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June 12, 2012

You Can Model Anything (Just Not Legally)

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Posted by Alan Wexelblat

An "epic and surreal legal battle" is slowly taking shape out there in IP-land. If you are as ancient as I am, you remember days before photocopiers made it possible to reproduce any book or printed page quickly, cheaply, and en masse. When photocopiers got cheap enough and widely enough distributed the inevitable happened - people photocopied their butts. Wait, no. I mean, yes, they did that, but they also did stuff that had IP owners tearing their hair out in frustration. Nobody photocopies novels and resells them, but teachers would put together course packets containing hundreds of pages of material photocopied from a variety of sources.

At first, nobody thought about paying for all that copying, even though getting the important chapters for free in your course packet meant you didn't then have to buy the book. There was a time when mass photocopying was seen as the worst threat to publishing. Eventually, things settled out. Universities and others worked out licensing deals. Students had to pay for course packets and some of that money flowed back to publishers who didn't get as much as if everyone had to buy every book, but they did get something. Copying went from being an unholy terror to an understood devil we live with.

Fast forward to the 21st century, and along comes Makerbot, and a hundred more like them. These home machines let you print new objects, some of which didn't exist before. Others, depending on the digital models you load in, can be exact replicas of existing objects that are covered by things like patents. This is almost certain to engender a nightmare similar to that of the early photocopy machines, particularly as new versions of 3-D manufacturing machines are going to have scanners that let you start with an object and generate a copyable model file on the spot. Three-D printing will become the new photocopying.

As Clive Thompson describes in the above-linked article for WIRED, the problem right now isn't so much the machines: it's that people create and share their design files. Those files allow one person to empower other people to make many copies. Even though those copies may be used only for individual purposes, the people whose objects are being copied claim infringement. If I can print up my own Warhammer figures for cheap, why would I buy the Games Workshop originals? You can see why GW and others want this stopped.

The question, then, is who is at fault for infringement. The answer is not obvious and as with all new technologies I expect this one to be thrashed out in court. One possible target would be the person who created the file. Another would be the sites (e.g. 3D Model Sharing) where the files are posted. In the case Thompson describes, the site Thingiverse received a DMCA takedown notice. I'd bet you could make a good case that this was an inappropriate use of the DMCA.

The problem is that the file isn't itself a copy of anything. It's an original work. Posting a design file isn't the same as posting a track I ripped from a CD. The file, if used in a certain way, can produce an infringing object, but I cannot see how Games Workshop could claim patent protection for that file. I'm reminded of the many faces of DeCSS where the movie industry tried to put a stop to every possible way that the DeCSS code could be expressed. Model files are code and code is infinitely malleable. Maybe GW claims some kind of contributory copyright infringement and that's the basis of their DMCA notice, but that's new legal territory as far as I know.

If you accept that the file (code) itself isn't a violation of the object IP owner's trademarks, patents, or copyrights then you're left with two options: go after the machines or the end users. Going after the machines is a losing plan; it would essentially recapitulate the Betamax argument and it would be trivially easy to show that these machines have substantial non-infringing uses. Finally, you don't want to be in the business of going after the end users, unless you're batshit insane like the Cartel and think that suing your customers is a winning business model. Given that most people are not that level of insane, I think we're going to see a continued targeting of (easily intimidated) model-makers and reluctant cooperation by the sites that post the files. Nobody wants to be the next Megaupload test case.

This may discourage or slow the growth of some sites, but since there's already model-sharing on the P2P networks I don't think it's likely to have a huge impact. There needs to be some kind of grand agreement and that's not likely to come soon. Thus, court cases.

(Full disclosure: I'm friends with Sindrian Arts, a company that is trying to bring industrial-scale machinery (a CNC router) down to personal size and price. This machine, like Makerbot and others, could be involved in this brewing legal battle.)

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