"Patents, Meet Napster: 3D Printing and the Digitization of Things"
Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice. 3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain— sharing the plans on how to make something in exchange for exclusivity—may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now.
Deven Desai is a law professor at the Thomas Jefferson School of Law and recently completed serving as Academic Research Counsel at Google, Inc. As a law professor, he teaches trademark, intellectual property theory, business associations, and information privacy law. He is a graduate of the University of California, Berkeley and Yale Law School. He has also spent year as a Visiting Fellow at Princeton University’s Center for Information Technology Policy. Professor Desai’s scholarship examines how business interests and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His articles include Speech Citizenry and the Market: A Corporate Public Figure Doctrine 98 Minnesota Law Review __ (2013) (forthcoming); Bounded by Brands: An Information Network Approach to Brands, U.C. Davis Law Review (2013) (forthcoming); Beyond Location: Data Security in the 21st Century, Communications of the ACM (January, 2013); Response: An Information Approach to Trademarks, 100 Georgetown Law Journal 2119 (2012); From Trademarks to Brands, 46 Florida Law Review 981 (2012); The Life and Death of Copyright, 2011 Wisconsin Law Review 219 (2011); Brands, Competition, and the Law, 2010 Brigham Young Law Review 1425 (2010) (with Spencer Waller); Privacy? Property?: Reflections on the Implications of a Post-Human World 18 Kansas J. of Law & Public Policy (2009); Property, Persona, and Preservation, 81 Temple Law Review 67 (2008); and Confronting the Genericism Conundrum, 28 Cardozo Law Review 789 (2007) (Sandra L. Rierson, co-author).