Three-dimensional printing technology continues to be a new frontier of creativity, advancement, and of course, legal issues. The laws surrounding 3D printing have always been a topic of concern, but the discussion took center stage over the last few weeks in an unprecedented way.
If you’re new to the idea of 3D printing, here’s a basic summary: a printer using hot plastic places the plastic in layers to build an object from the bottom up (Let CNN explain). In order to create the object, the printer relies on a design files (CAD files) that contain the code regarding how to build the object. CAD files can be original creations, or users can use a 3D scanner to scan an object and help generate a CAD file. Simple, right? (previous DuetsBlog articles on 3D printing are available here, here, here, here, and here).
Many users share, distribute, and sell their CAD files through online databases like Shapeways and Thingiverse. For example, if you had a 3D printer, you could download and create this World’s 2nd Best Lawyer Award for free!
3D printing raises a number of legal issues, as users can scan and print objects that may infringe upon a third-party’s copyright, trade dress, or patent rights. These possibilities led one of our authors to wonder if 3D printing would become “the next Napster.” As with most new technology though, there is a lot of gray area, and little in the way of court decisions for guidance.
However, the 3D printing community recently was forced to confront this gray area head-on. News began circulating that an eBay user, just3Dprint had taken over thousands of CAD designs from Thingiverse and other websites and was selling the physically printed products on its eBay page for profit. Although all of the listings have been removed as of this posting, you can also visit Just 3D Print website for more information on its 3D printing services.
Understandably, many 3D printing community members were upset. Just 3D Print had taken the exact CAD designs (along with the accompanying photographs) and placed them on eBay for sale, reportedly without any attribution. While many Thingiverse users agree to license the use of the CAD files for free pursuant to a Creative Commons license, many of those licenses restrict the license to non-commercial use. As a result, Just 3D Print may have infringed the copyright in (1) the CAD file, (2) the physical object, and (3) the photographs.
But Just 3D Print doesn’t see it that way. In a lengthy response under the username JPI, the company made a number of claims, including that (1) CAD designs are unprotectable and that (2) that by uploading the designs any protectable rights in the designs became part public domain; and (3) Creative Commons licenses are unenforceable. We can easily disregard the public domain claim because merely publishing a copyrighted work does not place the work in the public domain.
The protectability of CAD designs is a more interesting issue, though. CAD designs of copyright protected objects could be protected as a derivative work of that object. CAD designs can also be original technical designs created without scanning a physical object. Yet if the design is merely a scan of a common object, it is possible that the CAD design may not meet the originality threshold if there is a limited number of ways to express the idea of printing that object. If that is the case, the “expression” (the drawing) merges with the idea (the common object) and the expression is not protectable. This is known as the merger doctrine.
Of course, in light of the sheer number of copied files, the use of the photographs, the intent to profit, and the blatant disregard of the Creative Commons licenses, I’d predict it is unlikely that the merger doctrine protects all of Just 3D Print’s actions. But if I’m going to print off an award for the World’s Second Best Lawyer, I had to at least ask the question.