright claim was questionable at best—was Schwanitz asserting copyright in the 3D design file, the image, or the structure itself?—Thingiverse nevertheless complied with the notice and removed the offending designs. The Penrose triangle

“For better or worse,” Thingiverse founder Bre Pettis wrote on the site’s blog, “we’ve hit a milestone in the history of digital fabrication.” A few days later, after coming under Internet scrutiny, Schwanitz rescinded his DMCA complaint< http://boingboing.net/2011/02/21/3d-printings-first-c.html>and promised to release his shape into the public domain. But the damage was done. As Cory Doctorow eloquently put it, Schwanitz “became the inventor of something much more substantial than a 3D Penrose Triangle—he became the inventor of copyright threats over open 3D repositories.” Schwanitz’s DMCA takedown notice was indeed a milestone for Thingiverse, which had operated free of any public accusations of patent or copyright infringement since it was founded. As a result of the incident, Thingiverse updated its legal page with DMCA language <http://www.thingiverse.com/legal#dmca>. But the complaint spoke to something broader, and far more significant for 3D printing as a new technology: Schwanitz’s takedown was the first shot in the next theater of the intellectual property (IP) wars. It was also the first formal attempt to apply copyright law to regulate content on a 3D printing repository of any kind. While Ars readers have enjoyed great coverage< http://arstechnica.com/tech-policy/news/2010/11/3d-fabbers-dont-let-the-dmca...

of 3D printing-related topics, the general public still isn't familiar with the technology. Indeed, many of my legal colleagues were baffled as I explained how any physical object can now be scanned to generate a CAD (computer-aided design) file and later recreated—anywhere, anytime—using a 3D printer. All agreed that such a technology would have unprecedented implications for intellectual property law (and vice versa).

As with all technology, as 3D printing becomes simpler, more powerful, and more common, it will catch the eyes of more lawyers, regulators, and, of course, individual designers like Ulrich Schwanitz. And that will mean conflict. Here's a primer on some of the key legal issues that will frame the upcoming battles. A disruptor like no other Though still in its infancy, personal 3D printing technology already shows the same disruptive potential as the original printing press. Just as moveable type spread across Europe and democratized knowledge, the proliferation of 3D printers eventually promises to democratize *creation*<http://www.economist.com/node/18114221?story_id=18114221>. Broken dishwasher part? Download the relevant CAD file and print it out in plastic. While Amazon made trips to the store seem dated, 3D printing will make ordering (some) things online feel positively quaint. Most people think of “printing” as a strictly 2D affair, but 3D printing works much like its 2D cousin, the inkjet printer, though it builds up a succession of layers to form its objects. Such printers can cost between thousands <http://sldtech.com/?page_id=299> and hundreds of thousands of dollars (a build-it-yourself model, the RepRap<http://www.reprap.org/wiki/Main_Page>, can be assembled for a few hundred bucks). <http://static.arstechnica.com/03-25-2011/reprap_machine.jpg> The RepRap The fabrication process begins with a 3D design file, created from scratch or drawn from a 3D scan of an object. Software deconstructs the 3D image into a series of 2D cross-sectional slices and the printer deposits layers of material<http://www.me.psu.edu/lamancusa/rapidpro/primer/chapter2.htm#fdm

, typically plastic <http://www.redeyeondemand.com/FAQ-Materials.aspx#whatarematerialsused>or metal< http://i.materialise.com/blog/entry/i-materialise-launches-stainless-steel-3... , one atop the other in the shape of each 2D slice. The layers are fused, and the fabricated object is treated and hardened.

Because 3D printers don’t need to carve material from preexisting blocks (as in sculpture), the process allows for elaborate and visually<http://www.flickr.com/photos/imaterialise/5224237885/> stunning shapes <http://www.unfold.be/pages/projects/items/utanalog> to be created in a matter of hours with no manual labor. The size of these shapes is only limited by the size of the printer making them—heck, combine a big enough one with a space probe and you’re halfway to Von Neumann technology. All that is well and good, but as Thingiverse recently discovered, any technology that allows users to digitize and replicate objects is bound to have some IP implications. And it’s precisely because of its potential as a game changer that 3D printing presents challenging legal questions best addressed before the technology becomes ubiquitous. Gutenberg didn’t have to worry much about intellectual property laws, but he had to compete with an array of other legal and societal challenges to his invention. Eventually copyright, a novel concept in the 16th century, emerged as a means to regulate Gutenberg’s disruptive technology< http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml>. 3D printing is especially intriguing from a legal perspective because, like the printing press, it has broad implications for the existing legal regime (including all three areas of IP - patent, copyright, and trademark), but it also presents issues that may warrant broad changes to existing law—or require new laws entirely. Under the radar In discussing the topic with colleagues and reviewing the state of the law, I found that few people have spoken up on how the law will influence 3D printing. How has so disruptive a technology remained in the legal shadows? First, the promise of one day making anything, anytime, out of almost any material <http://www.economist.com/node/18114221?story_id=18114221> is so broad that no one knows—or can really know—exactly how that technology will affect them. P2P software and websites that became flush with copyrighted media quickly drew the ire of studios who were directly being harmed. But artists, designers, and inventors alike may take a wait-and-see approach until 3D printing technology directly affects them, just as Schwanitz did. A Dimension 3D printer Second, 3D printing today remains a hobbyist-driven enterprise with a high barrier to entry. Some readers may recall that it wasn’t until Sony began advertising an affordable Beta-format VCR in 1975 that Hollywood studios took notice of home video recording and famously decided to file suit against Sony< http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios... .>. Trying to regulate a technology that’s not yet ready for prime time may simply be premature for lawmakers and lobbyists alike. Lastly, there hasn’t been a truly high-profile allegation of infringement against or within the 3D printing community. Napster operated freely until Metallica complained <http://www.wired.com/politics/law/news/2000/04/35670>of finding a demo circulating on the user network, a discovery that spawned a cavalcade of other aggrieved musicians. The 3D printing community, animated as it is by an open source *esprit de corps*, simply hasn’t had a defining “Napster moment” yet. If the current 3D printing free-for-all sounds too good to last, it is. The community today is small and has avoided, either by chance or design, stepping on any really big toes (sorry, Ulrich). But to see why the hammer will fall eventually, consider the existing 3D object hosting sites. The risky business of hosting 3D design files Two models have emerged for websites that distribute and/or fabricate 3D designs. In the first model, users freely upload, improve upon, and distribute virtually any designs at all. This “open model” is typified by Thingiverse, where users share designs under Creative Commons licenses. The second type of website, which we might call a “money model,” commercializes aspects of the 3D printing process. Sites like Shapeways, where you can order custom designs for everything from jewelry<http://www.shapeways.com/themes/jewelry>to “impossible triangles,” have embraced this approach. Other “money model” sites will even sell 3D designs for highly distinctive designer items. These sites will no doubt proliferate as 3D printers become more common, and they will seek to capitalize on the legal uncertainty associated with distributing 3D design files for copyrighted and/or patented items. While each model embraces a different view of the future of 3D printing, all are likely to face some of the same fundamental legal challenges. Sites that distribute protected content, whether they do so out of (non-commercial) enthusiasm for the technology, or out of the desire for revenue, always make better targets for rightsholders than the users of those sites, so websites like Thingiverse and Shapeways are likely to be first in the crosshairs. While those two sites in particular have been well-behaved from an IP perspective, rightsholders looking for targets today needn’t go too far to find them. The open model It's unlikely that a legitimate rightsholder would refrain from suing Thingiverse simply because it advocates an open source, non-commercial approach to sharing 3D designs. But so far, the site has only acknowledged one IP-related complaint, that of Ulrich Schwanitz. This is curious, as Thingiverse’s collection boasts designs for things like companion cubes <http://www.thingiverse.com/thing:1622> (*Portal*), and Darth Vader heads <http://www.thingiverse.com/thing:1636> (*Star Wars*). Thingiverse also hosts design files for the hexagonal tiles<http://www.thingiverse.com/thing:5727>and game pieces <http://www.thingiverse.com/thing:5755> used in the popular Settlers of Catan< http://www.amazon.com/MayFair-Games-4102480-Settlers-Catan/dp/B000W7JWUA/ars...

. Distributing any of these files could put Thingiverse on the receiving end of a more forceful DMCA notice (or a cease & desist letter) than Schwanitz’s. After all, these are lucrative, million (and in the case of *Star Wars*, billion) dollar intellectual properties. So what gives? < http://static.arstechnica.com/03-25-2011/1141_zcorpprinter_650_0014_LOWRES.j...

3D printer from ZCorp We can only speculate why Valve and George Lucas haven’t done anything, but it’s probably because so few people have 3D printers and any takedown might be bad PR. No one appears to be mass producing companion cubes or Vader heads and selling them. There was considerable speculation< http://blog.makezine.com/archive/2011/02/thingiverse-3d-catan-pieces-legal-o...

that the appearance of the Catan files on Thingiverse also raised IP concerns< http://www.publicknowledge.org/blog/3d-printing-settlers-catan-probably-not-... , but that was unlikely for a couple of reasons. First, board games are afforded only limited copyright protection—you can’t copyright the concept or ideas that animate the rules of a game. Moreover, the Catan pieces—basic, non-ornamental shapes (many of which have less detail than the replacement game pieces over at Thingiverse)—would likely enjoy only a modest degree of copyright protection. Second, it appears Settlers of Catan isn’t patented. Unlike copyright, which attaches to a creative work the moment it is fixed in a tangible medium, a patent issues only after applicants go through the lengthy and costly patent prosecution process before the United States Patent and Trademark Office. (Think of it this way: copyrights are made, but patents have to be earned.)

But Valve, Lucas, and the publishers of the Settlers of Catan series may be taking some risk by letting these designs slide. While the 3D designs hosted on Thingiverse seem directed toward a very small hobbyist community, if companies fail to police their IP rights, what would stop an overseas manufacturer from downloading the designs, mass producing knockoffs, and selling them through Amazon, eBay, or another storefront entirely? Of course, the designs could be procured elsewhere, but courts often look unfavorably on parties that sit on their rights. The money models What if you could print any designer chair, iconic jewelry, or antique car parts for a fraction of the actual price? We already know that a purely philanthropic or non-profit purpose doesn’t usually shield a website from the weight of IP law enforcement. However, sites that overtly try to profit from or monetize others’ copyrighted works or patented inventions may more quickly attract attention, and lawsuits. Take for example, 3Docean, which allows users to buy designs for an Alessi tea set <http://3docean.net/item/alessi-il-conico-tea-set/124379> that retails for a few hundred dollars elsewhere<http://www1.bloomingdales.com/catalog/product/index.ognc?ID=115891

. On another site, the3dstudio, users can download the model for a Jonathan Adler chair<http://www.the3dstudio.com/product_details.aspx?id_product=35892 that retails for $700 at Neiman Marcus< http://www.neimanmarcus.com/store/catalog/prod.jhtml?itemId=prod119360008&pa... —quite a steal.

The downloadable Alessi tea set and Adler chair are far more troubling from a legal perspective than the Catan game pieces. They are highly distinctive, artistically expressive and entitled to copyright protection, and they may also have separate patent protection. In both instances, the websites offering the downloadable 3D files use the trade names of the original designer/manufacturer—Alessi and Jonathan Adler—also implicating trademark concerns. That said, it’s unclear how many sales have been made (and how many products have been printed -- P2P Foundation: http://p2pfoundation.net - http://blog.p2pfoundation.net Connect: http://p2pfoundation.ning.com; Discuss: http://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation Updates: http://del.icio.us/mbauwens; http://friendfeed.com/mbauwens; http://twitter.com/mbauwens; http://www.facebook.com/mbauwens