Editor's Note: Peter Hanna is an associate at the law firm Jenner & Block. This post is part of the Global Innovation Showcase created by the New America Foundation and the Global Public Square. It is adapted from a piece that appeared on Ars Technica on April 5, 2011
By Peter Hanna – Special to CNN
Who really printed the impossible triangle?
The Penrose Triangle is an optical illusion–a drawing of a triangle that is impossible to actually make without resorting to hidden openings or gimmicky twists. (Easier drawn than described.) Few had succeeded in manufacturing a three-dimensional version of the illusion until Ulrich Schwanitz printed one, using a technology known as 3D printing, earlier this year. But Schwanitz wouldn’t share his secret with the world. Instead, he made his “impossible triangle” available for purchase through Shapeways, a company that fabricates custom 3D designs, for $70.
Within a couple of weeks of Schwanitz’s “discovery,” another 3D modeler named Artur Tchoukanov watched the video and figured out how to recreate the shape. He then uploaded instructions to Thingiverse, an open-source repository of 3D models and content, and was wrongly credited by some as the creator of the object. Anyone with a 3D printer could then download and “print” Tchoukanov’s file–in effect, making a copy of Schwanitz’s original object.
Schwanitz demanded that Thingiverse remove Tchoukanov’s design because it allegedly infringed Schwanitz’s copyright. Although the claim was questionable, Thingiverse complied and removed the offending designs. “For better or worse,” Thingiverse's founder wrote, “we’ve hit a milestone in the history of digital fabrication.”
Though Schwanitz backtracked and rescinded his DMCA complaint, the incident spoke to something broader and far more significant for 3D printing as a new technology: the first shot had been fired across the bow in the next frontier of intellectual property (“IP“) disputes. An emergent technology had collided with a body of law that wasn’t necessarily ready to handle it.
Though still in its infancy, 3D printing technology promises to democratize creation the same way the Gutenberg Press democratized knowledge. Broken dishwasher part? Download the relevant CAD (computer-aided design) file and print it. While Amazon made trips to the store seem dated, 3D printing (if it succeeds) will make ordering (some) things online feel positively quaint.
Gutenberg didn’t have to worry much about intellectual property laws. Eventually, though, copyright emerged as a means to regulate Gutenberg’s disruptive technology. What will the analogue for 3D printing be?
The promise of making anything out of almost any material is so broad that no one yet knows. Regulation might be premature as 3D printing remains a niche technology. After all, stricter regulation of online file-sharing did not gain momentum until Metallica sued Napster. The 3D printing community simply hasn’t had a defining “Napster moment” – yet.
For now, the 3D printing community does pretty much what it wants, as it wants. By and large, the community has taken advantage of the regulatory vacuum by embracing two models for the distribution and fabrication of 3D designs. In the "open model" (Thingiverse), users freely share their designs. In the “money model” (Shapeways), aspects of the 3D printing process are commercialized.
Thingiverse has only acknowledged one IP-related complaint (from Schwanitz). But Thingiverse’s collection boasts designs for things like Darth Vader heads, whose distribution puts Thingiverse at legal risk. After all, Star Wars is an extremely lucrative intellectual property.
For now, so few people have 3D printers that legal action might just make for bad PR. No one is mass producing Vader heads (tempting as that always is) and selling them. And Thingiverse doesn’t appear to be making money from the distribution or sharing of the files it hosts.
But there are plenty of sites that are trying to profit from copyrighted works or patented inventions, and these may attract more attention as 3D printing technology becomes more ubiquitous. 3Docean, for example, allows users to buy designs for an Alessi tea set that retails for hundreds elsewhere. On 3dstudio, users can download the model for a Jonathan Adler chair that retails for $700 at Neiman Marcus.
These examples are far more troubling from a legal perspective. In both instances, the websites offering the downloadable 3D files use the trade names of the original designer/manufacturer, which brings in trademark concerns in addition to the expected patent and copyright issues. One can easily imagine a situation in which a customer would assume these trademark-bearing 3D designs were being sold by Alessi or Jonathan Adler directly – not a third party with no affiliation (and presumably no license).
The patent implications are even more obvious. Generally, just downloading a 3D design wouldn’t necessarily constitute patent infringement; however, the 3D printing of a patented invention or article would constitute direct infringement. Just like BitTorrent sites cannot turn a blind eye to the files they host, sites that host infringing 3D design files could face claims of indirect patent infringement. This has real implications for both Thingiverse and Shapeways, which will need to do more than passively assume uploaders comply with user agreements that pay lip service to IP laws.
Although copyright is a different kind of beast from patent, it will also play a crucial role in the 3D printing world’s unfolding future. As Napster, Grokster, Limewire and many others have come to learn, copyright litigation (including the DMCA) offers rights holders a powerful set of tools to combat infringement.
This is partly because a copyright is more easily obtainable (and is generally less assailable) than a patent. For one, copyright protection is available for any object containing even a “slight” degree of creative expression – pottery, furniture, and toys come to mind. Copyright could also attach to the 3D design files themselves, which would be protected to the extent that they represent original creative work (i.e., a design) in a fixed tangible medium of expression (i.e., a computer file). Downloading or sharing such files alone could constitute copyright infringement (whereas it would probably not constitute patent infringement).
Generally, proving copyright infringement requires the copyright owner to show copying of the “protected” elements of the work. This is easy when a duplicate object is fabricated, but perhaps more difficult when the only “copy” exists as a digital representation of a real object. This poses some tricky (and almost philosophical) questions: if a fancy chair can be represented in bits and sent to a friend, what’s to say it’s not a copy of the original? If we scan a chair and represent its every nook and corner in a digital file, ready to be reproduced from any material anytime, anywhere–couldn't sharing the “chair file” violate the law?
This is one area where new laws might help. By making this kind of “physical-to-digital” format shifting illegal under the auspices of copyright law, Congress could protect designers and possibly provide a separate cause of action that courts could easily wrap their heads around. But this could also stifle innovation, and slow down a technology that (well, one day) promises to give us all Star Trek replicators.
When (and if) 3D printers are as common as inkjet printers, you can be sure that there will be robust trade–both sanctioned and unauthorized–of 3D design files. Will people be willing to pay for these files when they're freely available for download elsewhere? What's the appropriate "market price" for a 3D design file for a fancy chair versus the cost of the chair itself?
Finding the balance between defense of intellectual property and creative expression was never easy in two dimensions; it will be at least as hard in three.