Coffee Cups, Pirates, and Handguns

Sailing in the Uncharted Waters of 3D Printing

In 1974, a joke written by David Jones in the New Scientist unknowingly predicted the development of an innovation that decades later would be called “the third industrial revolution.” Though his proposal imagined a laser that when shined through liquid plastic monomer caused it to solidify was intended to be tongue-in-cheek, it was only three years later that a patent would be granted for the same idea. The full impact that 3D printing will have on our society has yet to be seen but recognition of the technology’s significance has spread from academic circles and begun to permeate discourse within the general public. It has been said that while the technology has the potential to change industry, end world hunger, and provide a new platform for creativity, it also stands to become Pandora’s box, unleashing the capacity for individuals to produce deadly weapons and other objects seen to be socially immoral. Indeed, 3D printing has the potential to raise a myriad of legal issues that spread across a number of areas of regulation including national security, food and drugs, environmental, and even treaties and international agreements. It also stands to be the impetus for current manufacturing models to be overturned on their head.

Just as the introduction of the Internet sparked a transformation whereby information was democratized, we are currently facing what could potentially be seen as a paradigm shift where there is a complete democratization of manufacturing. However, what is truly revolutionizing the world around us is the combination of these two. Where the Internet has provided the public with access to knowledge, 3D printing takes this one step further and allows this knowledge to transcend the digital realm by transforming itself into tangible products. In essence, we are posed to see the development of a new self-sufficient public as it is able to consume the products of its own creation. Individuals will adopt the role of the manufacturer through a viable alternative to the model of mass production. We are already witness to a culture that embodies self-sufficiency through the open sharing of ideas and knowledge. It is currently characterized by notions of customization and individualization; the idea that people can “make what they can’t buy at Wal-Mart.”

Without the previous barriers to entry, there is a risk of disruption to the previously established systems of control. The ability to make products as we need them has a fundamental impact on the operation of economies of scale and reduces the importance of mass production. It has been suggested that 3D printing could have the effect of reversing current models where production of goods has been shifted to countries where labour costs are comparatively lower. The theory is that the technology has the potential to bring manufacturing back to developed countries as this advantage disappears. In fact, in 2012, President Barack Obama spoke of the hope that 3D printing would “strengthen American manufacturing” and ensure that “manufacturing jobs of tomorrow take root not in places like China or India, but right here in the United States of America.” These machines have the capacity to perform work now done by lower skilled workers overseas in ways that are more cost effective to larger companies. The advantages to be gained from this shift go beyond job creation and its effect on the local economy; it also allows companies to enjoy the benefits of holding lower inventories, reducing shipping and environmental costs, and mitigating other risks associated with offshore work. In fact, several pharmaceutical companies have sought to restructure their manufacturing models so that small regionalized plants are able to respond more quickly to local demands.

The increasing accessibility of 3D printing also raises serious regulatory questions. There is a concern over the safety and quality of the products being produced within the privacy of individual’s homes. This fear received international attention back in 2012 when Cody Wilson, a University of Texas law student, produced the world’s first 3D-printable handgun. Wilson’s actions quickly prompted a national discussion of the policy and regulatory issues surrounding technological developments that move faster than the law is able to respond. By his own admission, Wilson sought to “demonstrate how technology can circumvent laws until governments simply become irrelevant.” This sentiment touches upon a legitimate concern in the minds of the public. In response, lawmakers in the US began proposing legislative changes that address these concerns. In November 2013, the City Council of Philadelphia enacted the following ordinance: “No person shall use a three-dimensional printer to create any firearm, or any piece or part thereof, unless such person possesses a license to manufacture firearms under Federal law, 18 USC § 923(a).

Attempts to prohibit the 3D printing of firearms have focused on declaring the source code to create such weapons as unprotected freedom of speech.  The argument suggests that if source code is deemed to not satisfy the standard of what may be defined as speech, it could be treated in a similar fashion as the possession of child pornography.

This line of argument raises questions about the nature of speech that requires an appreciation of the inherent duality between expression and function in source code. To be considered protected “speech,” the expression must be sufficiently imbued with elements of communication to merit protection. However, where source code simply acts as a written set of instructions, it is hard to see evidence of sufficient expression.

It seems unnecessary, however, to find remedy through these distortions of the criminal law. Attempts to stymie the dissemination of controversial source code by denying it protection as free speech appear to be based on a solution to the matter that goes beyond addressing concerns for the safety of the public. It is overreaching to suggest that mere possession of source code that has the potential to create a dangerous weapon should be equated to possession of that weapon itself. This logic falls victim to the basic fallacy of necessity. Source code produces dangerous weapons. John possesses source code. Therefore, John produces dangerous weapons. These sentiments speak to a larger issue whereby stakeholders are using these safety concerns and other distractions in an attempt to curtail the disruptive influence 3D printing has on the status quo. Yes, the technology gives individuals the ability to print drugs, sex toys, and dangerous weapons; but the danger in allowing the debate to become overshadowed by these potential negative consequences prevents an innovative transformation that has the potential to reshape our culture for the better.

Another particularly interesting aspect of 3D printing is its capacity to intersect with all forms of intellectual property: patents, trademarks, copyright, industrial designs, and even trade secrets. Rarely before have we seen a technology with the potential for users to create objects so comprehensively covered by IPRs. Previously, access to 3D printers was limited to industry and out of reach for the general public. As the patents on this technology begin to expire, what previously cost $25,000 now sells for roughly $1,300. As these financial barriers disappear, access to the technology has increasingly become available to the public. This has raised concerns about the impact this rapidly developing field of technology will have upon intellectual property rights. The fear is that the ability to regulate and enforce these rights will be diminished as the capacity to produce infringing objects becomes ubiquitous. Comparisons have been drawn between the effects of 3D printing on patents and Napster’s effects on copyright. In an article published in the Georgetown Law Journal, professors Deven Desai and Gerard Magliocca suggest that 3D printing “will do for physical objects what MP3 files did for music.”

. . .the idea that people can make what they can’t buy at Wal-Mart.

In our increasingly technocratic society, social media has allowed for a shift in the traditional balance of power. These new online communication models have given rise to  a culture defined by active participation and expression. As a result of this new philosophy taking hold on a new generation, we have increasingly seen the derogation of intellectual property rights. In fact, some extremist thinkers have speculated that we are in the midst of a technical revolution that is set to bring about the abrogation of intellectual property law as a whole. While the concerns that give rise to these fears might prove to be well-founded, the notion that 3D printing will render intellectual property rights irrelevant and obsolete can more accurately be described to be academic fear-mongering than a potential reality. Giving credence to this view discounts an established institution’s ability to respond and adapt to a changing environment. Similar predictions were made with respect to copyright law in the music industry as P2P sharing networks rose in popularity on the Internet. A stubborn and ill-conceived response from rights holders certainly didn’t help to dispel the threats they faced. Notwithstanding these tactical blunders, the industry was eventually able to piece together some semblance of a new business model that appropriately responded to the ways in which new technology had reshaped the demands of the market. Online services developed which focused on access to rather than ownership of creative works. Sites like Apple’s iTunes were the first to reimagine the way in which intellectual property could be commercialized after the effect of digitization. By identifying and responding to this new unconventional understanding of proprietary information, the doors to a world embracing the democratization of knowledge had been opened.

Finally, what is most fascinating about this area of technology is how little attention it has received within academic circles in the legal community. If we are truly on the cusp of what is shaping to be the “third industrial revolution,” it seems remiss not to develop a more substantive discourse that contemplates the impact 3D printing will have upon our society’s legal rights and obligations. What currently exists has only touched upon the surface of what begs to be considered.