Moderated by Rebecca Tushnet • Georgetown University Law Center
Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things
Deven Desai is a law professor at the Thomas Jefferson School of Law and just completed serving as the first Academic Research Counsel at Google, Inc. Gerard N. Magliocca, Professor of Law & Associate Dean for Research at Indiana University School of Law.
Desai: Digitization: business and legal change together = disruption. Already happened with copyright—moving into other areas. Different possible futures: working with change or replaying the copyright wars. Three levels of manufacturing: home, start-up, large factory. Freedom to make anything you want at all those levels—at home, already using 3D printing to play with toys. But Mattel may not be thrilled when people reconfigure Barbie. Rapid prototyping for startups: excess talent/crowdsourcing used to make/improve a car design. At the high end, GE Aviation bought a 3D printing company to make precision parts for jet engines.
Current setup is for tinkerers—open source, user friendly (for certain values of “users”) and prices are coming down fast. Revolutionary products have a growth phase: if this is like early computers/early web, it’s tipping to where ordinary people can use it. $3500 printers; Staples has an intro one for $1200. There was a moment when you’d run to Kinkos to print—UPS has a pilot program for 3D printers on the same model.
Lego spoon designed to connect with real Legos; auto parts; etc. But there are plenty of hiccups both practical and legal. Designs copied may be covered by copyright or patent; designs could eventually be made at full scale. Could even print food! Or guns, as others have noted. Guns are regulated in various ways—including by patent. Current printed gun doesn’t last very long. But it will keep improving. That’s the challenge.
Magliocca: Patents: there will be a lot more infringement, particularly by homes/small businesses, when 3D printing rises. What should Congress do? Go down the copyright road, trying to shore up patent protection by increasing penalties for infringement/new causes of action/new remedies. This is probably what many in patent industries will lobby for. It was futile then and futile now, which doesn’t mean it won’t happen. Congress could also do nothing, which would be better but still leaves luckless individuals sued for patent infringement, made examples of. Chilling effect/unfair in light of overall nonenforcement. Congress could also create an exemption for things that are printed by 3D printers for personal use. An exemption could be substantive, or procedural (bar remedies against individuals).
DMCA notice and takedown: defense to intermediaries that take certain actions in response to complaints. That would help address the home infringer as well. Also possibly an experimental use exception, though it’s construed too narrowly to help almost anyone now: Fed. Cir. could revise its interpretation (or be instructed to do so).
That’s patent, but copyright is also implicated: you can make your own Harry Potter figurine. That’s not as dramatic given what we’ve already seen with copyright, mp3s and such. But software copyrights used to make 3D printed objects are a potential issue. Originality as an issue? Is there merger between the idea of making an Easter Island head and what the program does (making an Easter Island head)? People have very strong reactions to this question of merger. Copyright doctrines may need to change.
Also, briefly, trade dress will also increase in infringement as people can make Coke bottles at home: implications for value of trade dress as marketing tool. If people see bad-looking versions, do they attribute that to the brand (post-sale confusion)? In a world of 3D printing, seeing something in someone’s house may not trigger any thought that it is attributable to the original TM owner.
Comments: Michael A. Carrier, Distinguished Professor, Rutgers School of Law
Innovation needs attention, not just “piracy.” What does the law do facing new technology? His empirical survey of CEOs/VPs in music industry provides lessons for innovation in 3D.
Innovator’s dilemma: large well established companies are likely to pursue sustaining innovation—incremental improvements, tweaking the status quo and appealing to existing customers with short-term payoffs. Not interested in destructive innovation, radical breakthroughs that upset existing business models. Upstarts do that. Music labels were victim of innovator’s dilemma—considered digital to be a passing fancy; focused on short term—executives worried about bonuses; 5 years from retirement and didn’t want to rock the boat. Similar concerns: established companies have the most to lose from 3D.
Sky is falling: every time we see a new tech, it’s the end of the world as we know it. Sheet music publishers hated player pianos. John Philip Sousa feared deterioration in American music from player piano; Jack Valenti of MPAA said the VCR was the Boston Strangler. These were mistakes. But new tech taking direct aim at existing business model provokes fear. Maybe some fears are legit with guns, but expect the sky is falling narrative no matter what.
Napster as service: litigation empirically stifled innovation, caused venture capital to dry up. Napster allowed trading individual songs, which we now take for granted. That was no sure thing in 1998. Executives: admitted they padded albums; Napster brought about a new way of consuming music that broke open the record label model, forcing them to embrace a new type of presentation to the public. There are new possibilities 3D printing can bring about that could revolutionize consumption.
User innovation: Eric von Hippel has emphasized that users innovate in ways that contrast with manufacturers—users customize to their needs/desires; many manufacturer innovations fail, so coming from the users can be very valuable/exciting. Rich literature there on which to draw.
Amateurs: last 15 years have shown that amateurs can do a lot they couldn’t do before at every stage of the creative process. Creation: GarageBand and iMovie. Selection: no longer limited to music label’s A&R. Still a role for that, but also for bottom-up. Production and dissemination, likewise.
Why does innovation get lost by the wayside? Innovation asymmetry: infringing uses are definable/threatening, take direct aim at copyright owners. Noninfringing uses are less tangible, not advanced by army of advocates, less obvious at onset of technology. History of inventors who didn’t know how their products would be used: Alex. Graham Bell thought the phone would be used to broadcast news; Edison thought phonographs would record deathbed thoughts; railroads were supposed to serve canals; IBM thought there was a market for 10-15 computers.
Lesson: Congress should stay out of the way; courts should err on side of allowing uses rather than trying to stamp out every instance of infringement, which won’t work anyway.
Michael Weinberg, Vice President, Public Knowledge,
3D printing takes people away from computer screens and back into the real world. Internet has trained a lot of people in how to think about IP. 20-30 years ago most people didn’t think about IP at all; then computers/internet happened and IP became more salient. The thing that will be striking in the physical world is that the world is full of things that have no owner, aren’t protected by IP. Many things are, but the ratio is different. For a lot of people, that takes a major readjustment of your worldview. There are things that are freely copiable/integrable into another project.
When people realize that, many things happen. The free universal construction kit: designed to interconnect many toys, from Legos to Lincoln Logs. Patented at one point, but patents expire. Make 7/8 boxes of toys into one big box. Why not?
Old sculptures in the public domain: they may feel more new/relevant than old books in the public domain—sculptures from 500 years ago do not date in the way that paintings and songs have. The public domain of physical things feels different. Metro. Museum of Art is scanning its collection, and people can mash it up: put your face on a sculpture. Slow process of realizing, not in a super activist way, that we can re/create culture. Innovation will be unanticipated.
Internet copyright conversation largely started from the assumption that the things at issue were protected by copyright. Went to fair use, etc., but fundamental protectability was basically assumed from the start. 3D printing is different: we need to back up a step and ask about protectability.
Tushnet: I was struck by the paper’s descriptive claims: “Today, if you buy a doll, a Lego set, or a car, the ability to alter, tinker, or improve your purchase is low. 3D printing, however, opens the door to personal improvement. You still buy the doll or dollhouse; but once a child is bored, 3D printing allows you to design and create new heads, limbs, or furniture.” I’d suggest more focus on affordances and how technology changes the salience and visibility of options: resculpting Barbie was always possible; you could always chop the doll’s hair off, make her new clothes, or even melt her limbs in the toaster; you could always build dollhouse furniture; we (lawyers) just didn’t notice it or think it was important for the law to grapple with the possibility. Same as fan fiction, fan art, Batman in the backyard. (Mike Carrier: some amateurs made remix video throughout much of the 20th century. We just didn’t know about it until the internet hit.)
Authors and commenters suggest that there’s a lot of untapped desire for customization: the paper uses the example of sales of soda mixers. Suggested explanation: people have different flavor preferences, and thus customization is of value to them. My suggestion: this account may be enriched by a more social explanation—consider the history of cake mixes, where mixes without eggs sold well not just because they produced better cakes but also because they satisfied a need in some bakers to participate in the process. Laura Shapiro, Something from the Oven: Reinventing Dinner in 1950s America. What box cake makers did was convince women that the key participatory moment came with decorating the cake, customizing it, personalizing it. 3D printers, to the extent they catch on, may succeed not just by satisfying preferences but by creating and shaping preferences for how one’s possessions are configured.
Related: the descriptive claim is that consumer can now decide what Lego looks like: the related question will be what kind of licenses will be available. Rather than just licensing their own files, I expect copyright and trademark owners will wish to get control of files created by others, using their claimed rights as leverage to do so. Compare Amazon Kindle Worlds: an attempt to move noncommercial production into the commercial world through licensing—no consistently and overtly asserted oversight of the actual production, but attempts to collect money at the point of distribution (which could be, here, the distribution of designs).
Also, authors note that consumers may seek more assurance that they’re getting the “real” thing, whatever that means, and not something printed out at home by the seller. Consider then the potential of ID numbers and objects that phone home not (solely) to control the purchaser in the seller-purchaser dyad, but to authenticate the purchaser to third parties. We are status-seeking animals; people may be willing to surrender personal information if it means that their friends can verify that their Gucci is real by scanning the QR code.
As for proposed DMCA analogue for 3D printing patent/TM claims: Not so sure that authors are right that the DMCA notice and takedown scheme is agreed to be working “reasonably well”; there are plenty of howls about it, which is part of how we got SOPA/PIPA and the content industries are not done yet.
Desai: DMCA is problematic, but what are the alternatives?
Carrier: notice and takedown is a lot better than the possible alternatives. It at least is geared to the specific copyrighted work at issue, with a process available for dispute. Going beyond to places like SOPA/PIPA and TPP where we’re willing to punish any tech that enables/facilitates infringements or aids and abets liability (TPP). That can take down just about everything without much notice.
Weinberg: is printing practicing the patent? Even if so, it’s not infringement to host the description of practicing the patent. Liability should not necessarily be assumed.
Carrier: music file is instantaneous, but here there is more work involved in actual printing. Extra friction slows things down compared to music files.
Magliocca: at what point does the scale become so great that action is reqiured. You could make your own gun at home now with the know-how, but not that many people do. (Weinberg: more people do it with lathes & milling than you think. One feature of these debates is that you discover many many communities of practice doing stuff already—the ATF even has a regulatory framework; it was a solved policy problem in many ways.) Ok, not enough people do to trigger a general regulatory response.
You can make a Coke label with a color copier. It’s not a difference in kind, but a difference in degree.
RT: this gets to licensing as a solution: if you make universal licensing possible, then the content owner can say that no legal reform is necessary; if you don’t have a license, your website should shut down.
Desai: note that even streaming is a possibility: licensors could stream files to printers and contractually bar copying/alteration.
Weinberg: music licensing people react to the idea that people won’t need licenses for 3D printing by saying “look, we’ll license everything—we’ll put a package together.”
Desai: we are trying to create spaces where individuals are protected. Thingiverse and Makerbot have weird notice and takedown policies—trying to act in good faith but not get crushed. Clearer statement/legal recognition. If the VCR has substantial noninfringing uses, so do these.
Audience Q: shift in copyright from possession to use. People don’t care as much about owning tracks if they can always listen to it. Is that transferable to 3D printing, which is at its core is about possession?
Carrier: Music is different because of the repeated play.
Weinberg: Ownership and control of physical object in way you don’t have with iTunes track. Reverse engineering is becoming increasingly simple. So even if you can’t hack the stream, you could copy the object. How effective is the license then?
RT: People rent cars and houses. Why not watches?
Weinberg: why would the owner ever come after you at the end?
RT: well, enforcement ability changes—could bar you from selling on eBay. Sometimes the claims made—we’ll protect individuals but discipline institutions—seem to work against the alleged transformative potential of the technology itself.
Q: what about a private use exception? If yard sales won’t ever be covered, is there extra value?
Magliocca: it could be mostly symbolic: showing that this is okay. Copyright litigation against individuals didn’t seem to do much in the end, though innovation was inhibited in terms of investment/risk averse entities. Could be fighting some chilling effect. For those unlucky few who are found out, could change things. The remedies are pretty severe here.
Carrier: the remedy is a central part. Copyright’s statutory damages are a really big deal.
Weinberg: legitimizing the market: selling to individuals becomes possible.
RT: notice that one of the paper’s proposals wouldn’t do that by barring individual liability but still allowing them to infringe.
Q: what about protecting creators? The panel seems in agreement, but many people aren’t interested in innovating, they just want to copy.
Weinberg: creators do already have rights in the present system. They can be enforced now. The lesson of the last two decades is that you can sue particularly bad actors, but your best solution is to make access to legitimate works really simple. There is a role for infringement lawsuits, but economically the better way to use your resources to police your rights and maximize your revenue is to think about distributing as easily as possible.
Carrier: scale. If your sculpture is copied by one person at home, that’s a very different effect than someone copying it to sell on the market. Innovation is the best way to deal with infringement; if you made a better product, people wouldn’t be interested in the pirate copy. People want relationships with artists.
Magliocca: 3D printers are not replicators. They have limits on size, materials, and skill. They will continue to improve, but there’s a way to go. There’s always a war within consumers between desire for customization/free stuff and their laziness. Download from the company’s website is simpler than having to find it somewhere else and risk the file being wonky. Authenticity (whatever that means) means something to many people.
Q: people printing toys that aren’t safe for children/could have hazardous parts or materials. Innovation may be wonderful, but what do we do with that kind of shifting of risk/liability?
Magliocca: product liability for homemade/manufactured goods—at one level, there ought to be no difference if a defectively designed product injures someone. But should homemade toys come with warnings? We expect more of commercial manufacturers. Exposing more people, including children, to risk. There may be visible examples where things go wrong—need to look both at designs and materials.
Desai: Etsy—people have come to understand that handcrafts are different than mass-produced items. Laziness factor—where brands/TMs come into it. Mattel might change its business, so it can supply materials as well as designs, and provide security in that way.
Carrier: deal with it ex post rather than possibility of harm. Find the market failure and deal with it then, otherwise we’ll never know what we’re missing.
Weinberg: Nora Engstrom of Stanford wrote a great paper on these issues.