[P2P-F] Ars Technica Article On IP Law Implications Of 3D Printing

[Michel Bauwens]

 Ars Technica Article On IP Law Implications Of 3D
Printing<http://groups.google.com/group/openmanufacturing/t/a81bb56d468d9b1a>
Bryan
Bishop <kanzure at gmail.com> 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-questions-as-3d-printing-comes-of-age.ars/

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-possible-with-3-d-printing-updated/
>.
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?gid=sg35824
>
.

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-policy/
>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-stifle-an-innovative-future.ars
>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-3d-printing
>,
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,_Inc
.>.
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/arstech-20
>.
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.jpg
>
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-or-not.html
>that
the appearance of the Catan files on Thingiverse also raised
IP concerns<
http://www.publicknowledge.org/blog/3d-printing-settlers-catan-probably-not-illeg
>,
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&parentId=
>—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

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