The Complications of 3D Printing

Feature Article

The technological innovation of 3D printing is growing in capability and popularity, but it may create significant shifts in some legal areas

Essentially, 3D printers allow people to create an array of products on demand. No longer will you have to work in a factory to make goods, as 3D printing allows people to create all kinds of products, from jewellery to iPhone cases, right in their own homes. Whereas the capabilities of producing products were only in the hands of big enterprises with the necessary equipment in the past, 3D printing could create a future where more people have the ability to make their own products the way they want and when they want.

It is very much a realistic possibility that this technology will change our lifestyles dramatically when it eventually makes its way into our homes. This robot is advancing so quickly that it may even have the ability to print food products. The prospects are incredible, and even NASA has built a space probe from 3D printing which will be heading into space. The possibilities of this technology will certainly change the approach to manufacturing.

However, like any new innovative technology, it has its complications and disadvantages, and has given lawmakers and governments things to worry about. In particular, the effects it could have on product liability and intellectual property law are drastic. The fact that people can now make more complex, and potentially dangerous, products in their own homes, begs the question as to how product liability affects those people who may be considered “occasional sellers” and if so should these sellers be held responsible for their potentially dangerous or defective products? In terms of intellectual property, is there a way to regulate the technology to ensure that the protection of a designers work is sustained? These are some of the many questions that arise from 3D printing, which, as well as it sounding incredibly innovative at first, does sound legally cumbersome.

Shifting Liability

Normally, it is the obligation and responsibility of manufacturers and those who are in the distribution chain of sales to the general public to deliver goods that are without defects which could cause harm and are liable for any potential injuries that may occur. This means that anybody who manufactures and then sells a defective product can be subject to liability for any harm that may be caused by its defect. This rule applies, however, only to “sellers”, and so non-commercial manufacturers or “casual sellers” are not classed as sellers who are subject to strict liability law. For example, a child who bakes cakes and then sells those cakes at a cake sale would not trigger product liability law. The child is indeed selling the product, but is not a commercial seller, and so, therefore, the child is not subject to such laws.

The rule for product liability not only involves the confirmation of who qualifies as a “seller” but also what a “product” is. Many past cases have established that “a product is tangible personal property”. More specifically, it is a good that can be touched and takes a physical form. Therefore, according to the rule of product liability, things which are not tangible, do not prompt strict liability. An example of a case which reassures this concept involves a situation where a consumer reads a tourism book which states that there is a beach in Hawaii which is great for swimming and encourages people to go there for a holiday. It turns out that the beach is actually extremely dangerous for swimming, but the consumer goes swimming in it and gets hurt. The claimant then wants to sue the manufacturer (printer of the book) for strict liability, claiming that the book is defective and is a tangible product.

Despite this, however, a publisher or author of a book cannot be sued via product liability because the content of a book is not classed as a product because content is not actually tangible.

Typically the products which can be made within a persons home are harmless. However, with the introduction of 3D printing gives people the capabilities to make products which can be dangerous and hurt others, and since product liability does not affect those who are non-commercial sellers, there are no liabilities in place to assert on those who have produced dangerous or defective products. As a result, there is likely to be more litigation addressing who qualifies as a “seller” since people may be making more dangerous and complex goods if 3D printing does take off. The line between commercial and noncommercial sellers will be blurred, where the definition of who qualifies as a commercial seller triggering strict liability is broadened. In addition, 3D printers operate from design files which use computer software, and so it also challenges the definition of a product, as software is not, arguably, a product which is tangible, which has been supported in past cases establishing that video games are not tangible products because their content is not tangible and so it would not trigger product liability law.

If 3D printing does become popular amongst consumers, it will democratise the manufacturing and selling of complex goods and make it a far more ubiquitous process, accessible to a wider range of people. This severs the link between manufacturers and sellers, as anybody can become a manufacturer of complex good with a 3D printer, and if product liability is then asserted on these people, then it may fluster the theoretical foundation of strict liability law and cause significant shifts in terms of who can be held accountable for defective goods.

Intellectual Property and 3D Printing

In the legal world, intellectual property refers to the legal property that is the creative product of the mind, which includes the law of copyright (works of authorship), trademark (ownership of brands and marketing efforts) and patents (inventions of the mind). This branch of the law has the function of protecting creators and designers and the work they produce, to ensure they get all the credibility that it may produce. 3D printing could affect the workings of intellectual property law in terms of physical products, as the internet did with information.

Essentially, the internet divided the creation of goods/services from the distribution and production of goods/services, and made those processes almost costless. Although 3D printing is not yet costless or close to it, that is likely to change as it becomes more popular amongst consumers. The internet gave consumers the ability to access information quicker, easier and of a much wider variety than ever before. The liberalisation of information benefited consumers because the information was offered for free or very close to it. Contrastingly, it was not so beneficial for intellectual property owners. The internet was very troublesome for them, because not only did they have to sue the person or people involved in generating distributing counterfeits of their property, but all the consumers who then use or gain possession of the counterfeited property. But with the vast number of people using the internet, this process would have been incredibly tedious.

Intellectual property owners opted to instead find the intermediaries (a person who acts as a mediator or agent between parties) and the “choke point” to stop the flow of the counterfeited information to lots of consumers. In turn, intellectual property owners would probably want control on technologies like 3D printing, and have a limit to those who can have access to the technology and make them comply with certain rules and regulations to only allow the copying of certain materials in certain circumstances. An example of this is evident on the website Youtube, which has a content ID service in place to find any material infringing copyrights, with a ‘six strikes and you’re out’ program. In a few years, technological advancements could result in scanners capable of scanning products and then sending that information to a 3D printer to make multiple copies of the product, which could potentially cause many complications for intellectual property. It would make it very easy for anybody to go into a shop, take a picture of a product they want, and print copies of it for free at home with their 3D printer without crediting the original creator. As a result, it has been recommended, if possible, to include special code embedded into the product, so when a product is scanned, or someone takes a picture of it to print, the printer will know not to print copies of the product, and would stop people from infringing copyrights of manufactured goods.

However, if it this is not possible, at least for the meantime, to implement restrictions or regulations on the technology, intellectual property owners would then at least want to be compensated for the damage that the technology may cause. More specifically they may want the people who provide the technology to have to pay for those damages, such as copyright damages or maybe even a tax. There are a number of people who could be labelled as intermediaries in the 3D printing world.

Essentially, if someone has an industrial printer and they are printing products in their home, this makes them an intermediary. Although they may not be engaged with the design of the product, they still provide an easy target or “choke point” for a copyright owner to claim that they are in the business of generating these copyright infringements and so they are liable. Alternatively, another intermediary could be the design host system, such as a website consisting of digital design files available for download for an average consumer. The information is being held here consists of all the designs which are infringing, copyright owners could identify this as their “choke point” and request the copyright infringed design files to be taken down. As well as the host, the makers of the printers themselves could be labelled as the intermediary, even if the manufacturers intent is for domestic utilisation of the technology. Intellectual property owners may argue that it is a device which is designed to bypass intellectual property protection, by being able to produce copies of any kind of works, and so action should be taken to regulate the distribution of the printers. The creation of numerous possible intermediaries makes the technology and complex one to cope with for intellectual property owners.

Essentially, it also challenges some fundamental economic concepts, in the same way the internet did with information. The technology could create a world where there is a lack or absence of scarcity in the manufacturing of goods. This is an astonishing concept to consider, as economics is based around the idea of scarcity, and how resources are scarce and our wants and needs are infinite. Indeed, intellectual property plays a part in making things scarce, as in the traditional economic structure, people will buy something which is more scarce because there is a limited amount of the good, and they are only available from a few sources. Much like the internet gave consumers the ability to produce and attain information and significantly reduce the scarcity of it, 3D printing could give people to produce manufactured goods and almost diminish the scarcity which comes with it and brings with it various legal challenges.

Is the Law Ready?

The advent of 3D printing has already been able to produce a wide range of goods. Cars, phone cases and even shoes are just a few of the vast range of items this incredible machine can assemble. Additionally, and quite worryingly, it can also make more exciting goods, like workable guns and drugs. With this kind of technology falling into the wrong hands, it can be utilised as a means to ensue menace and chaos. The commercial availability of printers may, therefore, have to be rethought. It is another example of great technological innovations being put into the hands of consumers without considering the potential negative consequences it may have or be capable of encouraging. Just as the internet, with its liberalisation of information and digital resources and tools, and despite the wonders its down for the various aspects of society, many have now recognised its dark side; being a convenient instrument to not only spur on further development in the technologies which enhance humanity, but also endanger it by transporting it into an age of ambiguity and unsuspecting danger. 3D printing is a new addition to the collection of technologies which bring upon exciting but extremely frightening prospects which are difficult to envision. Although the price of many printers put it out of reach of most people (some costing as much as £2,500), as with most consumer electronics the price over time will come tumbling down as new competitors emerge from the groundbreaking phenomenon. And so this begs the question; is the law actually ready 3D printing?

Officially, 3D printing is a manufacturing technology which has the ability to make three-dimensional objects of almost any shape from an electronic data source. It takes 3D modelled designs and produces them into custom solid objects. This industrial robot has in fact been around since the 80’s but has only become commercially available in the past few years. This technology has the potential to become on of the most revolutionary technologies the world has ever seen, and may spark what could possibly be another industrial revolution.