CopyCADs: 3D Printing, Copyright, and Digital Files

By Elisabeth Schiffbauer

3D printing emerged and started to gain recognition as an established manufacturing technology in the late 1970s. Over the past 30 years, the development of 3D printing has led to cost-efficient 3D printers readily available for use by private individuals. 3D printers allow individuals to print complicated parts and objects from design files that are accessible and easily shared via the Internet. While 3D printers present economic and environmental advantages regarding the manufacturing and distribution of goods, there are concerns of such use and the scope and operation of intellectual property law. In recent years, copyright and its implications for digital files and computer aided designs (CADs) have generated much discussion.

How 3D Printing Works: A Brief Overview

Essentially, “a 3D printer is a machine that can turn a blueprint into a physical object.” Michael Weinberg, It Will Be Awesome If They Don’t Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology, 2 (Nov. 2010). Although there exist a number of competing designs, 3D printers generally operate in the same way. “Instead of taking a block of material and cutting away until it produces an object,” a 3D printer “builds the object up from tiny bits of material, layer by layer.” Id. This allows 3D printers to not only create individual parts for assembly, but also complex objects with internal, movable parts.

The 3D printing process starts with a blueprint or digital file, usually one created with a CAD program on a computer, producing a virtual 3D model of an object. The CAD design process replaces the need for prototypes made of malleable material, allowing a designer to create a model, freely manipulate a design, and save it as a file. “Alternatively, a 3D scanner can create a CAD design by scanning an existing object.” Id. at 3. Regardless of which process is used to create it, once a CAD design exists it can be distributed like any other computer file. Interestingly, how the file was created may impact its copyright status.

3D Printing and Copyright

For 3D printing, physical objects live in digital form in .amf format, or the older and more widely used .stl format. These files “can be thought of as the object equivalent of a .pdf file- they are more or less universally printable by 3D printers and allow objects to be transferred digitally around the world.” Michael Weinberg, What’s the Deal With Copyright and 3D Printing?,  14 (Jan. 2013). Stl files are “protectable” by copyright, however, that does not mean that every design file for a physical object is automatically protected by copyright. Id. Generally, designs are only protected by copyright “to the extent they go beyond the utilitarian requirements of designing a useful article.” Id. This becomes complicated in practice when objects combine useful and artistic elements.

Useful Objects

“Generally speaking, the existence of a digital file should not be used to claw useful objects out of the public domain.” Id. at 15. As discussed earlier, there are two ways to create digital design files – scanning and creating a CAD. While there is limited case law at this time, scans of useful objects have not warranted independent copyright protection. The justification for this is that “scans are not sufficiently ‘original’ to qualify for copyright protection.” Id. (citing Meshworks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008) (considering a 3D scan of a truck for use in commercials).

A useful object created in CAD software, however, may warrant protection if independent artistic elements are added to the otherwise useful object via the CAD process. A court may do a severability analysis for a given design file, focusing not on the object itself, but the contents of the file.

Creative Objects

Similar to useful objects, scans of creative objects do not create a new copyright. Contrastingly, scans of creative objects are copies of works already protected by copyright, which means anyone scanning a creative object needs the permission of the rightsholder of that object.

A creative object made in a CAD program creates a file that is protected by copyright. Copying and/or distributing the object in file or physical form requires permission from the rightsholder because a file or physical copy of the object is a copy or derivative work of the original CAD design.

Current Solutions

3D printing technology has brought the promise of allowing anyone to print anything just about anywhere, but with this comes the concern and potential proliferation of illegal copying, innocently, or willfully. It remains to be seen whether existing law will tackle the challenges presented by 3D printing, or whether this technology will warrant broad changes or new laws. In the meantime, scholars such as Michael Weinberg have suggested permissive licensing schemes for the distribution of objects and designs such as those provided by Creative Commons, and used by online 3D printing communities, such as Thingiverse. Id. at 20. Similar to the issues presented by peer-to-peer music file sharing, copyright owners may also use the Digital Millennium Copyright Act (DMCA) to issue takedown notices to individuals and host sites with infringing CAD files. Other legal scholars have additionally suggested standards and tests to help courts grapple with current doctrine and the problems posed by 3D printing. See Kyle Dolinsky, CAD’s Cradle: Untangling Copyrightability, Derivative Works, and Fair Use In 3D Printing, 71 Wash. & Lee L. Rev. 591 (2014).

 

Underneath Your Skin: Wearable Technology and Our Health

By Perri Michael

In 2014, we watched as wearable technology gained interest from millions of consumers worldwide with features that have the ability to keep count of calories burned during the walk to work, monitor blood pressure and even help maximize your workout.

With the new wave of wearable technology consumers have the ability to track different aspects of their health without having to step foot in a doctor’s office. Now in 2015, doctors are hoping to integrate this technology into their practices, and take steps towards using the technology to help chronic medical diseases such as diabetes, emphysema and congestive heart failure.           

With the good that may come from these devices, we must consider the legal issues that may become prevalent once the devices are fully released to the public. Recently, the U.S. leader in the activity tracking market, Fitbit, recalled its activity tracker, the Force Wristband, after consumers complained of skin irritation and allergic reactions due to the nickel in the stainless steel bands. Manufacturing errors such as this will lead to an infinite number of product liability suits against wearable technology producers.

Although skin irritation is a small scale injury, medical experts must use caution if they intend to use these products when treating chronic medical diseases or using them to access critical data while in the operating room.           

Due to the growing “trend” of data breaches, merchants along with the help of in-house and outside counsel, are faced with complex legal issues: data privacy and the liability risks associated with it. The recent accounts of data breaches stem from retail outlets such as Neiman Marcus, Home Depot, Target, Ebay, and most recently, K-mart.

Although these are instances where hackers have access to personal information such as credit card numbers and addresses, the growing popularity of wearable technology gives way for third party access to consumer health records. Consumers should be cautious given the lax privacy policies of these fitness tracker devices. The ambiguous and vague policies that most products have may leave consumer data unprotected and open for public use without their knowledge. In a Varonis article, the authors highlight the issue of how the Health Insurance Portability and Accountability Act (HIPAA) regulations have not yet reached this market, leaving unprotected health information legally shareable. See Cindy Ng, 5 Privacy Concerns about Wearable Technology, (March 11, 2014).

Wearable technology may be the latest and greatest fashion trend in 2015 that supports the consumer’s decisions to work toward a healthier lifestyle.  This new technology has the potential to assist doctors during risky procedures and expedite regular check-ups.  Consumers, however, should be weary of the potential product liability and privacy issues that may come to be associated with wearables’ expected billion dollar industry.

Let's Get Personal: Is Wearable Technology Creating a New Category of Personal Information?

By Elisabeth Schiffbauer

The rise of smart devices in recent years has transported technology and Internet usage from offices and homes to bags and pockets. Now, with the development and introduction of wearable technology, Internet access and technological computing will be ubiquitous as it becomes further integrated into our environment.

What is Wearable Technology?

Wearable technology “encompasses innovations such as wearable computers or devices.” Emma Poole, The Brave New World of Wearable Technology: What Implications for IP?, WIPO Magazine (June 2014). Currently, the existing wearable technology market is primarily comprised of smart glasses, watches, and fitness bands.  Many of these interact with smartphones and tablets via apps to track users’ sleep, health, and movement patterns. This constant monitoring via smart devices, apps, and wearables has additionally inspired the health trend, the ‘quantified self’. Gary Wolf: The Quantified Self, TED Talks (June 2010).

As opposed to other smart devices such as phones or tablets, wearable technology is personal. Other devices such as tablets may be shared among several users, but wearable technology may be specifically designed or adapted to a single person. “Wearable technology is not fixed to a particular location, but rather, a particular individual.” Roland Mathys, Legal Challenges of Wearable Computing, 6 (2014). Unlike other devices that may be used during the day or work hours, wearables are constantly operating (or are ready to operate) at night, and during personal or intimate settings, such as taking a shower. Highly attentive to their environment, wearables monitor and observe their location, collect information, and record their surroundings, generating vast amounts of data.

While wearable technology has brought the promise of instant data, particularly regarding health, increased monitoring and the production of new data is raising privacy and protection concerns.

       

Legal Implications of Wearable Technology

        

Generally, information or a combination of information that can identify an individual is considered personally identifiable information (“PII”) and warrants protection. This includes, but is not limited to an individual’s name, social security number, biometric records, and medical, educational, financial, and employment information. Currently, there is no comprehensive legal protection for personal information in the United States, only a patchwork of laws that apply to specific areas. With wearable technology, the creation of a personal profile is easy.           

The existing wearable market is dominated by the fitness and health industry. Information collected from an intelligent watch, for example, may capture data relating to heart rate, location, and calories burned, but may also capture additional data relating to an individual’s medical history or records, through the monitoring capabilities of the device, or the manual entry of the wearer. This information is stored by the wearable maker or a third party. Given the social-networking aspects of some of these devices and their relative apps, some of this information may also be uploaded, stored, and shared in the Cloud.

Virgin Atlantic rolled out their pilot run in June of 2014 of issuing staff at Heathrow airport Google Glass, to keep first class passengers up to date on flight information, weather, and even local events at their destination.  Some of the information used in this application of wearables may be considered sensitive information. For example, if you are Jewish and request a Kosher meal, your religious affiliation may be revealed.

Over the past year, banks and retailers have struggled with protecting business and consumer information from large data breaches. The advent of wearable technology has created a Pandora's box, widening the scope of available sensitive information in need of protection. Companies and individuals should take precautions in protecting their information, and wearable devices should allow users to edit, protect, and encrypt their information. Another question being asked regarding this information is – who owns it? Experts at WIPO have gone as far to ask whether personal data, or “life data” will become copyrightable.