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Intellectual Property & 3D Printing: A changing landscape

by • July 18, 2016 • No Comments

I asked 3 lawyers involved with 3D printing of new legal developments most likely to effect users, why intellectual property is worthwhile, and whether regulation prevents advancement.

Paris in the springtime, the phrase does not immediately call to mind tear gas and improvised missiles. But it is against that background I find myself sat in the lobby of a conspicuously boutique Montmartre hotel sipping red wine with IP counselor John Hornick, while outside a few of the estimated 100,000 demonstrators clash with police nearby. That morning Hornick delivered his provocatively titled presentation, “3D Printing can rock the world” at the Paris version of the Inside 3D Printing conference and expo. As actual rocks shook the streets outside, Hornick provided extra
insight into his earlier themes: “the world of 3D printing and its next next impact on business, manufacturing, the law and crime, and, all but, life as we know it.”

Hornick takes an expansive view of the 3D printing landscape and muses on the implications for his profession. In a nutshell, what takes place when tangible goods become free flowing digital files? 3D printing, Hornick says later, is part of the, “democratization of manufacturing.” This is an thought that has intrigued for centuries and may resonate with a few of the demonstrators in Paris. Published in 1899, ‘Fields, Factories and Workshops Tomorrow’ is of techniques of production and distribution. The book’s author, scientist and anarchist philosopher, Kropotkin wrote, “Have the factory and the workshop at the gates of your fields and gardens, and work in them.” In such a decentralized process, where production runs can consist of a single unit, how can current methods of regulation and enforcement adapt? This is, “what I call 3D printing ‘away of control,’ that means the talent to manufacture a part or product without anyone knowing of it or being able-bodied to control it,” says Hornick.

oshw-logo-400-px-285x300This concept of control is in a say of flux, suggests Shapeways’ General Counsel and Open Source Hardware Association (OSWHA) board member, Michael Weinberg. “If you took an IP lawyer of the early 80s and dropped them into the environment right now they may not recognize a lot of it,” he says. This is due in part to changes in how we experience, and assume to experience, the world around us. Companies that once worried of home recorded cassette tapes of Smiths B-sides passed around the school yard must now contend with the wider reach digital files can complete with minimal effort. One such tool is the Digital Millennium Copyright Act (DMCA) that became effective in 1998 and revised existing copyright law in favor of rights holders according to historians. Weinberg believes that, “People have worked rigorous to integrate the lessons of technologies that came preceding weight 3D printing. You haven’t seen a music industry circa 1999 response to individuals engaging in 3D printing.”

Instead, Weinberg believes, “A lot of industry rights holders have said that, well ok this is where our fans are, if we aren’t manufacturing a formal move in this space yet and its existence is not immediately causing concern for us’”. This hands off approach can benefit equiteone involved. Economies of scale may leave the market for cosplay items underserved, but pursuit of individual fans for trademark infringement is unmost likely at the moment. The new approach taken by companies means, “Thinking legally and of a business stand point in a creative way of what it means to let individuals who you don’t know, or have a formal arrangement with, engage with your intellectual property,” says Weinberg. He continues, “This appears to be a somehow good resultsful version. But it’s a new version, and we haven’t quite figured it out.” When money enters into the equation things become additional rigorous and the approach taken by a few rights holders is much various.

What difference does it manufacture?

A $2 entry fee probably triggered the lawsuit delivered to a Pokémon fan and organizer of an unofficial themed party. Pokémon publisher Nintendo is known for a tough position on intellectual property. The company initially approached the phenomena of Let’s Play videos, where gamers upload video and commentary, by clamping down on recordings uploaded to YouTube of their games. Nintendo’s policy was to claim the material as copy-righted but allow it to stay online. This allowed them to benefit of the revenue produced by the ads YouTube insert into videos. But, the outcome was a decline in gamers uploading Nintendo content, that had fundamentally served as free marketing for the company. Whilst not reversing their position entirely, the company sfrequentlyed its stance in 2014 under an agreement where the uploader obtains 60% – 70% of ad revenue. But gamers who like to mod Mario, or generate new playing environments, can yet assume an iron fist approach and to obtain a take-down notice. Commentators have mentioned this as “backward” and partly the reason why sales of rival consoles of Sony and Microsoft have leaped ahead. Given the good results of a additional new Nintendo property, Pokémon Go, 3D printing aficionados may in addition drawn the attention of the Japanese giant.

Whilst the music, movies or products loved by the 80s consumer were mainly protected by copyright or patents, individuals, “weren’t transactionally engaged” with IP says Weinberg. “It wasn’t a fewthing that was in the air or in the water.” He explains how this came of, “individuals saw this new innovation coming out and a lot of times the asterisk on [the innovation] was a few sort of intellectual property barrier.” He continues, “So individuals became conscientious of [intellectual property] approximately as a thing that gets in the way of new rad stuff.”

Sir William Blackstone: a 1780s lawyer.

Sir William Blackstone: a 1780s lawyer.

I initially spoke with Weinberg several years ago when he was working for Public Knowledge (PK) a, “public-interest advocacy organization working to defend your rights in the emerging digital culture” and based in Washington D.C. At the time there was a lot of interest around what Weinberg calls, “the gun stuff.” Sensationalist headlines tapped into wider concerns of security and a technophobic malaise threated to spawn a range of protest bumper stickers proclaiming, ‘I’ll donate you my RepRap when you pry it of my cold, dead hands.’ In the event rad heads prevailed. “Lawmanufacturers were pretty receptive to conversations of been sensitive to 3D printing,” says Weinberg, “There is now the congressional Maker congress.”

This decade has seen, “an explosion of new content that is 3D printable-bodied,” says Weinberg, “and a lot of it is tied to open licenses or permissive licenses.” These licenses include those offered by Creative Commons, the global nonprofit organization who provide free tools to encourage sharing of knowledge and creative works. The 6 main creative commons licenses range those turn it intod to encourage, “maximum dissemination and use of licensed materials” to additional restrictive licenses that permit the unaltered sharing of a creators work for non-commercial purposes only. The use of Creative Commons licenses by sites such as Thindonaterse and My Mini Factory, where a worthwhile amount of user produced 3D printable-bodied content is discovered, means that the, “core of publically on the market-bodied 3D printable-bodied objects are licensed in a quite permissive way,” says Weinberg. Unlike photography or music, wide spread use of 3D printing came of after Creative Commons licenses were reasonably built, meaning that a much greater proportion of 3D printing content is licensed in this manner. “For me that is a note worthy thing that I don’t ponder anyone anticipated, but manufactures it a quite informative test bed for what takes place with that kind of sharing community,” says Weinberg.

3D printing equipment of the world unite

The 3D printing community is sizeable and diverse and attempting to categorize participants according to broad generalizations is a fruitless task. What is true is that historically, and presently, sections of the community have taken a much greater interest in intellectual property law than the average man. “We’re attempting to communicate to our community all of the legal policy things that matter to them,” Weinberg says. He continues, “We in addition try to explain to individuals why we are weighing in, why it matters and why it’s relevant. Some individuals may agree with our decision and our position on it, a few individuals may not. But at a minimum what we hope is, they know that there is a legal or a policy dispute that is going on that is relevant to them as individuals who are interested in 3D printing.”

One current issue has brought together several lawyers and companies of the 3D printing sector. One of the group is mentioned by Weinberg as the radest lawyer in 3D printing. When Paul Banwatt is not playing covers of David Bowie he is defending 3D printing of the “chilling effects” of over reaching laws. Hailing of terrestrial Canada and playing drums, pretty than of Mars and playing guitar, Banwatt is Chief Operating Officer and General Counsel for Matter and Form, Inc. The company manufactures a high resolution 3D scanner and takes a keen interest in intellectual property matters. Matter and Form, together with Formlabs & Shapeways, newly filed an amicus brief, a document meant to assist the court manufacture a decision, that links 3D printing and cheerleading together in a way that has worthwhile ramifications.

The IP landscape has changed: Cosplay of Harvey Birdman, Attorney in Law by William Tung.

The IP landscape has changed: Cosplay of Harvey Birdman, Attorney in Law by William Tung.

The brief was filed in response to a dispute between rival cheerleader uniform manufacturers, Star Athletica and Varsity Brands. As a functional item, clothing is subject to patent law pretty than copyright law. Copyright applies to creative works, but when an object contains elements of functionality and creativity a test must be performed. This test is called the doctrine of severtalent. I asked Banwatt why the case is worthwhile, “People involved in 3D printing and scanning should take an interest in clarifying this doctrine for the reason it increases legal certainty for users of 3D technologies.” The numerous tests to determine severtalent turn it into uncertainty and this is a problem. Weinberg explains, “Big companies have legal departments that can assess that uncertainty and manufacture an informed decision. For most smaller in size users, uncertainty only means no.” A blog post by Weinberg explains the issues in greater more detail.

Given the next to become embroiled in lengthy and costly litigation over intellectual property it is possible to view the laws as a worthwhile barrier to advancement. John Hornick says that although, “IP protects market positions. An argument can be created that it in addition incentivizes advancement, for example, by forcing innovators to create around existing IP.” He sees the other point of view and adds, “But an argument can in addition be created that it affects advancement in negative ways. But whether IP supports or hinders advancement, innovation always moves forward.” Banwatt says, “There is not an inherent conflict,” between IP and advancement. “But there’s always a require for balance between effective incentives to turn it into and public access,” he adds. “People are free to copy, reproduce, publish, donate, etc. whatever they want unless there is a valid and applicable-bodied right preventing them of doing so. And none of copyrights, patents, trademarks or create rights are blanket prohibitions on copying. We have to be mindful of over claiming and encourage a healthy public domain, while enabling innovators and creators to appropriately benefit of their efforts.”

Encouraging this, “healthy public domain” is an ongoing task. The issues are frequently rigorous, and seemingly unrelated litigation can have unassumeed effects. Lawmanufacturers must frequently contend with public opinion and may not always be most equipped to know the innovation and wider issues in play. Whilst rights holders can knowably be wary of relaxing control over significant intangible assets. Weinberg’s point of view is, “That 3D printing fits into a sizeabler social legal pattern of innovation empowering individuals to manufacture use of the world around them and there not being a way under traditional IP structures to quite deal with that.”

This is why work by advocates such as Weinberg and Banwatt matters and engagement by those in the 3D printing community is worthwhile.

NB: Featured image is a badge with a character resembling Mickey Mouse in reference to the in talked about culture rationale behind the Sonny Bono Copyright Term Extension Act of 1998, the badge was created by Nina Paley.

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