Comment: 3D Printing

The country, if not the world, is fascinated with the growth of 3D printing, whether regarding printed toys, human tissue, or even pizza in space.1NASA is funding a 3D food printer to provide a wider range of foods for astronauts in space and to achieve a loftier goal of preventing food shortages back home on earth.2 Could a printer cartridge last as long as thirty years (their supposed lifespan)? Remarkably, NASA scientists have envisioned food first as dough, cooked as printed, followed by tomato powder mixed with water and some protein.3 Other scientists have focused on 3D printers as a means to print replacement body parts using bioabsorbable plastic.4According to Lux Research, 3D printing will be an $8.4 billion market in 2025, led by automotive, medical, and aerospace applications.5 That will be an increase from $777 million in 2012.6 However, consumer applications will have limited upside, while industrial uses will generate the most value.7Printing in 3D raises many intellectual property issues that could lead to epic legal battles regardless of whether the level of printing requires a high degree of creativity or simply involves downloading some files from a web page and sending them to a printer.8 Manufacturers likely will be clamoring for greater protection as hobbyists copy toys and others copy designs and print items such as tables and chairs. These printers offer more than just copying; they offer a new tool for producing the designs of our imaginations. So, how do we begin to address the complicated intellectual property issues among the various copyright holders and users?Mr. Dolinsky's Note focuses on three potential solutions to claims that undoubtedly will be raised as copyright holders contend that a CAD designer, a website, or an individual using a 3D printer infringed a protected work. First, he offers a test for the copyrightablity of CAD files that control the functional interaction between design drawings and computer code components by reviewing each component separately.9 Second, he applies the test to a variety of potentially derivative works in 3D printing.10 Finally, he recommends that courts should adopt Professor Lee's technological fair use standard.11Take as an example a knee joint for a puppet created by a theater professor who used a CAD program to design the joint and then sent the file to the printer for final reproduction. Although the end product is a 3D object, it seems to me that there is little legal difference between a writer who uses a word processing software package to write an article and a designer who uses a CAD program to create an object. Although parts of the software program have been copied and used in the drafting of the article, the software copyright remains with the copyright holder and a new copyright attaches to the article owner by the author. Here the copyright remains with the CAD program holder, no infringing copies were made, a new copyright attaches to the design of the knee joint, and the object is likely a protected derivative of the design file, presuming other tenets of copyright law are met.12Professor Lee proposes that courts, in applying the fourfactor fair use test set out in 17 U.S.C. § 107,13 consider other factors including whether the copyright work is a new technology and whether there is a perceivable public benefit from the technology.14 He would add three inquiries to the fourth factor analysis.15 His test not only focuses on market harm caused by the infringement but also requires a consideration of the possible positive effects on the market.16 When the VCR was introduced into the market, copyright holders claimed that the market would be dramatically harmed.17 In fact, the market for movies was revived by the introduction of the sale and rental markets for VHS tapes and then movies on DVDs.18I, too, think Professor Lee's test has some merit. Empirical research shows that courts are inconsistent in their application of the fair use test and that the effect on the market-the fourth factor-in spite of the Supreme Court's pronouncement to the contrary, is still the most important factor. …