To operate effectively, the law must work with, not against the nature of the industry in which it governs. The following section addresses four critical aspects of the 3D printing industry that are necessary to understand its nature: its role as a public good, innovation as the motivation of its leaders, the social norms of its participants, and the potential challenges to enforcement.
A. Public Good
A public good is defined by two properties, non-excludability and non-rivalrous consumption.[1] Non-excludability refers to the difficulty in excluding others from consuming the resource, while non-rivalrous means that the use of the resource by a consumer does not deplete that resource available for other consumers.[2] One aspect of the 3D printing industry, specifically the computer-aided design file, exhibits both of these properties.
The information contained on CAD files is both non-excludable and non-rivalrous.
The use of the designs by one person does not diminish the access or quality for others. Once the files are made public, it is difficult to prevent others from downloading the file. A design file posted on the Internet leaves the control of the poster with no effective way of removing the information. This inability to exclude a third party from downloading and copying (the original or a copy of the original) makes 3D printing designs, by definition, non-excludable. The CAD files are non-rivalrous because they are digital. Once a design file is posted to a web server, it can be downloaded and consumed by many users simultaneously. In addition, the marginal cost of adding new consumers is essentially zero. To show the contrast between rivalrous and non-rivalrous works we only need to look at digital works verse analog works. Analog objects, such as books, are not conducive for allowing multiple people to read the same copy at the same time.[3] The non-rivalrous nature of digital goods, like a CAD file, is a major reason why the costs of producing 3D printed objects are relatively low. The design file’s role as a public good is very much a part of the 3D printing industry’s nature.
There exists technology called digital rights management, or DRM, that can change the public good aspects of the CAD files by making them exclusive. Although imperfect, future patent law should embrace and protect these private mechanisms that patent owners might utilize to protect their property right. In Part IV, I will address how patent law should protect the patent owners DRM and how this might benefit the system as a whole.
B. Norms of the online community[4]
The 3D printing industry is closely connected with the online community. While the online community presents a great social benefit by promoting the sharing of information, it also presents serious legal concerns. One of those concerns revolves around the norms of the online community. Norms play an important role in regulating social behavior.[5] Norms play an especially important role in industries that deal with millions of transactions and where the probability of escaping legal and social condemnation is high. The norms established by the community often affect more than just the current state of affairs.
Norms can have tremendous influences on how private parties interact and how legal rules function.[6] In an online community, people interact digitally, communicating enormous amount of information to millions of people in seconds over the internet. They act as an “extra-legal” mechanism in regulating individuals and behaviors.[7] Unfortunately, without a realistic ability to oversee and enforce traditional norms, there are some people who operate outside the person to person norms and would exploit the enforcement loophole. These are typically Pirate Bay and Megaupload users who blatantly pirate movies, music, and other protected works. Once established these negative behaviors can be very difficult to change.
It is important in structuring a legal framework to not allow the norms of the few to ruin the operation of the system. By accounting for the most serious offenders, the sensible norms of the many can act as an extra-legal check, allowing majority of users to operate without an imposing legal framework.
C. Innovation
Innovation is a complex social phenomenon.[8] In the 3D marketplace, the motivation to innovate is linked in many ways to the norms of the online community. The motivation in some industries may be different than others, but in the 3D printer and online community there is a strong non-financial motivations. There exists a strong parallel between creating and sharing 3D designs and with user generated content in general. The motivations for content creation can be financial, reputation, social, or just for plain old fun.[9] The traditional justification for granting a patent (the exclusive right to exclude) has focused primarily on the financial aspect with good reason. By providing exclusive rights, patents ensure that inventors recoup the investment of their labor and investment. Without protection, inventors would be unable to recoup their investment because a competitor might be able to copy the invention with little cost undercutting the original inventor. Patent law seeks the level of protection that balances the trade-off between the benefit of incentives and the cost of limiting access so as to produce the greatest net incentives to innovate for society.[10] But without accounting for other inventive motivations in new industries, the traditional justifications might struggle to understand how patent laws will operate in this new realm.
These non-financial motivations also include inventing norms. Inventing norms are “social attitudes of approval for successful inventions.” Therefore people become inventors seeking to get respect and admiration from others, as well as personal satisfaction. Inventors are viewed in high esteem by society, and the desire to be recognized for one's work is great. The internet provides the perfect medium to share content with others and get the feedback of social approval. Talking about the social norms in the abstract is helpful in framing the issue, but concrete examples of social norms playing a significant role in IP law breaking down provide a basis for establishing laws to deal with the very real problems.
As the number of people in a network grows, the community has more contributors and users. The system as a whole works better. Both of these factors leads to innovation occurring more rapidly and more frequently than if the social and inventing norms weren’t present.
Innovation in the 3D printing industry happens quickly. The economies of scale that created high barriers to entry in some businesses (specifically manufacturing, prototyping, and consumer goods) are torn down.[11] 3D printing allows individuals, crowd sourced, or even small business to compete in industries that were previously dominated by mass production.[12] 3D printing will result in faster speed to market and lower cost in testing before stepping up production.[13] “The cycle of faster design, prototyping, production, market launch, failure, learn, and start over is vital to technology driven economics. 3D printing enhances this cycle.”[14]
Today, innovation is hindered by unclear legal rules and the possibility of incurring high litigation costs. “The rate at which they evolve will turn on in part on whether 3D printing is saddled with restrictive laws.”[15] Future patent law should not act as a substantial hindrance to innovation, but should try and strike the right balance between incentivizing innovation through the granting of patent rights and restrictions imposed on the society from that grant.
D. Enforcement
In exchange of a patent right, the inventor must disclose the invention in the claims in a manner so that one skilled in the art must be enabled to make and use it.[16] Granted patent applications are published and available at the PTO. With this enablement requirement and the applications availability, one might think that patent infringement occurs at a very high rate.[17] The threat of an infringement lawsuit discourages some, but another one of the forces that hold back the infringers is scale.[18] Although the invention may be enabled, the potential infringer needs to comprehend the technology in the application. He also needs to manufacture the infringing product on a scale that would be worth his time, expense, and risk that he is taking. 3D printing diminishes the costs to the potential infringer and the likelihood of being discovered.
This places the patent owner in a precarious situation. Although there are legal protections against infringement, detecting and stopping it on a large scale is a serious concern to patent owners and the system as a whole. The enforcement problem resulting from the 3D printing industry characteristics are similar to the problems that faced copyright owner (and still do). In order to use the Recording Industry Association of America (RIAA) campaign against copyright infringement as a guide to dealing with patent infringement, there is an underlying assumption that must hold true; that the industries and consumers are similar enough.[19] I think that this assumption holds true for several reasons. First, people who are part of the user generated content generation continue to share music illegally. They follow the same norms of the online community. Second, the ability to transfer files is basically the same. MP3 files and CAD files can easily be stored, shared, and retrieved over the Internet over multiple networks.[20] There exists dedicated websites with large traffic that facilitate file sharing in a global community. 3D printing will face problems that are similar to what we see in copyrights. An understanding of how copyright owners dealt with their enforcement problems can guide and inform the current 3D enforcement problem.
The Recording Industry Association of America (RIAA) faced piracy and illegal copying on a massive scale since the inception of peer-to-peer software such as Napster.[21] The RIAA faced declining sales and destruction of their business models.[22] The RIAA brought lawsuit against Napster which was found liable for contributory copyright infringement.[23] However, this did not have the effect that the RIAA was hoping.[24] The consumers just moved to other peer-to-peer sharing networks instead of stopping their activity.[25] Since then, the Digital Millennium Copyright Act (DMCA) was passed to provide safe harbors for internet service providers (ISPs) in exchange for their compliance with a detailed take down and notice procedure designed in an effort to deal with Internet copyright infringement disputes.[26] Although copyright infringement continues to occur on a massive scale, the DMCA lets YouTube and other websites to operate and doesn’t act as a substantial hindrance to the average user.
Although there are similarities between the industries, the lack of possible legal solutions for 3D printing is even more worrisome. Patent infringement is more difficult to detect then copyright infringement, which often takes the form of verbatim copying. It is easy for the average individual to see that ripping a DVD and posting the contents on the Internet is copyright infringement. It is much more difficult to identify patent infringement that occurs in a decentralized manner across the nation and in the privacy of one’s home.
Software technology aids copyright owners in their fight against infringement. For example, YouTube uses a system called “Content ID.”[27] All “videos uploaded to YouTube are scanned against a database of files that have been submitted to us by content owners” and when Content ID identifies a match between the video and a file in this database it allows the content owner to handle that situation by blocking or tracking the video.[28] Patent owners will have a very difficult time duplicating this software for use in an “Invention ID” system. For example, how can software detect if the parameters of all of the elements in the claim are met by the CAD design? For copyright law, the “Content ID” system acts as an initial barrier that copyright owners can utilize before infringement occurs. This is not an option for patent owners in the foreseeable future.
An aspect of the DMCA that patent law can adopt is offering a safe harbor for websites that comply certain defined standards. The solution would establish a clear procedure to deal with the inherent uncertainty and technical nature of patent law without reaching the merits of the vast majority of disputes.
[1] Richard Cornes and Todd Sandler, The Theory of Externalities, Public Goods and Club Goods
(Cambridge University Press, Cambridge, 1986)
[2] Id.
[3] Id.
[4] Lucas S. Osborn, Regulating Three – Dimensional Printing: The Converging Worlds of Bits and Atoms, DRAFT ‐‐ 51 San Diego L. Rev ___ (spring 2014).
[5] Id.
[6] Id.
[7] Id.
[8] Gregory N. Mandel, Proxy Signals: Capturing Private Information for Public Benefit, 90 Wash. U.L. Rev. 1, 3 (2012).
[9] http://firstmonday.org/ojs/index.php/fm/article/view/3912/3266
[10] Gregory N. Mandel, Proxy Signals: Capturing Private Information for Public Benefit, 90 Wash. U.L. Rev. 1, 3 (2012).
[11] Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things.
[12] Id.
[13] Id.
[14] Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things.
[15] Id.
[16] 35 U.S.C. § 112
[17] Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things.
[18] Id.
[19] Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: 3D Printing and the Digitization of Things.
[20] Id.
[21] Id.
[22] Kelsey B. Wilbanks, The Challenges of 3d Printing to the Repair-Reconstruction Doctrine in Patent Law, 20 Geo. Mason L. Rev. 1147, 1148 (2013).
[23] Id.
[24] Id.
[25] Id.
[26] 17 U.S.C. § 512
[28] Id.