Let’s start this post with a lawyerly caveat. Everything on this site is my own personal opinion and should not be attributed to my employer or anyone else.   While that’s always true, this post is super thinking-in-progress-y so it seemed wise to repeat that.  Plus I’m not even a pretend product liability lawyer so keep that in mind.

For many people, IP is the first thing that comes to mind when they imagine ways for 3D printing to get into legal trouble.  It certainly was for me, and I think that’s more or less right.  IP issues are coming first in the 3D printing world.

However, if you give people a few more minutes, the second thing that comes to mind is often product liability.  And rightly so - product liability is a big area of law and 3D printed things can hurt people (because, you know, “things” as a product class can hurt people).

However, thinking about 3D printing and product liability isn’t easy.  Modern product liability law developed along with mass manufacturing and the structure of mass manufacturing is build into its underlying assumptions that ground modern product liability law.  A technology that reintroduces variability, customization, and distributed manufacturing into product design and manufacture runs counter to much of product liability’s worldview. Before you even get to the rules, 3D printing just doesn’t fit into how product liability law sees the world.

Furthermore, product liability is not necessarily prepared for a big shift.  Everyone involved in copyright law has experienced (is experiencing?) a fundamental shift in its practice in the last twenty years.  While that shift has not been as extensive in patent and trademark law, those legal worlds are close to copyright.  At a minimum, that gave them a front row seat to the change.  Like it or not, IP lawyers, policymakers, and advocates are emotionally prepared for seismic change.

In contrast, product liability has been on a relatively stable trajectory for decades. This isn’t to suggest that it has been unchanged - there have been plenty of important shifts and big decisions.  But when compared to an area like copyright its basic assumptions and ordering principles have been remarkably static.  That may mean that the people who make up the product liability policy world are less prepared for a big change.

One way to think about the forces driving these changes is to lay out the contrasting world views of traditional product liability and the new model exemplified by companies like Shapeways.

Traditional Model

  • Professional Designers. With modern mass manufacturing, products are designed by individuals or teams with a deep understanding of material properties, tolerances, and  other relevant considerations.  They are trained to anticipate potential use problems and incorporate solutions into the design.
  • B2B Manufacturing Relationship. Once those designers finish the design, they contract directly with a manufacturer.  The manufacturer understands what they are manufacturing and establishes manufacturing and monitoring processes oriented towards the purpose of the object.
  • QA Testing Fit for Purpose.  Because both the designer and manufacturer understand what they are manufacturing and how it will be done, they can collaborate on a testing regime oriented towards the anticipated use of the object.
  • Mature Insurance and Contract Umbrella.  Each party is insured and risk is contractually allocated in line with well established industry norms.

New Model

  • Designers of Mixed Backgrounds.  While some designers in this new model are trained engineers, plenty of them are not.  Their skill set may have blind spots and shortcomings that they are not aware of and that do not immediately and obviously manifest themselves in their work.
  • Arms-Length Manufacturing Relationship.  The designs can be printed by a service bureau, but the service bureau does not necessarily appreciate the actual purpose of the object.  The manufacturer uses generic 3D printing processes that are not tailored to the object.
  • Lack of QA Testing.  Since the manufacturer does not know what they are printing, they do not create tests to make sure that the finished object is fit for purpose.  Repeatability in 3D printing is not up to the standards of traditional mass manufacturing, so the designer may have a limited understanding of the characteristics of a specific model shipped directly to a customer.
  • Immature Insurance and Contract Umbrella.  The process is full of players who may not be insured with an eye towards product liability.  Contracts do not necessarily allocate risk along well established industry norms.

This does not mean that the 3D printing-enabled ability for an individual in their basement to sell physical products to the world is doomed.  Nor does it mean that we should scrap the existing product liability regime because this new model isn’t a perfect fit out of the box.

Instead, as I tried to outline in my response to Adam Thierer’s proposal for maker immunity, it means that we are at a moment where it may make sense to rethink parts of the existing product liability regime.  It is worth trying to understand if the goals of product liability  - to create incentives for people responsible for goods to make their goods safer and to compensate people who are injured by goods - can be advanced in a way that does not require every player in the design-build-distribute chain to be a commercially and legally sophisticated entity.  

Obviously it is way to early to know. Hopefully we are in the beginning of that discussion.

By the way, the Minnesota Journal of Law, Science, and Technology had a really great symposium on 3D printing and law in March.  I’d recommend the entire thing if you are interested, but they did an entire panel on product liability where people who actually know product liability work through some of these issues.

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Published on November 01, 2018