Intellectual Property Litigation



3D Printing, Copyright Challenges, and the DMCA

2/12/2014 Articles


The conventional photocopier makes copies of two-dimensional documents, and computers permit replication of digital audio and video files.  Now three-dimensional (“3D”) printers can replicate at least some physical objects.  As this technology continues to improve and its adoption increases, copyright owners and consumers will have to rethink the viability of existing copyright regulations and enforcement mechanisms, just as the music and film industries did in response to the copyright challenges posed by the introduction of the Internet-connected computer.  On the one hand, for digital content, the introduction of the Internet-connected computer facilitated the creation and widespread distribution of audio and video content.  On the other hand, it also permitted consumers to easily copy and share such content, sometimes without authorization.  In comparison to the copyright issues typically raised by digital audio and video content, evaluating copyright protection in physical objects will likely be more uncertain and complex.

After providing background on 3D printing technology and related distribution websites in Part II, Part III of this article discusses the copyright doctrines likely to be implicated to a greater degree by widespread physical replication.  In particular, when evaluating the existence and extent of copyright protection in objects, courts struggle with fact-intensive copyright inquiries, such as whether the object is useful, or whether it has ornamental features that are conceptually or physically separable from the underlying useful object.  These and other sometimes murky doctrines suggest that, in comparison to audio and video content, there is more likely to be a reasonable question as to the existence and extent of any copyright protection with a 3D object.  Part IV then discusses the Digital Millennium Copyright Act (“DMCA”) notice and takedown procedure, and how the different copyright doctrines implicated by physical objects mean that self-policing of copyright infringement may prove to be a challenging fit for the 3D printing ecosystem of design-sharing and product distribution websites.

Copyright protection, which is available to protect the original expression of an idea, is of course only one type of intellectual property protection potentially applicable to a 3D-printed object.   Utility patents are available for machines and other articles that are novel and useful, among other requirements, and design patents are available to protect the ornamental features of useful articles, such as the shape of a smartphone.  Additionally, trademark and trade dress can be used to protect designs, signs, and characteristics of visual appearance that signify a product’s source of origin.  Trademark and trade dress laws are intended to prevent consumer confusion in purchasing goods and services.  These different forms of protection, which are not mutually exclusive, have different eligibility requirements, and provide different benefits to the rights holder.  Importantly, with copyright protection, in contrast to patent protection, the rights holder does not explicitly stake out the boundary of protection as a condition for receiving the copyright.  This distinction is not often of practical significance in enforcing unauthorized copying of digital content, but as discussed below, the potentially unclear scope of copyright protection for a 3D-printed object raises additional copyright challenges for content owners, hosting sites, and consumers.