And it Begins: 3D Printing and the New Age of DRM

I suppose that there was bound to be some attempt at Digital Rights Management (DRM) when it came to 3D printing.  Any technology that potentially disrupts the intellectual property rights of companies with significant resources (in this case, manufacturers of consumer products such as toys and simple electronics) makes some form of DRM to limit that technology likely.  What’s intriguing is the nature of the DRM proposed by startup Authentise.

Authentise proposes a system that streams designs to the printer for a single use.  The idea is to have the company operate similarly to Netflix: stream the product to the customer when they need it.  Authentise even has a video explaining the basic technology: stream the blueprint to the client but never give them access to the full file (so it can’t simply get copied and shared). 

Andre Wegner, Authentise’s founder, says that he hopes to make this process simpler and easier than using unauthorized copy methods.  If nothing else, it appears that Authentise learned some important lessons from the past decade and a half of attempts of various industries to control the distribution of their content.  Instead of trying to stop infringement through technological means, Authentise aims to provide a legitimate alternative unauthorized copying of 3D blueprints.  Authentise knows that the goal is to provide an easier to use legal alternative (and even mentions services such as Spotify or Netflix as examples of that point).  This represents much better starting point than the mess that characterized the rise of music and movie file sharing earlier in the millennium (for those that remember systems like Starforce and Sony’s malware DRM programs). 

What sort of legal issues does Authentise portend?  Authentise doesn’t appear to bring up any legal issues specifically, since their technology is not intrusive or overbearing (at least at first glance).  Starting with better DRM likely does not head off issues caused by legal uncertainty.  The copyright issues alone create a significant amount of legal uncertainty likely to result in significant litigation.

Michael Weinberg, from the intellectual property Public Knowledge, addresses one possibility in a white paper: the application of copyright law to 3D printed objects.  Copyright law potentially applies in two ways.  First, the issue of whether an individual can claim copyright protection over the blueprint.  Generally speaking, a party cannot own a copyright in a design for a useful object (17 U.S.C. 101(7)).  The design for that useful object has to go beyond a utilitarian description in some manner (such as adding aspects beyond merely utilitarian features).  That creates a significant number of potential legal issues on its own.  The test for determining which aspects of a utilitarian work with artistic elements are subject to copyright and which aspects are not (called the “severability test”) is not clear.  The severability test requires that the object possess some creative elements inserted without regard for function (Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142 (2d Cir. 1987)) for there to be copyright considerations at all. However, recall last Friday’s article about the Digital Millennium Copyright Act (DMCA) and how it functions, particularly the notice and takedown system.  This system often assumes that the entity sending a takedown notice owns a valid copyright in the item mentioned in the takedown (512(f) can only be utilized by the party affected by the takedown notice).   Given the judgment call necessary to make that determination, DMCA enforcement will likely present a major issue for 3D printing websites in the near future.

The second copyright issue is related, which is how these sites can determine the distinction between a useful object and a creative one.  Useful objects (such as screws or bolts) generally do not receive copyright protection, whereas creative objects generally do.  A useful object, as stated earlier, can only receive copyright protection in its artistically unique elements, which must be severable from the object’s functional elements.  In other words, artistic elements only receive protection if they aren’t too tied into how the object functions.  That determination may not be clear to users of websites such as Thingverse, since they may not show up in the CAD file used to print the object.

As these issues indicate, there are many unresolved legal matters in regard to 3D printing.  Authentise learning some lessons from the DRM of the past should reduce the pain of some of the legal battles (and at least make for a convenient legal service from the sound of it).  There are still many issues left unresolved, and those will likely involve the long legal battles from the Napster and Grokster days.



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