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The technology site ars technica recently posted a feature story by Peter Hanna asking if 3D printing is, in the words of the headline, “The next Napster?” While it is encouraging to see more people wrestling with the question of how intellectual property law and policy relate to the emerging technology of 3D printing, the article is full of some unwarranted assumptions that could skew the debate going forward.
The article perfectly illustrates the worldview of large intellectual property owners that there is a way to attach an intellectual property right to all things, and that any modes of creation that do not currently require permission will soon and inevitably be brought back into the fold. What Hanna views as a “regulatory vacuum” filled with “legal uncertainty” is, in fact, an area with a surprising amount of legal clarity. It just is not the kind of clarity that would facilitate an intellectual property land grab into the physical world.
For the past fifteen years, discussions about digital innovation and expression have primarily been framed in terms of copyright policy. In many ways, this is a fluke of history. The types of things that are easiest to distribute online – articles, songs, games, and movies – also happen to be the types of things that are protected by copyright law.
Because copyright law attaches to works at the moment of creation, and most works online are protected by copyright law, the past fifteen years of discussion and debate has assumed that someone owned rights in everything involved. We might argue about fair use exceptions, or safe harbors for third parties, but those are all reasons that a user might not need permission from a rightsholder. With the exception of works in the public domain, all of the works were assumed to have a rightsholder.
This history, and the assumptions and lenses that it has helped to create, actually presents a challenge when trying to begin thinking about the impact of 3D printing. Unlike articles or songs or games or movies, the vast majority of physical objects are not born swaddled in some sort of intellectual property right. With most physical objects there is no need to look for doctrines that make it ok to use the objects without the permission of a rightsholder because there is no rightsholder.
If you step back from the world of online copyright, this makes intuitive sense. Look around you right now. In the vast majority of cases, no one owns the “rights” to the coffee cup on your desk, or even your desk. Along the same lines, you do not need to license a design before you make a door, or a coat rack, or a pencil sharpener. Kids do not pay a fee before they build a bird house or popsicle stick picture frame for their parents. There are some physical objects that are protected by copyright, or patent, or trademark, but they are the exception to the rule.
This is not a fluke of history, or a loophole in intellectual property law, or some sort of problem that needs to be fixed to reign in a digital wild west. If this seems counter-intuitive to you, it may be because you have been spending too much time thinking about digital intellectual property infringement. Imagine if you needed permission before building a chair or shelving out of wood. Your freedom to create and reproduce physical objects does not disappear just because you are using a 3D printer instead of a hammer and nails.
When we discuss the policy implications of 3D printing, we mostly focus on what does not need to happen in order to foster the growth of this technology. We do not need to create new intellectual property rights. We do not need to create new causes of action for rightsholders. We do not need to impose mandates on innovators designed to cede control to people who see 3D printing as a threat.
There is no regulatory vacuum surrounding 3D printing. This is not a free-for-all that is too good to last. Just because someone would prefer that you pay a licensing fee before you created a teapot or a chair in your 3D printer does not mean they have a legal right to that license.
Expect more of these types of articles in the future. Be skeptical of them. Viewing 3D printing as an intellectual property problem that needs to be “fixed” is a sure way to, well, screw it up.