3D Printing and Copyright Protection: Lessons from the RIAA

By Olivera Medenica, Tiffany Pho & Perri Michael

3D printing has undoubtedly captured the attention of all audiences, most recently, Congress and the White House. Representative Bill Foster recognized the emerging market in 3D printing by proposing a bill establishing December 3, 2014 as the “National Day for 3-D Printing.” On January 9, 2015, President Obama visited plastics compounder Techmer PM’s 3D printing site in Tennessee, the home of the country’s newest manufacturing innovation hub. There, the President touted the economic advantages of 3D printing and its potential for growth, stating “…we're potentially able to get cutting-edge research and design to market faster, and businesses are intimately involved in the process of figuring out how these things can be applied in ways that are really going to boost the economy and, in some cases, create entirely new industries.” One of President Obama’s goals during his term was to ensure that America was competitive and an attractive place for businesses. However, the growing interest of 3D printing does not come without some drawbacks.

I. The DMCA’s Impact on File Sharing

The music industry’s struggle with illegal downloads spans over a decade and has captured our collective attention with anecdotal stories highlighting the vulnerability of alleged infringers.  While content owners are undeniably within their legal right to protect their creations, the public relations backlash of doing so is not negligible.  Who could forget the scathing criticism of the RIAA’s aggressive pursuit of a certain Gertrude Walton, who turned out to be an eighty-three year old woman – apparently accused of illegally downloading over seven hundred songs.  Ms. Walton passed away shortly after the RIAA issued a subpoena against her, resulting in a flurry of unsavory headlines painting the RIAA as an aggressive bully with no regard for humanity (headlines included “I sue dead people” and “The RIAA sues the dead”).  There are more stories, perhaps not as egregious as Mrs. Walton’s, that reflect a vocal public discontent with content owners protecting their intellectual property.  Perhaps the music industry’s struggles with, and ultimate inability to control, its own content can serve as an opportunity to reflect upon the future of 3D printing and copyright protection.

Part of the reason the RIAA did so poorly in the public eye was the result of its aggressive pursuit of a special subpoena power that its lobbyist had slipped into the Digital Millenium Copyright Act (DMCA) in 1998.  17 USC 512(h) entitles a copyright owner to issue a subpoena to an ISP in order to obtain the identity of a subscriber accused of copyright infringement.  In other words, the RIAA could, under the DMCA, obtain the identity of an alleged infringer without filing a lawsuit, with no requirement of proof, and no judicial oversight.  The RIAA flexed its DMCA muscles and issued thousands of subpoenas under the DMCA clause.  In 2003, however, the DC Circuit in RIAA v. Verizon limited the DMCA’s scope by ruling that DMCA subpoenas were only available where the allegedly infringing material was stored on the ISP’s own computers.  This requirement created a problem for the RIAA since peer-to-peer file sharing sites did not store infringing material.

While the RIAA v. Verizon decision abruptly brought the RIAA’s subpoena powers to a grinding halt, it did nothing to stop the RIAA from pursuing infringers.   Lawsuits were filed indiscriminately against the old, young, infirm and powerless – or at least that was the painfully public portrait that was repeatedly painted in the media.  At the end of the day, the music industry was powerless to restore itself to its 1997 heyday, despite sophisticated legal tactics. 

II. The RIAA and 3D Printing

As 3D printing is steadily gaining popularity and private individuals begin to gain access to at home capabilities to print 3 dimensional objects, we can notice many similarities with the RIAA’s struggles of the past decade.  An IP owner will attempt to prevent the unauthorized reproduction and transmission of CAD files – these files would enable whoever downloads them to reproduce a 3D object.  CAD files can be shared just as easily as songs or movies, as they are just an electronic file.  Perhaps CAD files and 3D printing presents an even greater problem for content owners in that someone could just as easily recreate the CAD file, and resulting 3D object, from scratch using a “sensor” – or the equivalent of a 3D scanner.  Which is obviously not the case for music or film.

The RIAA’s struggles have cleared the path for a willingness to find solutions, rather than stick to ultimatums.  Although the take-down notices serve a sufficient temporary solution to the unwarranted copying of designs, content owners need to examine alternatives to avoid the potential court battles to come.  Some of the discussion has focused on how IP owners could try to create authentication devices within their materials that will help verify counterfeits.  By embedding some form of authentication into the 3D printed materials, 3D printers could distinguish authentic products from counterfeits.  This solution could potentially reduce costs of litigation as there would be clear evidence of counterfeiting activity. Others have advocated for a pay-per-print streaming program where companies could send a special copy of the design file directly to the 3D printer, rather than to the customer, allowing the company to monitor printing success and to block unauthorized copies.

III. Solutions for the Future

The strongest response to copyright infringement in 3D printing would be to approach Congress and demand an adoption of laws that would impose harsh punishments on infringers and establish licensing requirement for printers. The White House has already recognized the need for 3D printing regulations and announced the formation of the National Additive Manufacturing Innovation Institute in Ohio pooling $30 million to assist the Commerce Department in developing universal standards for additive manufacturing.

Although the lawmaking process may take time, consumers and IP owners should make it their priority to spread awareness about the dangers of file sharing through the Internet (faulty product design being the most dangerous). Since most consumers are unaware of the harm in illegally downloading materials from peer to peer sites, IP owners should prioritize public education in order to uphold the integrity of the market. 

The rise of 3D printing may bring benefits and downfalls, but with the collaborative efforts of Congress and the public, IP owners will make gains in their ability to fight against counterfeiters across the globe.