Preventing the “Napsterization” of 3-D Printing

By Nicole Syzdek

Gartner, Inc., an American information technology research and advisory firm, reported that in 2013, combined end-user spending on 3-D printers will reach $412 million, up 43% from 2012.[1] This rapid increase in revenue for 3-D printing companies is not likely to slow down anytime soon. Gartner predicts that in 2014, spending will increase by 62%, reaching $669 million. The increase of 3-D printing has the ability to shake-up many areas of commerce.

3-D printers allow consumers to print three-dimensional objects at home. Although there are many competing designs for 3-D printers, most work in a similar way. The printing begins with a blueprint typically created with a computer aided design (CAD) program running on a desktop computer. CAD programs are presently utilized by many designers, engineers, and architects to model physical objects before they are created. Blueprints can also be created by using a 3-D scanner to scan an existing object in a similar manner in which a regular flat scanner can create a digital file of a 2-D image. Once the CAD is created, it is sent to the printer, which builds the object up, layer by layer, from tiny bits of material.

As 3-D printing technology develops, people will be free to make almost anything they desire themselves. This ability furthers the already shifting societal culture from mass production-oriented towards the “maker movement” that seeks to empower people to create customized goods, turning the home into a personal factory. The growth in popularity of Etsy, the online marketplace for homemade goods demonstrates this shift. John Hornick, an IP attorney with Finnegan, Henderson, Farbow, Garrett & Dunner LLP in New York stated it best when he said, “Everything will change when you can make anything.”

The ability to make anything implicates all areas of intellectual property law. 3-D scanners will allow us to easily replicate all kinds of physical things that may be patented or subject to copyright or trademark protection. Not only is the copy of a physical object problematic for intellectual property enforcement, but the market for CAD files containing design specifications is already forming on free peer-to-peer file sharing networks such as Pirate Bay. Sharing CAD files for infringing goods is reminiscent of the Napster disaster that befell the copyright entertainment industry.

The current regulatory structure for intellectual property does not cope well with the digital revolution. Many of the copyright and trademark dominated industries have unsuccessfully confronted digitization, but patent-based industries have yet to face the challenge. Evidenced from the copyright disaster brought upon by Napster and peer-to-peer file sharing, when digitization rattles an existing IP structure those holding a large stake in keeping the regime functioning sprint to lobby for congressional aid. The government should play a role in protecting 3-D printing IP, but what has proved to not work is responding to “fear-based” lobbying by large stakeholders.

To prevent the “Napsterization” of the 3-D printing industry IP holders need to first accept that the best approach is not to try to make the new digital era work for them, but rather to restructure their own business models to make them work with digitization. IP holders should take notes from how businesses such as iTunes and Amazon capitalized on online users’ preference for the combination of quality and ease of access to generate profit from the new file-sharing era. Some may unknowingly seek to repeat the mistakes of the copyright wars by pushing for new laws to prosecute anyone who uses the new technology for infringing purposes, demanding technological solutions like digital rights management or attacking intermediaries who provide file sharing websites with aggressive take-down procedures and legal battles. But IP holders must remember those strategies failed. To cushion the economic shake-up, it is necessary for IP holders to begin strategizing on how to approach the business and legal issues woven into the emergence of 3-D printing. With adequate preparation, it is safe to say that IP holders are not out of options.