Although intellectual property (IP) law adequately protects many forms of IP, the coming commercialization of cheap 3D printers may facilitate new means of mass pirating that existing law cannot prevent. Though legal reform is the common strategy used to deal with IP challenges, the efforts of IP owners might be better spent finding new ways to monetize their property.
Invented in the 1980’s, 3D printers can create three-dimensional objects using malleable materials, often a liquid resin. Until about the last ten years, the cost to purchase this new technology was well above what average consumers and business owners could afford. But a string of recent innovations — in part thanks to fierce competition following the expiration of several important 3D printing patents — has made the commercialization of cheap 3D printers seemingly a matter of time. Quality printers can now be bought for $1,500.
Transferring manufacturing from the factory to the home is no small cultural shift, and IP stakeholders are understandably concerned (IP lawyer John F. Hornick has written a nice overview). Generally their worry is that cheap 3D printers in combination with information technology — the same that has allowed the widespread pirating of music and movies since the internet’s commercialization — will unleash a torrent of new IP infringement.
These fears are not unfounded. Three-dimensional objects find IP value in their design, which can be stored in digital files. Like music or movie files, these designs are easy to share online, but until now have not been thanks to the high costs of manufacturing. That is to say, until now three-dimensional designs have been protected not by the threat of IP laws, but by the inability to make cheap copies. This will soon change.
Historically, when new technology threatens the security of existing intellectual works, there is a tendency to react with legal reform. And not without reason, as IP law has proven a useful weapon against piracy in the past — IP law itself was originally developed in reaction to the printing press.
But the law is not always a useful tool in these fights. The most recent example of this is the entertainment industry’s response to the digital pirating of copyrighted materials in the late 1990’s, which consisted of legal reform campaigns and publicized lawsuits against file sharing services (such as the case that shut down Napster, one of the first successful file sharing services). Neither accomplished their desired effect, however, and despite the time and money put into these strategies, digital piracy remains an issue today.
This example demonstrates the limit of IP law: enforcement. Without a practical regime for enforcing IP rights, there is little to dissuade all digital copying. For example, in the case of the entertainment industry, the law was useful when attacking centralized services, like Napster, which stored files on internal servers, but it has failed to stop new decentralized services, which store files on the computers of individual users.
These decentralized services, rather than providing pirated files, provide the ability for users to connect with one another and share the files they already hold. Because these services are easy to replace and the files difficult to replace, for a legal injunction to efficiently prevent this sharing it would need to somehow target every individual user. An attempt to shut down one of these services would only result in the quick launching of a replacement— one of the largest file-sharing websites has symbolized this dynamic by displaying on their homepage an image of the multi-headed Hydra.
Given that IP law is unable to fully control digital piracy, and that valuable 3D designs are easily shared, to meet the challenge of 3D printers IP owners should use strategies other than legal reform. Some alternatives have already been explored, such as Digital Rights Management, which attempts to protect IP through technological security measures. However, pirates have largely been able to circumvent this approach. If IP owners want to protect themselves from cheap 3D printers, they should focus their resources on a strategy that pirates cannot corrupt: creating new ways to monetize IP.
Some of the biggest IP success stories of the digital age came from this strategy. For example,a partnership with Apple revitalized the music industry, who made paying for music easier than downloading; Hollywood found profits by revamping their international strategy, creating bigger theatre audiences around the world for their big-budget action movies; and both the music and movie industry have seen success using new subscription-fee models that licence IP in bulk, most notably used by Spotify and Netflix. 3D designers could use the same strategies. For example, rather than designing one object for mass-production, they could create subscription-based software that produces multiple custom-tailored objects.
Whichever new business model works best to preserve 3D IP will likely be found only after extensive trial and error. But one thing is clear, when 3D printers permit mass pirating, IP owners should respond by offering a product that cannot be copied.
Matt Wallace is an IPilogue Editor, JD Candidate at University of New Brunswick, and writes on technology law.
1. Adrian Johns, Piracy: the Intellectual Property Wars from Gutenberg to Gates (Chicago: University of Chicago Press, 2009) at 8.
2. E.g. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
3. Hasshi Sudler, "Effectiveness of anti-piracy technology: Finding appropriate solutions for evolving online piracy" (2013) 56 Bus Horizons 149.