While you were preparing to get your Thanksgiving on last week, news broke that one of the oldest and largest 3D printing companies, 3D Systems, was suing one of the newest, Formlabs, for patent infringement.  Besides the obvious question (is Formlabs actually infringing?), the suit raises two other interesting questions: what does it mean when an established 3D printing company sues an upstart for patent infringement?  And why did 3D Systems decide to sue Kickstarter as well?

First, a bit of background.  

3D printing has existed since the mid-1980s.  However, it was not until 2007 that Professor Adrian Bowyer created the RepRap – the grandfather of almost all “home” 3D printers available today.  Why the delay?  Largely patents.  

Once the first 3D printing patents began to expire in 2007, the community quickly embraced, and rapidly improved upon, the 20-year old technology.  In just a few years a number of companies were selling their own version of a home 3D printer.  

While each of these printers are unique, almost all of them worked in essentially the same way – they built objects up layer by layer from melted plastic.  This was because everyone in the market was building off of the same expired patents (and was limited by the same existing patents).

That was one of the things that made Formlabs’ FORM 1 printer so interesting.  It had higher resolution and used a fundamentally different technology than most existing printers.  While it was no doubt an impressive feat of  engineering, the real achievement appeared to be a feat of lawyering – how had everyone missed this hole in the existing patent wall?

3D Systems Suing Formlabs

Although there is a great deal of interesting discussion about problems with the patent system (especially software patents) and with the relationship between patents and open source 3D printers, those concerns are not necessarily relevant here. I will not pretend to be an engineer nor a patent attorney (and will update this post when I am corrected in my interpretation), but the patent in question seems to be reasonably close to what people might think of as a “regular” (non-controversial type) patent involving materials science.  The larger debate around patent reform rarely focuses on these types of patents, and no one can accuse 3D Systems of being a non-practicing entity (also known as a troll) or of hiding the fact that they own many patents related to 3D printing.

Similarly, the larger openness question does not directly apply to this case.  Formlabs may not have patented its technology, but it has not embraced openness either.  From an openness standpoint, this is essentially one closed company suing another.

All of this means that 3D Systems’ decision to sue Formlabs should not automatically make it a bad actor.  If they had a valid patent and Formlabs was infringing upon it, they have every right to sue. Furthermore, if Formlabs was able to beat all of its (consumer-grade) competitors by ignoring the patent that was keeping everyone else away from a better 3D printing technology, they should not necessarily be rewarded.

Of course, if 3D Systems loses aginst Formlabs it does raise a few questions, not the least of which are “have the home 3D printing compaines been avoiding this technology for no reason?” and “why hasn’t 3D Systems tried to sell this technology to the consumer market?”

3D Systems Suing Kickstarter

This is a bit more troubling, and could have a significant chilling effect on Kickstarter as a catalyst for innovation.  For those of you who are familiar with how websites that host third party copyrighted content work online, this section is going to sound familiar.  

Just as requiring YouTube or Facebook to review every video or post for copyright infringement would make it impossible for those sites to operate, requiring Kickstarter to review every project for patent compliance would effectively end its ability to host hardware startups.  While it is true that Kickstarter already reviews projects before they go live, that review is for compliance with a set of fairly straightforward project guidelines.  Requiring a full patent check for every hardware startup would fundamentally change the verification burden (this is not to say that Kickstarter does not have any obligations to existing rightsholders, as illustrated here).  

While retailers often deal with concerns about patent liability by demanding indemnification from their suppliers, that guarantee is near useless to a site like Kickstarter.  Kickstarter is a place for projects to find their launch funding.  Almost by definition, that means that they do not have very much money.  As a result, a promise from a project to cover Kickstarter if it gets sued for patent infringement is unlikely to be backed up by very much actual money.

In light of this, including Kickstarter in the suit could be read as an attempt to push Kickstarter away from hosting hardware startups in the first place.  Since new 3D printers are one of the most popular types of hardware startups on the site, this could be interpreted as 3D Systems trying to use its patent to cut off the flow of rivals – not just shutting down one that infringes on its patent.

Moving Forward

In many ways, this is a sad story.  It will be unfortunate if it turns out that Formlabs did not really find a way through the patent wall surrounding one of the more advanced 3D printing techniques.  It will be unfortunate if it turns out that Formlabs did manage to find a way through the patent wall but has to spend a great deal of money proving it.  It will also be unfortunate if 3D Systems’ inclusion of Kickstarter in its suit makes it harder for new 3D printers – and all hardware projects – to get funding.  

It will also be sad if it contributes to the narrative that traditional 3D printer companies are uninterested – or unwilling – to serve the emerging home market.  Sometimes these existing companies look like the old mainframe companies at the dawn of the PC age – pointing out all of the things that the new home printers cannot do, while looking past the things that they can do at a fraction of the cost of existing “powerful” machines.  

For the past year, it has looked like 3D Systems was interested in engaging the home market.  To their credit they rolled out their own home 3D printer, albeit with the same expired patent technology that everyone else was using. They did not seem interested in turning any of their still-patented technology into an affordable consumer-grade model, but they were interested in offering the home market a product. 

Now, they have not only sued a company that tried to bring next-generation technology to consumers but also the pipeline for the next-next 3D printing company.  

It is not clear what will come of this lawsuit, or even what should come of it.  As long as we have a patent system, 3D Systems has every right to defend its valid patents and Formlabs has every right to prove that it did not infringe (or that the patent is invalid).  At the same time, one could hope that 3D Systems might try and bring new options to the market, not just block others from doing so.  Furthermore, including Kickstarter in this fight, which has fueled the creation of so much hardware innovation, seems like a decision designed to alienate exactly the type of people who you might want to sell 3D printers to in the future.

And so now we watch.  This may be one of the first patent lawsuits to affect the home 3D printing market, but probably for reasons beyond Formlabs’ survival.  It could effectively shut Kickstarter’s door to hardware startups.  It could also signal that traditional 3D printing companies are more interested in suing the consumer market out of existence than cultivating it.  In any event, it is certainly something worth watching.

Today the Register of Copyrights and the Librarian of Congress announced the 1201 exemptions.  You may remember that the 1201 review is the triannual process whereorganizations, communities, and individuals request permission to circumvent Digital Rights Management (DRM) technologies that prevent them from doing otherwise perfectly legal things.  This time around, Public Knowledge requested an exemption that would allow people to rip DVDs they already own in order to transfer the movie to a device that cannot play DVDs (like a tablet).

That request was rejected.  Furthermore, the Register and the Librarian explained that they were unconvinced that space shifting was fair use at all.  That has huge implications well beyond people who want to watch the movies they own on DVD on their iPad.

“Space Shifting” is what you do any time to take a file and move it from one medium to another.  The best known example of this is probably ripping CDs to move the songs on to digital music devices like iPods.  If you think it is ridiculous that such activity is illegal, you are right.  

And the RIAA and the MPAA agree with you.  In 2005, their lawyer (now the Solicitor General of the United States) assured the Supreme Court that “The record companies, my clients, have said, for some time now, and it’s been on their Website for some time now, that it’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, put it onto your iPod.“

Movie executives agree as well.  Mitch Singer, the Chief Technology Officer of Sony Pictures Entertainment explained to author Robert Levine that the idea for the movie industry’s UltraViolet program evolved out of Singer’s own frustration with transferring movies between PCs in his home.

So do members of Congress.  Earlier this year, Representative Darrell Issa did a IAmA on Reddit.  Rep. Issa told Redditors that it was already perfectly legal to make personal copies of DVDs for their own use.

If all of this, combined with the fact that all major media management software comes with space shifting technology built into it out of the box, is not enough for the Register of Copyrights and the Librarian of Congress, then it is time to for Congress to step up.  

Public Knowledge has already proposed a bill, hosted on the Internet Blueprint,that would incorporate noncommercial personal uses into the definition of fair use.  Congress needs to pass the bill in order to make clear that the millions of Americans who have copied songs they own onto their iPods and movies they own onto their laptops and tablets are not copyright infringers.

Recently, Antonio Regalado at Technology Review identified a patent on Digital Rights Management (DRM) for 3D printing.  The patent, granted to Nathan Myhrvold’s companyIntellectual Ventures (IV), initiated a wave of discussion about DRM and 3D printing.  While this is a discussion that is worth having, the existence of the patent it not particularly relevant to it.

DRM is a generic term for a suite of technologies that, in theory, allow people to control how others use digital information.  DRM is usually applied to things protected by copyright (like movies on DVD) in the hopes of preventing unauthorized copying.

DRM is problematic for many reasons, but two are particularly relevant to this discussion.  First, almost by definition, DRM cripples the functionality of devices or programs, making themdefective by design.  As applied to 3D printing, DRM could transform a general purpose tool capable of making anything into a specialized tool that can only be used to create a handful of pre-approved items.  Such a transition at this point could cripple the growth of consumer 3D printing.

Second, and perhaps more importantly, DRM does not work.  The highest profile uses of DRM have been attempts to restrict unauthorized copying of works like music and movies (while the music industry has largely moved away from DRM, the movie industry clings firmly to it).  Despite being protected by increasingly sophisticated types of DRM, unauthorized copies of just about any movie released on DVD or Blu-Ray can easily be found online.  Since only one person needs to be smart enough to crack a given DRM in order for everyone to be able to circumvent it, DRM inevitably fails.

Unfortunately, that does not mean that DRM does not have an impact.  Although DRM does not prevent bad actors from making unauthorized copies of works, it does prevent good actors who wish to comply with the rules from making legitimate uses of them.  In this way, DRM imposes costs on consumers without granting any legitimate benefit to rightsholders.

Enter IV’s patent.  The patent appears to be quite broad, and to cover many of the ways that DRM might be implemented on 3D printers.  Does it change anything?

Probably not.  When confronted with a digital disruptive technology, many people reflexively turn to DRM in an attempt to control the disruption.  IV’s patent is not the first time someone has thought about this, and it will not be the last.

Also, the patent does not appear to represent an actual functioning DRM mechanism.  This probably should not come as a surprise.  Intellectual Ventures is widely known as a “non-practicing entity” by some and as a patent troll by others.  Their general strategy is to stake out an area and charge people to license their patents, not to actually develop technology to implement.

Furthermore, and this is important, having a patent does not allow you to force people to use the technology that you have patented.  Since the patent does not represent a way to implement 3D printed DRM, its existence does not really move 3D printing closer to a DRM world.

Finally, in some ways this patent could actually slow the adoption of DRM in the 3D printing community.  Assuming the broad patent survived a challenge in court (a big if), most people dreaming of imposing DRM on 3D printing would be forced to pay Myhrvold and Intellectual Ventures a licensing fee.  That increases the rightholder cost of using DRM, which is a good thing.

The emergence of this patent has helped raise awareness of the possibility of using DRM in connection with 3D printing.  However, that awareness raising may ultimately prove to be its most relevant impact on 3D printing’s development.

Having made it into the New York Times, it looks like it is time to talk about 3D printing and firearms.  The tl;dr version of this post is: this is an interesting development that is not really new but does provide a useful framework to start thinking about the larger policy issues around 3D printers.

Some Background

Over a year ago…

3D printers are machines that can turn digital objects into physical things.  They are general purpose manufacturing machines and, as such, the scope of “things” that they can produce is broad.  Like all general-purpose machines, they can be used to create things that one might consider beneficial to society as well as things that one might consider detrimental to society.  Without taking a position on which category firearms fit into, it probably should not have come as a surprise when, last year, parts for firearms started showing up on Thingiverse, a website devoted to sharing 3D printing files.

The initial reaction to this within the 3D printing community was decidedly mixed. There werediscussions about free speech, the responsibility of sharing files like this, and even if it was possible to make a firearm with existing consumer grade 3D printers.  Ultimately the thingiverse team decided not to take down firearms.

During the initial controversy, the source of the 3D printing designs went largely unnoticed.  This is unfortunate, because the origins of the designs will be very helpful in thinking through the policy implications of 3D printed weapons.  It turns out that HaveBlue, the thingiverse user who originally posted the part, obtained his original file from a website called CNCGuns.com.  CNCGuns is a site that is designed “to show gun enthusiasts the different types of firearms that can be manufactured using CNC (Computer Numerical Control) equipment.”  CNC equipment is the type of equipment that you might find in a standard machine shop.  

This indicates that there is a community of people who are already trading files and manufacturing firearms at home that predate consumer access to 3D printing.  In fact, they are using technology that is (currently) far more widespread and better at making firearms than 3D printers.  On its face this is neither a good nor bad thing.  However, it does suggest that we already have a way to think about what it means when people can create firearms at home.  After all, they have been doing so for some time.

This July

The conversation evolved a bit this summer when HaveBlue announced that he had successfully fired the 3D printed gun.  While only part of the gun was actually 3D printed (the “lower”) this was still big news.  As far as anyone can tell, this was the first example of someone 3D printing and firing a firearm.  Although HaveBlue was not using a consumer-grade 3D printer, because of the age of the machine that he did use and the pace of innovation in the consumer area it largely put to rest questions about whether or not it would be possible to use consumer-grade 3D printers to build working firearms.

This August

Hot on the heels of HaveBlue’s successful firing, a group called the Defense Distributed launchedthe Wiki Weapon Project.  In a video on the crowdfunding site Indiegogo, the group’s members requested $20,000 to develop and freely release files that would allow someone to print a firearm on a consumer-grade 3D printer.

This September

Although Indiegogo pulled the project from its site, the Wiki Weapon Project announced that it has succeeded in meeting its $20,000 fundraising goal.  The bulk of this money was earmarked to lease a commercial-grade 3D printer from the company Stratasys.

This October

Upon learning about the Wiki Weapon Project, Stratasys cancelled the Wiki Weapon Project’s lease and reclaimed the printer.  At this point, the Wiki Weapon Project is presumed to be looking for a new printer.

What does this mean?

While this is undoubtedly a high profile incident, it is not likely to be the last story where people raise concerns about something being produced by 3D printers.  In light of that, it is probably useful to have a general framework to use to analyze these controversies.

The first question that we should ask is “is this actually new?”  In other words, is 3D printing allowing people to do something that they were unable to do before, or is this simply getting attention because someone got around to doing it with a 3D printer?

In this case, the answer appears to be “no.”  Remember, the source of these files is an existing community of people who use machining tools to create firearms.  These machines are computer operated and can make objects out of metal.  While attaching “3D printing” to the activity might raise its profile, presumably our national firearms policy already recognizes that people can make weapons at home and has structured rules accordingly.

The second question is “even if it is not new, does it fundamentally change the existing activity?”  Again, in this case the answer seems to be “no.”  People were downloading files used to make firearms on automated (or semi-automated) machines before they had access to 3D printers and, at this stage, it is hard to see how this changes that activity.  I suspect that there are still many more CNC milling machines in this country than 3D printers.  

The third question is “is it possible to fundamentally change the existing activity in the future?”  The answer to this question, as it will often be, is “maybe.”  Today more people have access to CNC milling machines and machining shops than 3D printers, but you could certainly imagine a future where that was not the case. A world where it is easy to download firearms files and most people have access to 3D printers (still an if) might change the existing dynamic enough to justify developing new policies.

But that is the real challenge with all policy connected to 3D printing (and to emerging technologies more generally): being able to imagine a way where a technology could be misused in the future is not a sound basis for policy, and certainly not a sound basis to limit its growth.  

Imagining a futuristic 3D printing dystopia and then trying to create policies to stop it will inevitably be a counterproductive exercise for at least two reasons.  First, the imagined dystopic future will never actually happen.  If we were good at predicting how new technologies would impact society we would all be rich.  That makes new legislation designed to prevent the bad future a waste of time at best.

Second, and more problematic, is that any legislation aimed at preventing an imagined future is much more likely to block unexpected positive developments.  We do not know how 3D printing will actually impact society, but we can be fairly sure that today’s projections will seem laughable 10 or 20 years from now.  Laws enacted during a time of 3D printing anxiety are much more likely to prevent good things than block bad things.

Looking forward

This does not mean that we need to wait until people are doing troubling things with 3D printers before doing anything about it.  However, we should at least understand how those troubling things will actually play out before we take steps to limit what people can do with the technology.

It is tempting to assume that every question raised in the context of 3D printing is somehow a question of first impression that has not been considered before.  However, in reality that will rarely be the case.  Most of the questions that are raised in the context of 3D printing have been raised before and they have reasonable solutions.  One of the greatest challenges presented by the growth of 3D printing will be to recognize when a question is truly new, and when it is just a complicated problem that has been around for years.

image: Thingiverse user HaveBlue.

Last month I attended the third Open Hardware Summit in New York City.  With the growth of the community and the emergence of products that target people beyond core open source hardware enthusiasts, there was a great deal of discussion about what it really means to be open source hardware and also how to be both open source and competitive in the hardware world.  This post expands upon something that I only had time to briefly touch upon during my presentation.

At the end of my talk at last month’s Open Hardware Summit, I urged the community to consider that open source hardware may be more of a political and cultural movement than a legal movement.  This was an admittedly fleeting reference to a discussion that will necessarily be a large one, so I want to use this blog post to begin to expand upon what I meant.  The goal of this explanation is not to provide answers – largely because the answers are not mine to provide, and even if they were I do not have them – but rather to attempt to bring a useful framework to the discussion.

Legal Underpinnings of Open Source Software

Let me first lay out some of the critical elements of the open source software (OSS) movement, which is often pointed to as a model for the open source hardware (OSHW) movement.  While OSS is undeniably a cultural and political movement, it is also a movement firmly grounded in the law.  Specifically, OSS takes a legal regime that can restrict sharing (copyright) and use it to promote sharing.  It accomplishes this through a legally binding license on the code.

Critically, this slight of hand works because code is protected by copyright.  More importantly, code is automatically protected by copyright.  The coder does not need to apply or register in order to obtain copyright protection on the code (although there are good reasons to register a copyright) – the mere act of writing the code means that it is protected by copyright. That copyright gives people something to license and a legal way to enforce that license.

As one of last month’s speakers (I believe Andrew Katz, but if someone remembers differently I’ll update this) helpfully explained, a license allows you do to something that you could not do anyway.  Code is protected by copyright.  Absent anything else, copying that code is a violation of copyright.  A license gives you permission, subject to certain conditions, to make a copy of that code.  Because the code is protected by copyright and licensed under conditions, copying the code in a way that violates those conditions is copyright infringement.  If someone infringes on your copyright, you can take them to court. 

This legal enforceability allows the OSS community to impose its own internal rules on people outside of the community.  Social shaming and recognition of achievement is probably enough to make sure everyone in the OSS community plays by the rules, but they are less effective for people who want to use the code but do not care about the community’s opinion.  Since OSS is useful and usable for people outside of the OSS community, this legal enforceability is critical to protecting the ethos of OSS as it comes into contact with the wider world.  

(Of course, it is possible to engage in profitable, creative industries without this sort of legal protection.  The fashion industry is a great example.  For an exploration of these industries check out Kal Raustiala and Christopher Sprigman’s new book The Knockoff Economy.)

Legal Underpinnings of Open Source Hardware

Hardware is different from software in many ways, but one of those ways is how it is, and isn’t, protected by intellectual property.  As a general matter, copyright does not protect functional objects – objects that do things.  Copyright may protect decorative elements, or specific patterns on a circuit board, but by and large most OSHW projects and products (especially as you move away from embedded electronics) are things that do something, and thus not eligible for copyright protection.  As a result, it is all but inevitable that critical elements of an OSHW product are not protected by copyright.

That does not mean that there is no protection for OSHW.  Trademarks can be protected.  However, trademarks cannot protect the functional elements of the product either.

This leaves patents.  For the purposes of this discussion, patents differ from copyright in a few critical ways.  First, you must affirmatively apply for a patent – they do not exist simply by creating an object.  Second, there is a burden to show utility, novelty, and nonobviousness.  Third, and this may be the most important, actually getting a patent is an expensive and time-intensive process.

This combination – copyright that does not protect function, trademark that needs to be applied for and does not protect function, and patents that need to be applied for and can protect functions – means that most hardware projects are “open” by default because their core functionality is not protected by any sort of intellectual property right.  Of course, in this case “open” means that their key functionality can be copied without legal repercussion, not that the schematics have been posted online or that it is easy to discover how they work (critical elements of open source hardware).

Licensing Open Source Hardware

This difference has a critical impact on licensing open source hardware.  There is nothing preventing an inventor from applying an open source hardware license to her creation.  However, for that license to be legally meaningful, she must have a right that she is actually licensing to users.  In the absence of a patent on the project, it is unlikely that she will actually be licensing anything critical to someone who wants to reproduce or build upon the creation.

This only matters if someone violates the license.  As described above, if someone copies OSS and refuses to comply with the terms of the license, that person is a copyright infringer and can expect to be brought to court.  In contrast, if someone copies OSHW and refuses to comply with the terms of the license, that person will probably be in the clear.  Since (again, in most cases) there was no intellectual property protecting the functionality of the product, there is no intellectual property right being infringed in the violation of the license.

One response to this – to try to patent every OSHW project – is simply impractical.  Even if we assume, simply for the sake of argument, that every OSHW project could meet the utility, novelty, and nonobviousness requirements of patent (something that is highly unlikely), it is unreasonable to expect every OSHW project to pay the thousands of dollars it costs to shepherd an application through the process simply to be able to turn it over to the community.

Another – to make it easier to patent OSHW projects – strikes me as ill conceived.  No matter how good the intentions, creating additional intellectual property rights or making it easier to obtain intellectual property protections rarely advance to cause of openness.  It is almost inevitable that any such process would quickly be used and abused by people outside of the OSHW community in ways that the OSHW community would live to regret.  

Where does this leave us?

First, to be clear, none of this means that OSHW is doomed or a worthless endeavor or unable to scale.  It simply means that its expansion will require critical, creative thinking.  Moreover, open source hardware is more than a license.  It is a commitment to building products that people can access, repair, and improve, and to building documentation that facilitates these goals.  Nothing about the legal status of an open source hardware license changes that.  Additionally, nothing about the legal status of an open source hardware license prevents an organization (say, theOpen Source Hardware Association) from creating a certification logo, protected by trademark, that companies that comply with open source hardware principles can affix to their products.

I believe that companies coming out of the OSHW community truly do have a desire to be open.  I also believe that they are honestly trying to find ways to compete in a broad marketplace made up of people who do not care about openness and competitors uninterested in playing by “the rules.”

The result is that they are trying to thread the needle, maintaining as much openness as possible while not making it easy for competitors to simply clone them.  Right now that path is far from clear.  Inevitably, there will be missteps along the way.  It is also possible that some “open” companies abandon their commitment and simply betray the community.

The challenge is to learn to distinguish a misstep from a betrayal while recognizing that most choices do not have straightforward right or wrong answers.  OSHW is not OSS.  The “right” license can have tremendous value as a signaling device, as a public commitment, and as a way to raise the profile of openness.  However, in many cases, the “right” license will be meaningless from a legal standpoint.  To me, the challenge of the next year of OSHW is to find a way to scale beyond the core OSHW community, maintain a meaningful commitment to openness (whatever that ultimately means), while all the while recognizing that the license itself is largely symbolic.

I am not going to pretend that is easy, or that I even have an idea of how to accomplish it.  At this point, all I really hope is that everyone is coming to this discussion with a realistic understanding of its terms.

Want to learn more about open source hardware?  In addition to the Open Source Hardware Association and the Open Hardware Summit, earlier this year Public Knowledge held OH/DC: Open Source Hardware Comes to DC - check out audio and video here.

Image: Catarina Mota.