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ADDITIVELY MANUFACTURING A BETTER LIFE: HOW 3D PRINTING CAN CHANGE THE WORLD WITHOUT CHANGING THE LAW Jordan L. Couch* TABLE OF CONTENTS I. INTRODUCTION .................................................................................... 517 II. WHAT IS 3D PRINTING? ....................................................................... 519 III. HOW 3D PRINTING CAN AND WILL CHANGE THE WORLD .................. 523 A. The Social and Economic Impact of 3D Printing ........................ 523 B. What 3D Printing Means to the Legal World .............................. 528 IV. YOU CAN’T SUE THE GENIE BACK IN THE BOTTLE: LESSONS FROM THE DIGITAL MILLENNIUM .................................................................. 531 V. PERSUASION, THE KEY TO LEGAL CONTROL OF 3D PRINTING ............ 534 A. The Good and Bad of Changing the Law ..................................... 535 B. A Simpler Alternative ................................................................... 539 IV. FINAL WORDS ...................................................................................... 542

I.

INTRODUCTION

On January 19, 2012, in an attempt to fight online piracy, the United States Government shutdown the popular media streaming website Megavideo.1 As of October of 2013, much of the media available on Megavideo became available on sites such as Sidereel, Megashare, Solarmovie, Watchseries, and Couchtuner. This article will not comment on the value of the government’s attacks on websites, but one thing is certain: the spread of electronic information has grown

* Jordan is a plaintiff’s attorney at Palace Law in Tacoma, Washington and a graduate of Indiana University Maurer School of Law. Keeping up with legal trends is as much a hobby for him as it is a part of his practice. Special thanks to Professor Marshall Leaffer and to Danie Roy for all their help. 1. Press Release, Dep’t of Justice, Justice Dep’t Charges Leaders of Megaupload with Widespread Online Copyright Infringement, (Jan. 19, 2012), http://www.justice.gov/opa/ pr/2012/January/12-crm-074.html.

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far beyond the days when shutting down Napster meant something.2 Media piracy has been greatly tempered by legal websites like Netflix, Hulu, and iTunes, but a new, much greater challenge to product protection is coming.3 The ever-growing availability of 3D printing (also known as additive manufacturing) and 3D printed products is revolutionizing the way the world works. Physical objects from food and medicine to guns are becoming no more protectable than an mp3 file of the latest pop hit. Although the current 3D printing revolution has included mostly do-ityourselfers (or “DIYers” as they are called) independently creating designs for useful and decorative objects, we have already begun to see certain designs being copied directly from copyrighted and patented products.4 As 3D printing becomes more popular in households, the desire to copy recognizable designs, rather than create new ones, will increase. At first it will be simple objects—a pair of designer sunglasses5 or fancy silverware—but as 3D printing technology progresses, people will be able to copy exact designs of brand name purses, decorative works, and even cars. Consequently, many in the Intellectual Property (IP) community consider this new technology to be a doomsday nightmare for law as we know it.6 While the hype probably exceeds the reality, the 3D printing revolution will undoubtedly change the face of product protection and nowhere is that more visible than in design protection. With the advance of 3D printing technology, design protection will be just as difficult to manage as any product protection, but the goals of design protection will lose much of their relevancy.7 The man who makes a pair of Ray-Bans for his own use does not create a risk of market confusion, nor does he cheapen the name of Ray-Ban because what he 2. See Nancy Chandross, Napster Shutdown, ABC NEWS (July 27, 2001), http://abcnews.go.com/Technology/story?id=119627. (Indeed, even at the time Napster was shut down, other illegal downloading sites existed such as http://www.limewire.com). 3. See Tom Risen, Online Piracy Grows, Reflecting Consumer Trends, U.S. NEWS & WORLD REPORT (Sept. 18, 2013), http://www.usnews.com/news/articles/2013/09/18/onlinepiracy-grows-reflecting-consumer-trends. 4. See e.g., Brian Rideout, Printing the Impossible Triangle: The Copyright Implications of Three-Dimensional Printing, 5 J. BUS. ENTREPRENEURSHIP & L. 161, 161 (2011); Kelsey B. Wilbanks, The Challenges of 3D Printing to the Repair-Reconstruction Doctrine in Patent Law, 20 GEO. MASON L. REV. 1147, 1147-48 (2013). 5. 3D print Ray ban sunglasses model, 3D PRINT FOX, http://www.3dprintfox.com /file.php?n=Ray-Ban-Sunglasses&id=1495 (last visited Feb. 4, 2016) [hereinafter Ray Ban] (DIYers can already download the files necessary to print a pair of Ray Bans complete with “chrome detailing and white printed lettering.”). 6. Danie Roy, 3D Printers and What it Can Mean for Patent Holders, TACTICAL IP (Feb. 15, 2012), http://web.archive.org/web/20140626112349/http:/tacticalip.com/2012/02/ 15/3d-printers-and-what-it-can-mean-for-patent-holders/. 7. See GRAEME B. DINWOODIE & MARK D. JANIS, TRADE DRESS AND DESIGN LAW 211 (2010) [hereinafter Trade Dress] (explaining that design protection is difficult to enforce).

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wears will be in every way identical to the real thing. How to compensate for this loss of protection is an issue many manufacturers are facing already and many more will face soon, but there are very few answers currently. As companies, politicians, and attorneys look for ways to protect manufactured products from this new form of infringement, it is important to keep two things in mind. First, one must be aware of what this technology means to the world. 3D printers are not just a way for anti-establishment millennials to avoid paying for their Sperry-brand shoes; they are a way for low-income individuals to acquire the necessities of modern life. Second, it must be remembered that the problems facing product protection are not new; the IP world has already faced media copyright problems caused by the Internet age.8 This article draws parallels between the Internet media revolution and the imminent 3D printing revolution, thus allowing analysis of possible methods of protection. Further, this article suggests a course of action for those who wish to protect products, while also allowing for the betterment of the lives of lowincome individuals. Part II provides a brief overview of what 3D printing is and how it works.9 Part III discusses the impact that 3D printing will have on socioeconomic equality and current legal structures.10 Part IV examines the similarities 3D printing has to online media and discusses the impact and results of the fight against media piracy.11 Part V explains the shortcomings of expanding traditional product protection and suggests that the best protection for IP holders is to combat piracy by releasing products themselves.12 Part VI concludes by emphasizing the opportunity lawmakers and IP holders have to lead our nation one step closer to socio-economic equality.13 II. WHAT IS 3D PRINTING? Additive manufacturing, commonly known as 3D printing, is the process of constructing objects by adding materials in successive layers.14 This process diverges from traditional “subtractive” manufacturing through which objects are 8. Marcy Rauer Wagman & Rachel Ellen Kopp, The Digital Revolution is Being Downloaded: Why and How the Copyright Act Must Change to Accommodate an EverEvolving Music Industry, 13 VILL. SPORTS & ENT. L.J. 271, 247 (2006) (explaining the consequences of modern technology and how those realities have uprooted traditional notions of copyright). 9. Infra Part II. 10. Infra Part III. 11. Infra Part IV. 12. Infra Part V. 13. Infra Part VI. 14. Matt Petronzio, How 3D Printing Actually Works, MASHABLE (March 28, 2013), http://mashable.com/2013/03/28/3d-printing-explained/#hqpG8YewSiqX.

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formed through cutting or machining raw material.15 Although there are a wide variety of 3D printers available today, all of them function in the same basic way. The process begins with an idea, and then product designers build a digital model of the object they wish to create, usually enlisting the help of computer aided design (CAD) software.16 These digital models (usually in the form of CAD files) can be made from scratch by a designer or from an existing object using a 3D scanner that outlines the contours and features of an object.17 Once a CAD file has been completed, the file is sent to a printer in much the same way as documents are transferred from computers to inkjet printers.18 When the printer is ready to go, the magic begins. Following the directions of the CAD file, the printer releases small amounts of material, sometimes only micrometers thick, onto a flat surface.19 At this point, the process is very similar to standard printing, but when the first layer is complete, 3D printers keep going. The printing surface, known as the base tray, is lowered and another layer of material is added; this process continues until the structure is completed.20 Each consecutive layer will differ from the previous as much as the object being made requires.21 Although 3D printing technology has been around for thirty-seven years, only recently has it begun exploding into the marketplace: the industry has grown at twenty-five percent per year for the past decade.22 This spike in popularity has followed decreases in cost and progressions in technology that have made the advantages of 3D printing begin to outweigh the difficulties.23 However, in some ways, 3D printing still lags behind traditional manufacturing methods. In general, additive manufacturing is limited in the size of what can be manufactured.24 The size of the printer determines the available motion and thus how large a printed object can be. The MakerBot Replicator 2, for instance, has dimensions of 49 cm x 32 cm x 38 cm, but has a build volume of only 28.5 cm x

15. Id. 16. See id. 17. Wilbanks, supra note 4, at 1151. 18. See generally, Petronzio, supra note 14. 19. Mitchell Moffit & Gregory Brown, Will 3D Printing Change Everything?, ASAPSCIENCE (Dec. 1, 2013), http://www.youtube.com/watch?v=QD2Rdeo8vuE. 20. Wilbanks, supra note 4, at 1152. 21. See id. 22. As cost goes down, 3-D printers begin to make an impression, PHYS ORG (Aug. 1, 2013), http://phys.org/news/2013-08-d-printers.html. 23. See Wilbanks, supra note 4, at 1153-54. 24. Terry Wohlers, The Future of 3D Printing with Terry Wohlers, ENGINEERING.COM (Sept. 9, 2013), http://www.engineering.com/3DPrinting/3DPrintingArticles/ArticleID/6294/ The-Future-of-3D-Printing-With-Terry-Wohlers.aspx.

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15.3 cm x 15.5 cm (or approximately seven liters).25 In addition to size issues, 3D printing continues to be too slow for large-scale productions and too expensive for many home users.26 In spite of these difficulties, governments and private companies continue to invest in this technology, making it cheaper and more versatile.27 In the early 1990s, 3D printers cost between $15,000 and $25,000.28 Today, a good printer can be purchased for about five hundred dollars, while companies like RepRap29 are working to make them almost free.30 These changes have allowed companies and individuals to take advantage of the many benefits of additive manufacturing. Industrial entities have been especially keen on the use of 3D printing due to its prototyping advantages.31 A 3D printer can make prototypes faster and with more cost-effectiveness than traditional methods because no production tools are required, no material is wasted, and objects can be designed with mathematical efficiency and immense complexity.32 For home users, 3D printing offers goods that are cheaper and more customizable than equivalent, market products. One example of those advantages is the robotic, prosthetic hand that twelve-year-old Leon McCarthy was able to make for himself for only ten dollars.33 McCarthy’s father downloaded the plans for free, and his school allowed him to use their printer for the required twenty minutes, leaving only ten dollars worth of materials to be paid for.34 The school did not mind McCarthy’s project because, just like an inkjet printer, a single 3D printer can print a nearinfinite variety of objects while only taking up a small space. When that versatility is combined with the cost-efficiency of printing your own products, it is unlikely that 3D printer costs will continue to be an issue for individual buyers. While robotic hands are a great representation of what 3D printing can be, they are not perfect representations of where 3D printing is today. Much of the printing that takes place today falls more into the category of fun or useful

25. MAKERBOT, http://store.makerbot.com/replicator (last visited Apr. 3, 2016) (information on the MakerBot Replicator 2 and other MakerBot 3D printers). 26. Wohlers, supra note 24. 27. Id. 28. Wilbanks, supra note 4, at 1153. 29. REPRAP, www.reprap.org (last visited Feb. 4, 2016) [hereinafter RepRap] (providing more information on the RepRap project). 30. Wilbanks, supra note 4, at 1153. 31. See generally Wohlers, supra note 24. 32. Id. 33. Lisa Winter, Man Makes 3D Printed Prosthetic Hand for Son for Only $10, I FUCKING LOVE SCIENCE (Nov. 5, 2013), http://www.iflscience.com/technology/man-makes3d-printed-prosthetic-hand-son-only-10. 34. Id.

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trinkets than life-changing tools.35 However, some adventurous DIYers have begun making replacement parts for complex market products.36 As the technological possibilities increase, so will possible infringement. In February of 2012, legal writer Danie Roy stated that “a 3D printer having 2 different material cartridges is currently a big deal,” but she noted that the technology is growing exponentially.37 Indeed, by the end of 2013, printers with two materials seem less impressive in light of the many other things 3D printers are doing. In addition to the rubber, plastic, concrete, and metal 3D printers have been using for some time, some companies have begun printing products made of glass and other ceramics, and that’s just for trinkets and tools.38 Many experts have begun making astounding progress in a whole new realm of 3D printing known as bioprinting. Bioprinting is identical to traditional 3D printing in many ways; however, instead of using plastic or metal, bioprinting builds organic tissue by laying out individual cells coated in a dissolvable gel.39 This cell-gel combination, commonly called bio-ink, has already enabled scientists to construct things like burgers,40 replacement skin tissue,41 and perhaps most impressively, a working human liver.42 Despite these miraculous successes, organic 3D printing still has many hurdles to overcome. A 3D printed burger, for instance, currently costs over $300,000 and it is unclear whether it will even taste good.43 Even so, bioprinting adds a new world of opportunity to the already booming 3D printing revolution, and can greatly expand the impact this technology will have on our world.

35. See Rideout, supra note 4, at 177; David Rejeski, The Next Industrial Revolution: How We Will Make Things in the 21st Century and Why it Matters, 43 ENVTL. L. REP. 10232, 10232 (2013); Roy, supra note 6. 36. See e.g., Wilbanks, supra note 4, at 1157-58. 37. Roy, supra note 6. 38. Wilbanks, supra note 4, at 1152 n.29. 39. Christopher Barnatt, Bioprinting, EXPLAININGTHEFUTURE.COM, http://www. explainingthefuture.com/bioprinting.html (last updated Jan. 30, 2016). 40. Natt Garun, A $300k 3D-Printed Burger Exists, Because Why Not?, DIGITAL TRENDS (Jan. 21, 2013), http://www.digitaltrends.com/lifestyle/300k-3d-printed-burger/. 41. Brooke Kaelin, Wake Forest 3D Prints Skin Cells Onto Burn Wounds, 3D PRINTER WORLD (July 19, 2013), http://www.3dprinterworld.com/article/wake-forest-3d-prints-skincells-burn-wounds. 42. Henry Fountain, At the Printer, Living Tissue, N.Y. TIMES (Aug. 18, 2013), http://www.nytimes.com/2013/08/20/science/next-out-of-the-printer-living-tissue.html?_r=0; Stephanie Baum, Could Organovo’s First Commercial Device, 3-D liver model for Pharma, Cut Drug R&D Costs?, MEDCITY NEWS (Nov. 11, 2013), http://medcitynews.com/2013/ 11/organovo-test-drives-3-d-printed-liver-40-days-lab/. 43. Garun, supra note 40.

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3D PRINTING III. HOW 3D PRINTING CAN AND WILL CHANGE THE WORLD

Many economists believe we are entering a third industrial revolution: a place where manual labor is even less needed and traditional production systems fall.44 3D printing is the heart and soul of this revolution; thus, it is in a position that is under a lot of scrutiny.45 For individuals, there appears to be no problem adjusting to new ways, but the same is not true of our legal systems: “[Governments’] instinct is to protect industries and companies that already exist, not the upstarts that would destroy them.”46 3D printing is a perfect example of a destructive upstart. At the very least, as 3D printers expand into homes and communities, some manufacturing plants could lose so much revenue that they become entirely obsolete.47 But what is even more disturbing to some is that 3D printing could make laws and legal protections themselves obsolete.48 “Copyrights groups are shouting anarchy, trademark holders are squirming, and patent holders are giving the death glare,” said Danie Roy of Zies, Widerman & Malek.49 All hope, however, is not lost. 3D printing will change the way the world works, but that doesn’t have to be a bad thing. “[H]onestly,” said Ms. Roy, “I don’t know why there’s not more excitement than doomsday predictions.”50 Intellectual property holders can still protect the fruits of their labor, if not through traditional methods, then through the models established after the digital millennium revolutionized media. More importantly, if government resistance, attorney distrust, and corporate fear are set aside, the wonders of this 3D industrial revolution will become obvious. A. The Social and Economic Impact of 3D Printing Imagine a toothbrush that was customized to your mouth and could make your teeth and gums sparkle in just six seconds. What if it could floss your teeth and clean your tongue as well? The current cost is high, but this product is already

44. The Third Industrial Revolution, THE ECONOMIST http://www.economist.com/node/21553017 [hereinafter Revolution]. 45. Id. 46. Id. 47. See Revolution, supra note 44. 48. Roy, supra note 6. 49. Id. 50. Id.

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being printed.51 Or imagine if Habitat for Humanity52 started printing houses for those in need, 2,500 square feet in twenty hours, customized to the residents’ desire with minimal manual labor and full plumbing and electric.53 On a much simpler note, imagine losing the battery cover to a TV remote. Instead of spending years taping, un-taping, and re-taping batteries in, a file is downloaded, a switch is flipped, and before dinner is ready, a new cover is made.54 The 3D printing revolution is creating a world wherein an individual has the potential to make all of life’s necessities. On a larger scale, the potential for 3D printing to help dying and impoverished individuals is astounding. As of November 29, 2013, there were 120,783 people on the wait list for organs in the United States alone.55 In the notso-distant future, 3D printing could give them not just organs, but the medicine they need to recover, too.56 Studies indicate that, in 2012, as many as 633,782 people in America were homeless at one point.57 During the same year, over 40,000,000 Americans were on food stamps.58 In the future, 3D printing could give them the food and homes they need to survive.59 These are some of the ultimate goals of 3D printing enthusiasts, but as has been shown, they are not out of our reach; in the meantime, 3D printing can help in other ways. 51. Blizzident has this to say about its product: “Blizzident is the new tailored toothbrush. It automatically cleans all teeth perfectly—always. By just biting and grinding, a dense field of tailored bristles is cleaning all your teeth within 6 seconds, perfectly applying the “Modified BASS”- and “Fones-” toothbrushing-techniques. It can even floss while brushing, and clean your tongue too.” For more information and video demonstrations, see BLIZZIDENT, http://www.blizzident.com (last visited Feb. 13, 2016). 52. For more information, see HABITAT FOR HUMANITY, http://www.habitat.org (last visited Feb. 13, 2016). 53. Behrokh Khoshnevis, Contour Crafting: Automated Construction: Behrokh Khoshnevis at TEDxOjai, TEDXTALKS (Apr. 28, 2012), http://tedxtalks.ted.com/video/ TEDxOjai-Behrokh-Khoshnevis-Con. 54. Amy O’Leary, 3-D Printers to Make Things You Need or Like, N.Y. TIMES (June19, 2013), http://www.nytimes.com/2013/06/20/technology/personaltech/home-3-dprinters-to-make-things-you-need-or-just-like.html. 55. For current data from the Health Resources and Services Administration regarding organ procurement and transplants, see ORGAN PROCEDURE AND TRANSPLANT NETWORK, http://optn.transplant.hrsa.gov (last visited Feb. 9, 2016); Moffit & Brown, supra note 19. 56. Fountain, supra note 42. 57. The State of Homelessness in America 2013, NATIONAL ALLIANCE TO END HOMELESSNESS & HOMELESSNESS RESEARCH INSTITUTE, 3 (Apr. 2013), http://b.3cdn.net/ naeh/bb34a7e4cd84ee985c_3vm6r7cjh.pdf. 58. Brad Plumer, Why are 47 Million Americans on Food Stamps? It’s the Recession –Mostly, WASHINGTON POST (Sept. 23, 2013), http://www.washingtonpost.com/blogs/ wonkblog/wp/2013/09/23/why-are-47-million-americans-on-food-stamps-its-the-recessionmostly/. 59. O’Leary, supra note 54.

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Even if a home and a Thanksgiving meal cannot yet be made for every impoverished family, many other life changing products, taken for granted by much of the world, can already be printed.60 Hyacinth Mascaren has recently published an article that illustrates the world’s economic disparity.61 The article tells the story behind 21 pictures of children and their bedrooms.62 One is a fouryear-old with trophies and tiaras brilliantly displayed by the light of a princess themed chandelier.63 Above her is a seven-year-old with a straw roof, a mattress she shares with her two siblings, and not much else; the description mentions her job at the quarry, where she has worked for four years.64 The difference between these rooms is a market price of thousands of dollars, but 3D printing can change that. Thingiverse already offers free CAD files for tiaras, intricate chandeliers, and bed frames.65 By introducing a 3D printer into the community through schools or libraries,66 the only cost left to a child is the low price of material.67 Best of all, the products turned out by 3D printers are not cheap knock-offs; they are quality products identical to those in traditional markets. It is no secret that expensive possessions change the way a person is treated, but possessions do more than that. Luxury items give the owner psychological security, protecting the owner from a world that judges based on economic status.68 Whether it’s a gold watch, nice sunglasses, or a fancy car, luxury items carry associations of power and class. They help to exemplify the American socio-economic divide brought so aggressively to light by 2011’s Occupy Wall Street movement.69 3D printing may not be able to direct money straight from 60. Infra Part II. 61. Hyacinth Mascarenhas, 21 Images of Where Children Sleep Around the World Paints a Powerful Picture of Inequality, POLICYMIC (Dec. 2, 2013), http://www.policymic .com/articles/75173/21-images-of-where-children-sleep-around-the-world-paints-apowerful-picture-of-inequality. 62. Id. 63. Id. 64. Id. 65. These designs and many others can be found at THINGIVERSE, http://www.thingiverse.com (last visited Feb. 13, 2016). 66. 3D printers are beginning to be a staple in libraries. Andrea Peterson, Need to Use a 3-D Printer? Try Your Local Library, WASHINGTON POST (Aug. 1, 2013), http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/01/need-to-use-a-3-d-printertry-your-local-library/. 67. One kilogram of material is sold for as little as fifteen dollars at ALI EXPRESS, http://www.aliexpress.com (last visited Feb. 13, 2016). 68. Niro Sivanathan & Nathan C. Pettit, Protecting the Self Through Consumption: Status Goods as Affirmational Commodities, 46 J. EXPERIMENTAL SOC. PSYCHOL. 564, 565 (2010). 69. For more information about Occupy Wall Street and the socio-economic distinctions that fueled the fire, see Tom Watson, Occupy Wall Street’s Year: Three Outcomes

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the wealthy one percent to the poorer ninety-nine percent,70 but it may help facilitate it. GrabCAD will let people download CAD files for classic Ray Ban sunglasses.71 They even come with “chrome detailing and white printed lettering.”72 Lucas Goossens creates 3D printable jewelry, which is inspired by companies like Tiffany & Co. and Cartier.73 With design files like these being given away, psychological protection and a high-society appearance are becoming only a printer away. For those who want status and practicality, Jim Kor hopes to begin selling his dream in the next few years: a 3D printed car that gets three hundred miles to the gallon.74 Kor hopes to sell his car for as low as sixteen thousand dollars.75 This is all just the beginning, as “[t]he 3D printer can run unattended, and can make many things which are too complex for a traditional factory to handle. In time, these amazing machines may be able to make almost anything, anywhere—from your garage to an African village.”76 Of course, the technology of 3D printing is not all that is changing the world. The culture of 3D printing and the attitudes of the people behind it are just as important. 3D printing would have no hope of changing lives if it were not for people like Jim Kor, who wants to make a car that is as economically and environmentally sound as it is cheap. Leon McCarthy would have never held his backpack in his left hand had Ivan Owen and Richard Von not invested their time and money into designing a robotic prosthetic from which they had no intention of profiting.77 These men exemplify a new culture of selfless designers and do-it-yourselfers who care more about bettering the world than about making money. for the History Books, FORBES (Sept. 17, 2012), http://www.forbes.com/sites/tomwatson/ 2012/09/17/occupy-wall-streets-year/. 70. Although it will not cause a redistribution of wealth, it has been suggested that the 3D printing revolution could stimulate job growth in America as individualized and mechanized production replaces mass manufacturing. Revolution, supra note 44 (“The wheel is almost coming full circle, turning away from mass manufacturing and towards much more individualized production. And that in turn could bring some of the jobs back to rich countries that long ago lost them to the emerging world.”). 71. GRABCAD, http://grabcad.com/library/ray-ban-sunglasses (last visited Feb. 13, 2016). 72. Id. 73. Shapeways, Designer Spotlight: Lucas Goossens, THE SHAPEWAYS BLOG: 3D PRINTING NEWS AND INNOVATION, http://www.shapeways.com/blog/archives/2292-designerspotlight-lucas-goossens.html (last updated July 14, 2015). 74. Joe Bargmann, Urbee 2, the 3D-Printed Car that Will Drive Across the Country, POPULAR MECHANICS (Nov. 4, 2013), http://www.popularmechanics.com/cars/news/industry/ urbee-2-the-3d-printed-car-that-will-drive-across-the-country-16119485. 75. Id. 76. Revolution, supra note 44. 77. Winter, supra note 33.

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Perhaps the best example of this new culture comes from activists Nora alBadri and Jan Nikolai Nelles, who used 3D printing to pull off a rather unique art heist.78 In October of 2015, after a year and a half of planning, al-Badri and Nelles walked into the Neues Museum in central Berlin.79 As they toured the museum’s artifacts, they stopped and lingered, as many visitors do, at the Nefertiti, a 3,000 year old bust of the Egyptian Queen Nefertiti and the crown jewel of the Neues Museum.80 What museum guards didn’t know, however, was that al-Badri and Nelles were using a mobile scanner to create a CAD file of the sculpture.81 Two months later, an exact replica of the Nefertiti was donated to American University in Cairo, and the CAD file was released online for all the world to use.82 The Neues Museum was not amused, but al-Badri and Nelles saw it as a victory in the fight against cultural theft.83 Despite the uproar caused by al-Badri and Nelles, the Neues Museum has yet to take any legal action.84 That again seems tied to the culture of 3D printing; very few people or organizations have pursued legal action. Even Dr. Ulrich Schwanitz, who “sent the world’s first Digital Millennium Copyright Act (“DMCA”) takedown notice for an object created by a fellow member of the 3D printing community,” withdrew his claim, thus reinforcing the idea of free creation.85 As patents (especially design patents) are becoming immensely more valuable,86 people are giving up their rights. This is not just a trend in the 3D printing world. On a national scale, life and career focus is shifting from moneymaking to meaning.87 Instead, “[b]y focusing on making a positive difference in the lives of others, rather than on more materialistic markers of success, [millennials] are setting themselves up for the meaningful life they yearn to have . . .”88 The 3D printing revolution is where technological potential meets this desire to better the world. Out of this union, wonders can come, but change can only come if the legal system allows it. 78. Charly Wilder, Swiping a Priceless Antiquity . . . With a Scanner and a 3-D Printer, N.Y. TIMES (March 1, 2016), http://www.nytimes.com/2016/03/02/arts/design/othernefertiti-3d-printer.html?_r=0. 79. Id. 80. Id. 81. Id. 82. Id. 83. Id. 84. Id. 85. Rideout, supra note 4, at 162. 86. Roy, supra note 6. 87. Emily Esfahani Smith & Jennifer L. Aaker, Millennial Searchers, N.Y.TIMES (Nov. 30, 2013), http://www.nytimes.com/2013/12/01/opinion/sunday/millenial-searchers .html (discussing the lifestyles and aspirations of Generation Y or “the millennials”). 88. Id.

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B. What 3D Printing Means to the Legal World The unique attitude surrounding the 3D printing community has, to date, prevented any serious legal battles from being fought. The battles are coming, however. Unlicensed uses of this technology will happen. This is the Internet world. This is not a world of pirates and thieves, but a world of free and easy sharing, which is ruled by the people. To some, this world is a nightmare. Barbara Streisand was the first wellknown victim of what came to be known as the “Streisand Effect.”89 In 2003, Streisand sued an environmentalist for $50,000,000 after he posted photographs of her Malibu home.90 When the suit was filed, people flocked to the environmentalist’s website, the lawsuit was dropped, and the Associated Press picked up the picture and spread it around the world.91Streisand’s attempt to use heavy-handed legal tools to patch a small problem turned that small problem into an enormous one. Similarly, in 2007, someone posted an encryption code for HD-DVDs on Digg.com, and large corporations quickly responded with a cease and desist letter.92 In the words of Andy Greenberg, “Digg’s administrators cooperated; its users didn’t. Crying censorship, they staged a digital riot, covering Digg’s pages with links to the banned digits, printing them on T-shirts and immortalizing them in a song that’s been played on YouTube more than 200,000 times.”93 These people do not want to create anarchy; in their mind, they are fighting bullying and asking only for respect. Michael Fertik, who makes his living managing the online reputation of companies said, “You have to reason with people and approach them politely. People don’t like that a large entity can beat up on a little entity, and the power of the Internet has been arrayed to support victims.”94 Attempts at strong-arm legal tactics and government regulation have failed just as poorly.95 Today, as physical objects are entering this Internet world, a whole new wave of fear has come.

89. Andy Greenberg, The Streisand Effect, FORBES (May 11, 2007), http://www.forbes .com/2007/05/10/streisand-digg-web-tech-cx_ag_0511streisand.html. 90. Id. 91. Id. 92. Id. 93. Id. 94. Id. 95. Dave Lee, SOPA and PIPA protests not over, says Wikipedia, BBC NEWS (March 8, 2012), http://www.bbc.co.uk/news/technology-16628143 (demonstrating that SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) are the most recent examples of an attempt at government regulation). See also Laurie Segall, Anonymous strikes back after feds shut down piracy hub Megaupload, CNN MONEY (Jan. 20, 2012), http://money.cnn.com/2012/

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3D printing greatly expands the possibilities of creation and thus, the possibilities of infringement. In this new realm of home-created physical objects, people can and already have copied both the ideas and the exact designs of others.96 At times this infringement is done independently, with one man making an object and maybe releasing his process and design to the world through YouTube.97 At other times, a vast community supports the infringement by providing materials, printers, designs, and whatever else you may need. For instance, Thingiverse allows CAD files to be downloaded for free;98 Shapeways allows you to use files they have or upload your own and request items be printed and shipped to you;99 and RepRap does everything it can to provide 3D printers to more people at lower costs.100 These companies thrive on user involvement and do everything they can to maintain an open source 3D printing community.101 Whenever content like a CAD file is uploaded to Thingiverse, users must agree to licensing restrictions that allow any third party to use the CAD file and modify it into their own design.102 In order to modify an existing CAD file on Thingiverse, users must agree to release their new design with the same sharing restrictions.103 All that designers receive for their time and effort is credit and the knowledge that they are making someone’s life better; while this is not much, it is enough to foster a large community of designers.104 This selflessness, while good for the 3D printing community, may also contribute to the lack of care that many in the community feel toward IP infringement and the rights attached to commercial designs. To date, the 3D printing community has shown little concern for the rights they are infringing on, making designs for and printing whatever they want, whenever they want.105 The most iconic symbol of the 3D printing revolution is 01/19/technology/megaupload_shutdown/ (discussing information about the largest of the related protests). 96. See Rideout, supra note 4, at 162. 97. Wilbanks, supra note 4. 98. THINGIVERSE, supra note 65. 99. SHAPEWAYS, http://www.shapeways.com (last visited Mar. 24, 2016). 100. RepRap, supra note 29. The goal of the RepRap project is to create a 3D printer that can print the majority of its own parts making it easier and cheaper for other to acquire home printers. Id. 101. See Rideout, supra note 4, at 164-165. 102. Id. at 165. 103. Id. 104. Id. 105. Steve Henn, As 3-D Printing Becomes More Accessible, Copyright Questions Arise, NAT’L PUB. RADIO: ALL TECH CONSIDERED (Feb. 19, 2013, 3:01 AM), http://www.npr.org/blogs/alltechconsidered/2013/02/19/171912826/as-3-d-printing-becomemore-accessible-copyright-questions-arise.

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a bust of Yoda, which was made famous through Thingiverse.106 One version of the design has been downloaded over 6,500 times;107 it has been turned into a flowerpot, cufflinks, and key chain;108 and it has been used to demonstrate the capabilities of 3D printers.109 Neither Lucasfilm nor Disney have been involved in any of this and, at least publicly, they don’t seem to care.110 It may be that Disney and other companies are choosing not to act for fear of becoming the next victims of the Streisand Effect, but whatever the reason, not all copyright holders have been so nonchalant. After discovering designs for Tintin’s moon rocket on Thingiverse, Moulinsart sent a DMCA takedown notice, insisting the files be taken down.111 While there has not been an Internet backlash, Moulinsart is facing other troubles. Whether Moulinsart’s DMCA claim can succeed is a question no one can answer, as the newness of 3D printing makes it unclear what the law is and where CAD files fit in traditional Copyright schemes. For instance, does a CAD file of Tintin’s rocket count as an infringement of Moulinsart’s “pictorial, graphic,” or “sculptural works” if the CAD file was independently created?112 Or will CAD files and their products need to be considered like architectural works and protected in the form of “any tangible medium of expression?”113 Unfortunately, mediation between Thingiverse and Moulinsart may mean that these answers are not coming anytime soon.114 One way or another, the legal world has to begin answering these questions and preparing to counteract the increase in infringement, not only in the realm of copyright, but in the patent world as well. If the legal world fails to address these new issues coherently and definitively, then uncertainty and inconsistency will abound as individual cases go through trials and mediations in a thousand different ways.115 Fortunately, the Unites States has already battled this monster before, and we have a well-documented history whose mistakes we can avoid repeating.

106. Id. 107. Chylld, Yoda Bust (Cleaned and Simplified), THINGIVERSE, http://www.thingi verse.com/thing:14104 (last visited Apr. 2, 2016). 108. THINGIVERSE, supra note 65. Other designs available by searching ‘Yoda’ on Thingverse. Id 109. Busy Botz, 3D Printing Time Lapse Photography–Yoda, YOUTUBE (June 15, 2012), https://www.youtube.com/watch?v=8_vloWVgf0o. 110. Henn, supra note 105. 111. Id. 112. 17 U.S.C. § 102(a)(5) (2012). 113. Id. § 101; see also Rideout, supra note 4, at 168. 114. THINGIVERSE, supra note 65 (example of website repair due to ongoing mediation). 115. See Wilbanks, supra note 4, at 1150.

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IV. YOU CAN’T SUE THE GENIE BACK IN THE BOTTLE: LESSONS FROM THE DIGITAL MILLENNIUM In 1999, Napster changed the music industry faster than anyone would have believed was possible.116 Almost overnight, it became easy to download as much music as you wanted without paying a cent.117 To many musicians, and even more music lovers, this was a miracle, a way to balance the huge costs of purchasing albums.118 Others, mostly recording companies and some musicians, saw it as nothing but theft.119 To fight the Napster invasion, recording companies acted quickly, suing and alienating the very customers from whom they hoped to profit.120 When that didn’t work, the Recording Industry Association of America (“RIAA”) went after Napster itself.121 Eventually, Napster was shut down under the laws of the Digital Millennium Copyright Act (DMCA), but a dark path was left in the wake of the RIAA’s actions and nothing the RIAA did hindered the revolution Napster had begun. On its face, suing those who had been downloading music illegally made a lot of sense, as they were the ones who had actually committed a crime; however, the reality of it was grim and pointless. Brianna LaHara was a twelve-year-old honor student living with her family in a New York City housing project when the RIAA filed a lawsuit against her in 2003.122 Far from a criminal, LaHara had only downloaded music under a belief of right after her family paid almost thirty dollars for software that enabled the downloading.123 Without the economic power to fight legal battles, LaHara’s mother quickly settled the case by giving the RIAA two thousand dollars for the music her daughter had downloaded.124 Brianna, a true lover of music, felt bad for her illegal activity, saying, “I am sorry for what I have done. I love music and don’t want to hurt the artists I love.”125 Unfortunately for the recording companies, many others did not share Brianna’s sentiments, and the effectiveness of these suits as a deterrent was minimal at best. Studies conducted in 2004 illustrated that teenagers and children

116. See Wagman & Kopp, supra note 8, at 273. 117. A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 900-901 (N.D. Cal. 2000). 118. Wagman & Kopp, supra note 8, at 273-274. 119. Id. 120. Id. at 273 n.7. 121. A & M Records, 114 F. Supp. 2d at 900-901. 122. Joel Roberts, Downloading Girl Escapes Lawsuit, CBS NEWS (Aug. 8, 2003), http://www.cbsnews.com/news/downloading-girl-escapes-lawsuit/. 123. Id. 124. Id. 125. Id.

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who downloaded music were more afraid of getting a virus than any legal repercussions.126 The all-too-legitimate concern over viruses created a large market of individuals, like Brianna LaHara, who wanted a legal, virus-free way to acquire music cheaply. Fortunately, under the guidance of people like William Barr, legal websites began to appear as illegal websites were shutdown.127 The purpose of United States copyright law has always been to create incentives for both the creation of and the release of works to the public.128 The DMCA was no exception, creating a safe harbor for online media hosting websites like YouTube and the legal version of Napster.129 This provision protects YouTube and similar websites from monetary liability for infringing content uploaded by users, as long as a set of conditions are met.130 In other words, the DMCA promoted the facilitation of file sharing even if those files might be copyrighted. However, not to ignore the goal of creating incentives, the DMCA also created provisions for takedown notices to be sent to companies that hosted infringing material.131 With these provisions, companies like the RIAA could protect their material without filing multi-thousand dollar lawsuits against children and poor families. Of course, some companies still filed those lawsuits, the effectiveness of which has been discussed above, but around the same time these suits were being filed, online piracy took a hit due to a different type of protection. Legal online media, encouraged by the DMCA is the greatest hope in the fight against piracy. In April of 2003, shortly before the RIAA began its campaign against online piracy, the iTunes store came into existence.132 Suddenly a well-known, household name made it possible for any person to download the iTunes store for free and begin purchasing music more cheaply, making it easier than going to a store and buying CDs. Over the years, legal media websites have grown in both popularity and number, from the legal version of Napster to Hulu, Netflix, and Amazon.com.133 The products

126. Wagman & Kopp, supra note 8, at 273 n.7. 127. Roberts, supra note 122. William Barr was an attorney for Verizon Communications Inc., whom the RIAA had subpoenaed in order to file suits. Id. Barr spoke out in a Senate hearing against the RIAA for resorting to “a ‘campaign against 12-year-old girls’ rather than trying to help consumers turn to legal sources for songs online.” Id. 128. Wagman & Kopp, supra note 8, at 274. 129. 17 U.S.C. § 512 (2012). 130. Id. at § 512(b). 131. Id. at § 512(c)(3). 132. Press Release, Apple, Apple Launches the iTunes Music Store (Apr. 28, 2003), https://www.apple.com/pr/library/2003/04/28Apple-Launches-the-iTunes-Music-Store.html. 133. Information about these companies can be found at: Napster, http://www. napster.com (last visited Feb. 14, 2016), Hulu, http://www.hulu.com (last visited Feb. 14,

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themselves are cheaper for everyone, with iTunes songs costing an average of one dollar and Hulu being entirely free for basic service; however, copyright holders have continued to make money through ad revenue and royalties from file hosting companies. In their various forms, these legal websites represent exactly what the Internet can mean: cheaper products made available to a larger number of people more easily, all without ruining the incentives for those in the media business. Perhaps the best example of how technology can be used for the sake of creators is the story of South Park Studios. Matt Stone and Trey Parker, artists best known for South Park and The Book of Mormon, have always been strong advocates of online media.134 To that end, Matt Stone and Trey Parker hopped to the forefront of online media in 2007 when they signed a deal with Comedy Central to open South Park Studios, an online source allowing viewers to watch South Park’s entire catalogue for free.135 The deal was expected to bring Stone and Parker seventy-five million dollars in four years, in part through advertising attached to the free episodes.136 This was a great monetary bonus for creators who “have said they are in favor of free downloads of episodes because it helps more people watch the show.”137 Of course, the system is not perfect; a Google search for “watch TV online free” turns up dozens and dozens of useful, but pirated, links for almost any show a user could want (including South Park). The Internet has created a world where those who do not want to pay even a dollar for a song or T.V. show do not have to, and probably never will have to. Today, fifteen years after the DMCA and ten years after the RIAA began its campaign, some companies and government organizations are still fighting the battle against online piracy. In doing so, these fighters in the legal trenches are teaching the world a valuable lesson: “you can’t sue the genie back in the bottle.”138 Like a true hydra, one illegal website being shut down just leads to three more being created. When the government shut down Megavideo, online

2016), Netflix, http://www.netflix.com (last visited Feb. 14, 2016), and Amazon, http://www.amazon.com (last visited Feb. 14, 2016) respectively. 134. One example of their advocacy can be seen in the South Park satire of the 2008 writers strike. Trey Parker, Canada on Strike, South Park (Apr. 2, 2008), http://www.south parkstudios.com/full-episodes/s12e04-canada-on-strike. 135. Eric Eldon, South Park creators get web revenue cut. Sweet., VENTURE BEAT (Aug. 27, 2007), http://venturebeat.com/2007/08/27/south-park-creators-get-web-revenuecut-sweet/. 136. Id. 137. Id. 138. Henn, supra note 105.

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media revenue temporarily rose as users were pushed into legal sources.139 Still, despite the shutdown and the legal websites available, illegal file sharing websites have grown more popular globally since 2011.140 These websites have grown to be so popular that legal websites, not wanting to trail four years behind, are monitoring illegal media sites to track trends.141 For instance, Netflix has monitored illegal streaming and downloading in order to determine what they should buy for their customers.142 In this way, legal websites have the potential to become another head on the Internet hydra, fulfilling the goals of copyright law and the DMCA. Casual acceptance of and competition with blatant criminals is a strange concept, but history has shown us that it may be the only real hope for copyright holders.143 V. PERSUASION, THE KEY TO LEGAL CONTROL OF 3D PRINTING Just like video media companies learned from the shortcomings and mistakes of the recording industry, manufacturing companies can learn how to handle the 3D printing revolution; the parallels are astounding. In a recent interview with NPR’s All Tech Considered, Public Knowledge144 attorney Michael Weinberg said [t]he technology is coming whether we like it or not . . . And so, as a CEO of one of these companies, you can spend a lot of time and money trying to sue it out of existence—and sue the genie back into the bottle— or you can spend that same time and money and apply it toward finding a way to use the technology to your advantage.145 Although Weinberg was talking about 3D printing, his advice holds the same reasoning that led Matt Stone and Trey Parker to sign up for South Park Studios.146 Weinberg went even further, suggesting that Moulinsart, which sent Thingiverse a takedown notice regarding their Tintin Rocket, had made a huge

139. Ben Fritz, Movie Sales Increased With Shutdown of Piracy Sites, THE WALL STREET JOURNAL (Mar. 7, 2013), http://online.wsj.com/news/articles/SB10001424127887324 034804578344551047272218. 140. Risen, supra note 3. 141. Id. 142. Id. 143. Id. 144. Public Knowledge is a group that advocates for open internet and public access to knowledge. See generally PUBLIC KNOWLEDGE, http://publicknowledge.org/about (last visited Feb. 11, 2016). 145. Henn, supra note 105. 146. Eldon, supra note 135.

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mistake.147 Instead, Weinberg proposed that releasing their own design of the rocket would be more advantageous, as he noted that “[p]eople printing out copies of Tintin’s rocket were the company’s mega-fans, he says. Instead of attacking them, Weinberg adds, the company would have been better off selling digital designs to print out Tintin himself.”148 Despite the DMCA takedown notice that has temporarily prohibited the downloading of some files, a Thingiverse search for “Tintin rocket” still contains three useful designs that are identical to, but less blatantly named than, the Tintin rocket.149 Even more problematic for Moulinsart, the first page of a Google search for “3d printed Tintin rocket” provides a CAD file for an exact replica of the red and white figurine.150 With piracy so easy to do and hard to control, it is no wonder that “[c]opyrights groups are shouting anarchy, trademark holders are squirming, and patent holders are giving the death glare.”151 In response, a number of legal approaches have been suggested to quell the growing tide.152 Each suggestion is plausible, and together they may cover the range of IP problems that 3D printing will create; however, each solution also carries a number of problems, ranging from legal confusion to impracticability. A. The Good and Bad of Changing the Law In a system that exists to promote innovation and protect consumers, changing the law to restrict technological advancement carries a great risk.153 Any restriction upon technological advancement and development will limit use of the technology and the ability for others to be inspired. Especially in a community that currently exists for people like Leon McCarthy and his father to be able to use and adjust another man’s prosthetic hand, over-protection could mean the creation of a black market.154 Any change to the law has to balance its benefit to innovation and consumer protection against the risk of stifling a technology that brings far more than music into low-income households.

147. Henn, supra note 105. 148. Id. 149. These designs are intended as Christmas ornaments. See generally THINGIVERSE, supra note 65. 150. This CAD file can be downloaded from YouMagine. See generally YOUMAGINE, https://www.youmagine.com/designs/tin-tin-rocket-dual (last visited Feb. 14, 2016). 151. Roy, supra note 6. 152. See Rideout, supra note 4, at 173-76. 153. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 427 (2007). 154. Infra Part IV.

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The expansion of copyright protection is the simplest suggestion for some manufacturers to pursue.155 Companies not wanting to try to track down individual infringers could go after companies instead, thus stopping the infringement at its largest source. Copyright law could already protect against websites that distribute CAD files for copyrighted works like the Tintin rocket.156 The trouble with this method is that the protection is disputable, and it only applies to art and ornamental objects.157 The most straightforward way to expand copyright law to protect IP holders would be to eliminate 17 U.S.C. § 512 and make hosting websites directly liable for any illegal content that they host. 158 This option, however, could greatly hinder the willingness of honest companies like Thingiverse or YouTube to conduct business.159 Moreover, this amendment to Title 17 may not extend protection to objects that are not traditionally copyrighted unless the government allows copyrights of CAD files as well.160 If such protection existed, companies would have to submit CAD files as part of their design, much like drawings are commonly submitted with design patents. Even so, amending Title 17 would still fail to prevent home creation and use of CAD files, both of which can be done easily with 3D scanners.161 This failure speaks to the real problem with removing Section 512; companies trying to do the right thing will struggle, but the activity of illegal companies will be no more illegal or easier to stop. It would be much better for the courts to clarify that the DMCA provisions apply to CAD files as graphic representations. By protecting object copyrights in the same way they are already protected, the legal world could avoid re-litigating the digital millennium. However, even simple clarification by the courts could set a bad precedent for other branches of IP law. Patent holders have the greatest reasons to fear the 3D printing world. Unlike copyright law, there is no regime under which the distribution of CAD files for patented objects could be considered illegal. This is true for both design and utility patents because both protections require that an infringer “makes, uses, offers to sell, or sells any patented invention.”162 Unless a patent holder has

155. See Rideout, supra note 4, at 166-68. 156. Id. 157. Id. 158. Id. at 173-74. 159. Id. at 173. 160. 17 U.S.C. §§ 101-02 (2012). 161. 3D scanners allow a user to quickly and simply make CAD files of an object. These scanners are becoming so popular that some companies have started building programs to allow an individual to use a smart phone as a 3D scanner. Jesse Emspak, Use Your Smartphone as a 3-D Scanner, DISCOVERY NEWS (Feb. 24, 2013), http://news.discovery.com/tech/ apps/smartphone-3d-scanner-130224.htm. 162. 35 U.S.C. § 271(a) (2012).

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created and patented a specific CAD file, the file would not be considered an invention.163 Until submitted to a printer, CAD files are in essence a 3dimensional drawing of an object. In this state, a CAD file cannot be considered a “process, machine, manufacture, or composition of matter,”164 nor can it be called an “original and ornamental design for an article of manufacture,”165 although the CAD file may represent one. If a patent claims a physical product or a design applied to a physical product, that physical product must be what is made or sold for infringement to take place.166 Consequently, while a person who uses a CAD file to print an object is clearly infringing on a patent, the website that hosted the CAD file and the CAD file’s creator are not.167 If, for instance, Thingiverse had a downloadable CAD file for a patented woodworking tool, no one could argue that Thingiverse was making, using, or selling a patented object.168 Similarly, induced and contributory infringement claims under U.S.C. § 271(b)-(c) would fail because Thingiverse neither influences a downloader’s use of the file nor provides a component of the final object.169 To avoid the task of suing numerous individuals, some have suggested either allowing “sui generis copyright-like protection” for utilitarian objects170 or allowing CAD files to be patented.171 The former poses quite a few problems. First, it opens up the possibility of removing novelty from the patent system, as companies try to protect all products; second, it removes the limitations on patent duration in conformity with copyright principles.172 These possibilities are especially problematic because this sort of expanded protection might “stifle, rather than promote, the progress of useful arts.”173 Allowing CAD files themselves to be patented would drastically reduce the risk of “stifling” and would protect against similar CAD files being made, but it is not without problems.174Again, this expansion of the law would mostly succeed in preventing legal hosting sites from providing a legitimate service. 163. Daniel Harris Brean, Asserting Patents to Combat Infringement via 3D Printing: It’s No “Use”, 23 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 771, 787-88 (2013). 164. 35 U.S.C. § 101. 165. Id. § 171. 166. See Brean, supra note 163, at 790. 167. Id. at 789-90. 168. Id. 169. THINGIVERSE, supra note 65. 170. Rideout, supra note 4, at 174-76. 171. See generally Brean, supra note 163. 172. Rideout, supra note 4, at 175. 173. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 427 (2007). 174. See 35 U.S.C. § 101 (2012). Patent law in protecting function protects against objects that are functionally the same and design patents protect objects that are “substantially similar.” See Gorham Co. v. White, 81 U.S. (14 Wall.) 511 (1871).

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Individuals will still be able to scan and print their own patented objects, and they will be even less likely to be caught if they cannot be tracked through a legitimate hosting site. If IP owners wish to pursue any of these changes in the law, the hardest question that will have to be answered is the rationale behind the government changing the law. What good will be accomplished by changing the law? It is unquestionable that a private citizen who prints out a pair of Ray-Bans has probably violated both trademark law and patent law.175 By the same token, a man who prints a hobbit statue for his son has absolutely violated copyright law.176 The real question is whether they have harmed anyone. More importantly, have they harmed anyone so greatly that new laws should be passed? If private, infringing printing becomes egregious, IP holders could go after those responsible under the current law.177 Expansion of the law will only help to fight the little guy, but it will hurt by stifling not only the advancement of 3D printing technology, but also the advancement of the millions of lives who could be changed and saved by it. Assuming patents and copyrights exist to foster innovation and protect industries, as courts have often held,178 the argument becomes even more difficult. Individuals who are printing for their own use do not hinder innovation in the same way that competing companies do.179 IP holders who lose money during the 3D revolution are not losing profits to unfair competition; rather, they are losing profits to a shrinking manufacturing market.180 As a result, the desire to innovate remains substantially the same.181 Those who are involved in trademark and “trade dress”182 have even less of a claim to make, since trademark finds its purpose in ensuring product quality and preventing consumer confusion.183 No individual printer is confused about the product he has; furthermore, as more companies are using 3D printers,184 the claim that 3D printed versions of products are of poorer quality is losing support. Even if the

175. See 15 U.S.C. § 1114 (2012); 35 U.S.C. § 271. 176. See 17 U.S.C. § 501 (2012). 177. Rideout, supra note 4, at 162. 178. See e.g., Gorham, 81 U.S. (14 Wall.) at 531. 179. See id. at 511. 180. Henn, supra note 105. 181. See id. 182. 74 AM. JUR. 2D Trademarks and Tradenames § 36 (2016) (“A product’s trade dress is its overall image and appearance, and may include features such as size, shape, color or color combinations, texture, graphics, and even particular sales techniques.”). 183. Trade Dress, supra note 7, at 42. 184. See Shan Li, As cost goes down, 3D printers begin to make an impression, PHYS ORG (August 1, 2013), http://phys.org/news/2013-08-d-printers.html.

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IP community can overcome these hurdles and assert a reason to expand the law, the ineffectiveness of such an expansion is still a good reason not to change existing regimes. A Google search for “Streisand home” or “watch Harry Potter online free” illustrates just how effective expanding the laws would be. B. A Simpler Alternative Despite the loopholes, intricacies, shortcomings, and complications, IP protection is possible. Especially in the realm of designs, protection could even be easy. All of the above-suggested methods for protecting IP rights have an important similarity. Each seeks a way to continue protecting what IP holders admit cannot be protected.185 Rather than build the DMPA186 or remove 17 U.S.C. § 512, the copyright law that made YouTube possible,187 why not take a lesson from history188 and give up? The best approach may be to stop trying to sue infringers, and instead take away the incentives to infringe by letting companies make, release, and profit off the distribution of CAD files for their products. As has already been proven by the success of the iTunes store, people would be very willing to buy a five dollar CAD file from Ray-Ban rather than risk viruses downloading the same glasses for free from Cérna Szabolcs.189 As Danie Roy put it: This actually is a great opportunity. The geeks might as well be screaming at you “hey, this is a potential market, shut up and take our money!” The thing about geeks, especially early adopters, is that they are really proud of their new technology. In some cases, they’re willing to pay a little extra to showcase it.190 Although a company would not be guaranteed protection after releasing their own CAD files or rights, such an action would prevent a significant amount of infringement, and it would carry other benefits as well. “An ounce of prevention is worth a pound of cure here.”191 Companies will likely lose profits in this system by letting their products go for lower prices, but much of that can be made up by lower overhead. For instance, making CAD files is inherently cheaper 185. Infra, Section V.A. 186. Digital Millennium Patent Act. This is a play on the Digital Millennium Copyright Act (DMCA). At this time there is no patent based equivalent to the DMCA, but its creation has been proposed. See infra Section V.A.. 187. Rideout, supra note 4, at 173. 188. Infra Part IV. 189. Ray Ban, supra note 5. 190. Roy, supra note 6. 191. Id.

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than making manufactured products; there could be a reduction in piracy, as fear of viruses is a significant concern for most individuals using illegal websites; 192 there may also be a significant reduction in litigation activity.193 The main difficulty companies will face will be the complete lack of an internal structure to embrace this new technology. Even that, however, should not stop them. “Make an online market,” says Danie Roy, “If you don’t move to profit off of your hard work in a market that wants it, someone else will try to.”194 Fortunately, there are thousands of ways to make an online market, and the business models have already been built, tested, and made public. Hulu, Netflix, iTunes, Amazon.com, CBS, and South Park Studios all profit to some extent from online media, and each one structures its marketplace differently. South Park Studios provides free access to its entire media content, but it profits from ad revenue and controls when new material is released.195 CBS does the same thing, but with limited content.196 Netflix offers unlimited content for a monthly subscription free.197 Hulu has a hybrid approach, restricting some content to those who purchase subscriptions and providing some content free with advertising.198 Amazon.com sells media content on a permanent basis or allows a user to rent the content.199 iTunes does the same thing, but it requires all media to be bought under a traceable account.200 Although these companies are in the media market, the same ideas and marketplaces could be replicated for CAD files. Companies can “watermark the files so that they are more difficult (or impossible, if you can swing it) to copy, and sell them online.”201 Encryption has already been experimented with for electronic media, and CAD files are simply a different form of online file. If companies embrace the 3D marketplace, incentives for innovation will be secured, and companies can remain relevant in the changing world. As the marketplace for CAD files and infinitely customized products grows, the most 192. Wagman & Kopp, supra note 8, at 273 n.7, 276. 193. After all, when people choose not to sue, attorneys have to find more productive ways to make money. C.f. Shekhar Kumar, Virtual Venues: Improving Online Dispute Resolution as an Alternative to Cost Intensive Litigation, 27 J. MARSHALL J. COMPUTER & INFO. L. 81 (2009) (examining the cost effectiveness of online dispute resolution in comparison to litigation). 194. Roy, supra note 6. 195. See SOUTH PARK, http://www.southpark.cc.com (last visited Feb. 19, 2016). 196. See CBS, http://www.cbs.com/shows/ (last visited Feb. 19, 2016). 197. See NETFLIX, http://www.netflix.com (last visited Feb. 19, 2016). 198. See HULU, http://www.hulu.com/welcome (last visited Feb. 19, 2016). 199. See AMAZON VIDEO, http://www.amazon.com/Instant-Video/b?node=285877 8011 (last visited Feb. 19, 2016). 200. See ITUNES, http://www.apple.com/itunes/ (last visited Feb. 19, 2016). 201. Roy, supra note 6.

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profitable companies will be those that market the best designs from the best design staff.202 Competition among innovators will be more heated than ever as more complex and customer-specific designs are possible. This means better products and more high-level jobs will be available to those who can help create designs.203 Adding to the need for corporate innovation will be the large community of engineers and designers who are willing to give away quality products for free, like Owen and Von.204 In many ways, forcing companies to give up on traditional patent protections could be the fastest means of ushering in the innovative era dreamt of by IP and patent law. For many companies with the mindset of the 1990’s RIAA, building an entirely new market structure will be out of the question. Unfortunately, the day is approaching when that is no longer a choice. No, the market will not always stay the way you like it. Occasionally, however, it will tell you exactly where it’s going and how to exploit it. Some will always steal, but there’s very little you can do about that. Adjusting what you offer to capture those who are willing to pay, however, is something you CAN do. . . so do it. Minimal effort for high profit is a great business strategy, after all.205 A changing market does not have to be a bad thing. At least here the coming change has been kind enough to proclaim its presence loudly; we know what it is and we know how to benefit from it. More importantly, IP holders who open up their work to the 3D marketplace have the ability to change the world in a very real way. As we have seen before, clinging to IP rights leads to criminalizing and punishing people who are innocent in both intent and in the common eye. Some infringers will be rich adults, but others will be poor children in need of a toothbrush. Letting go of property rights will prevent both from infringing and, more importantly, bring the two to an even footing. Whether we admit it or not, brands and quality products largely determine how people are viewed and valued.206 If a Rolex, a Louis Vuitton bag, a car, and a robotic prosthetic can all be printed at home, the correlation between having money and having a significantly better life will disappear. As technology progresses, and companies promote an affordable and open 3D marketplace, medicine, a house, or even a heart could be added to those

202. 203. 204. 205. 206.

Revolution, supra note 44. Id. Winter, supra note 33. Roy, supra note 6. See generally Sivanathan & Pettit, supra note 68.

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life-changing possessions.207 In the face of such potential, the argument to expand protection against the 3D printing community is still legally valid, but it is much harder to make. Giving up traditional legal concepts, on the other hand, can ensure stronger protection, higher quality products, more innovation, and a better world for humanity. IV. FINAL WORDS No matter how difficult lowering prices and giving away products may be for IP holders to embrace, the time to do it is now. The third industrial revolution is here,208 and fighting it will only succeed in criminalizing innocent individuals and angering a powerful community of self-proclaimed bully-fighters.209 Those same criminals and fighters, however, are ready and waiting for a company to give them what they want, and they constitute a very large market for the 3D printing community.210 No expansion of IP law will protect products in the long run; it will only leave IP holders scrambling to catch up.211 Current law, however, can and will protect IP holders from egregious infringers, such as those who try to profit through mass manufacturing.212 If a copyright is taken, the DMCA will protect companies;213 if a patent is used, a suit can be brought under 35 U.S.C.;214 and the same applies to design patents, trademarks, or trade dress.215 Expanding these laws to attack file-sharing organizations will only upset the community, hinder growth, and prevent the technology from getting to those who could really use it. The more severely that companies fight, the more difficult it will be to protect their products. Ultimately, the next victim of the Streisand effect might have a CAD file for designer earrings translated into a colorful gif.216 Given the success 207. Fountain, supra note 42; Khoshnevis, supra note 53; Robin Andrews, Researchers Can Now 3D Print A Human Heart Using Biological Material, I FUCKING LOVE SCIENCE (Oct. 26, 2015), http://www.iflscience.com/health-and-medicine/human-heart-can-now-be-3dprinted-using-biological-material. 208. Revolution, supra note 44. 209. Greenberg, supra note 89. 210. See generally Roy, supra note 6. 211. Id. 212. Rideout, supra note 4, at 168. 213. Id. 214. 35 U.S.C. § 271 (2012). 215. Id.; 15 U.S.C. § 1114 (2012). 216. See Brady Haran, Illegal Numbers- Numberphile, YOUTUBE (May 13, 2013), https://www.youtube.com/watch?v=wo19Y4tw0l8 (Binary codes like those contained in a CAD file can easily be converted into a hexadecimal number, which has an accompanying sequence of colors.).

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of legal media sites, it is probably best for manufacturing companies to avoid such a risk. Despite the risks that 3D printers create for IP holders, they are not doomsday devices.217 Rather, they are manufacturing tools that can bring quality products to individuals who may currently struggle to afford food.218 A 3D printer could be a toothbrush and prosthetic leg in the hands of an African child, a liver transplant for a Hepatitis patient, or a home for a family that lost everything to a flood. The importance of these possibilities cannot be forgotten. Nor should it be forgotten that, while new technology always disrupts the current market,219 those who stand to lose do not have to fight against it, especially when that new technology has noble purposes. As Fred Rogers noted when he spoke in favor of technology that allowed his own work to be copied in an illegal manner: Some public stations, as well as commercial stations, program the ‘Neighborhood’ at hours when some children cannot use it. I think that it’s a real service to families to be able to record such programs and show them at appropriate times. I have always felt that with the advent of all of this new technology that allows people to tape the ‘Neighborhood’ off-the-air, and I’m speaking for the ‘Neighborhood’ because that’s what I produce, that they then become much more active in the programming of their family’s television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been “You are an important person just the way you are. You can make healthy decisions.” Maybe I’m going on too long, but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important.220 Unlike the Betamax technology that Mr. Rogers was discussing, 3D printing does not just bring families closer together; the effects are much wider. In a world where wealth defines quality of life, 3D printing is a way for low-income families to survive and thrive.221 Even though IP holders have every right to protect the fruits of their labor, the question of whether they should is another matter. The answer to that question is to leave the laws alone, embrace the 3D marketplace, and help those in need manufacture a better life.

217. Rather, as discussed in Part III, 3D printers have the potential to do a lot of good for the world. 218. See, e.g., Winter, supra note 33. 219. Revolution, supra note 44. 220. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 445 n.27 (1984) (quoting Mr. Rogers of Mr. Rogers’ Neighborhood). 221. Infra Section III.A.