Posted by: Sam Knecht
April 20, 2015
3D printing is an emerging technology that is being used to create a host of products such as prototypes, phone cases, models, artwork, shoes, and even firearms – just to name a few. As 3D printing becomes more widespread and both blueprints for and items manufactured by these printers are shared and sold in cyberspace, the potential for infringement of intellectual property rights grows exponentially. But who can be held liable?
Stereolithography, commonly known as 3D printing, was invented by Chuck Hull in 1986 and was primarily used to create industrial prototypes. Technological advancements and a surge in popularity have seen 3D printers become much more efficient, cheaper to own, and easier to use. Many consumers now own 3D printers in their home or purchase items manufactured by them online, with those numbers expected to rise in the future. As 3D printing gains popularity, there is a growing concern that this technology will become a hotbed for infringement of intellectual property, with everything from artwork to inventions being illegally reproduced. But who can be held liable? Certainly, someone who recreates a protected work without permission and sells it online would be infringing. But what if that person is instead sharing instructions that others can use to print that protected work? And what about the website hosting those instructions?
Printers use additive or subtractive manufacturing processes to create objects by either adding material from scratch or by removing it from a block with a laser to create the desired product. What the printer manufactures is determined by a digital blueprint, a set of instructions that can be read by other printers in order to make the same item. Websites such as Thingiverse host user-generated blueprints for others to download so they can make the relevant products with their own printers. While the advancement of this technology is making it easier for society to share ideas and print the same things, it also opens the door to wide scale infringement of intellectual property. In a scenario where one person downloads a blueprint that someone else posted online, and prints an unauthorized copy of protected intellectual property, there may be multiple people infringing.
Under 17 U.S. Code § 501, anyone who makes an unauthorized copy of a copyrighted work is guilty of infringement. Thus, a person who prints out a replica of a copyrighted object could be held liable. Bridgeman v. Corel holds that scanning a copyrighted object does not create a new copyright. In terms of 3D printing, this means anyone posting a blueprint of a copyrighted object would also need authorization from the copyright holder. Anyone who subsequently downloads a copy of the design would also be liable for infringement.
The analysis may change when the copyrighted work is a design. 17 U.S. Code § 101 states that a useful article will be eligible for copyright protection only to the extent that it incorporates creative elements that exist separately from the utilitarian aspects. But there is also case law concerning architectural blueprints that suggests courts may not hold the physical act of 3D printing using a copyrighted design to be infringement. Courts have held that constructing a building using copyrighted architectural designs is not infringement. This reasoning may translate to 3D printing, though at this point it is unclear. In contrast, if any person posts a digital copy of the copyrighted design online or downloads a copy, there would still be infringement for that action.
A website hosting third party content may be protected under the Digital Millennium Copyright Act. As long as they have a posted policy to remove infringing content if the copyright holder requests it, and complies with such requests, the site will have a solid safe harbor defense. However, it’s interesting to note that this leaves it up to copyright holders to find infringing content and request its removal. Unlike video and audio recordings, which media companies use bots to find, it may prove more difficult for copyright holders to identify infringement with 3D printing.
In terms of patents, a person who makes a patented product without authority will be liable for infringement under 35 U.S.C. § 271. So, anyone who prints a patented piece of intellectual property could be held liable (though, it is unlikely to result in a lawsuit unless that item is used commercially). It’s an interesting question whether the person posting the blueprint online would be liable as a contributory infringer because all patent applications are public knowledge.
The relevant statute, 35 U.S.C. § 271(c), reads:
“Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or an apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.”
It would be hard to argue that a blueprint is a “component” or fits any of the other terms listed, especially when the patent application is already public knowledge (which is required to “enable a person having ordinary skill in the art to make and use the technology without undue experimentation.”). Furthermore, in Ricoh v. Quanta, the Supreme Court held that software by itself isn’t a “component” of a patent for the purposes of 271(a) when the software isn’t performing a patented method, analogizing software to a set of instructions. While this case discussed a different section of the statute, it is likely that a court will apply the same reasoning to blueprints for 3D printers. Thus, it is unlikely for a court to find the person posting the blueprint online liable as a contributory infringer.
However, there would be a good case for inducement under 35 U.S.C. § 271(b). While the statute doesn’t specifically mention selling instructions, courts have been willing to find inducement in similar cases outside the realm of 3D printing. By making instructions available online for anyone to print the patented product, the blueprint poster would arguably know their actions are likely to lead to infringement. The case for inducement is strengthened by the fact that instructions for a 3D printer are not the same as those filed with the United States Patent and Trademark Office and thus would not already be in the public realm.
Currently, there is no DMCA-like provision for websites hosting patented material. Like a person posting a blueprint for a patented product online, it may be unlikely that the website hosting the design would found liable for contributory infringement. But the site might still be on the hook for inducement. While a website is less likely to face litigation if it responds to requests and removes designs for patented material, it may still be held liable for inducement. Since there is no safe harbor provision, websites that want to avoid potential infringement cases will have to be very diligent about removing any patented material themselves. Hosting blueprints for patented products online, even if posted by third parties, could be seen as proof of intent by a court. The surge in 3D printing means that more and more blueprints for patented products will be hosted online in the future. This may call for new laws in the patent arena that are similar to the safe harbor provisions, allowing websites to host emerging content such as 3D printer blueprints without fear of being held liable for patent infringement due to the actions of third parties.