The Potential of Thingiverse vs. The Threat of History

Authors: Andrew Lomeli & Sasaki Masanori

Thingiverse is a popular website where users can upload original digital design files that can be created by personal 3D printers and laser cutters. While users generally rely on public and Creative Commons licenses, they can choose whichever type of license to apply to their design. The site is most popular in the 3D-printing community, and it currently hosts over 15,000 designs. The open-source nature of the site further allows users to build off of each other’s designs, inevitably resulting in the creation of many mashup and collaborative projects.

This past February, one of the first copyright lawsuits involving 3D printing almost came to fruition, as Artur Tchoukanov sent Thingiverse a DMCA takedown notice after Ulrich Schwanitz posted a design for a 3D Penrose Triangle that Tchoikanov had originally publicized via a YouTube video. Tchoukanov eventually dropped the claim, but the threat of DMCA stalling innovation is ever-present.

Thingiverse provides a unique service that could make the procurement of consumer goods and everyday tools easier. For example, one user with a broken doorknob could log on, download a comparable doorknob design, and print it using his or her personal 3D printer–rather than having to travel to a physical store and paying money out of pocket. The potential is truly limitless as a means for consumers to instantly trade not only ideas but also physical objects across thousands of miles without any of the logistical challenges and fees of shipping.

As wonderful as this service may appear, there are obviously serious copyright issues at play. Much like other file-uploading services, Thingiverse provides a medium for potential infringers to post designs for objects either copyrighted or patented, whether they be a figurine of a popular cartoon character or a practical medical device. This potential for this threat, however, is insignificant, compared to the plethora of other potentially beneficial services Thingiverse may provide.

The Sony v. Universal case is of particular interest to Thingiverse developers, as it provides us with a unique test for determining whether such a service threatens copyright. The case set the fundamental precedent that the service/equipment “does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes.” Home recording devices escaped running afoul of copyright through their ability to fulfill the practical, non-infringing practice of private, non-commercial time-shifting. Moreover, copyright holders could not prevent other copyright holders from authorizing such time-shifting, and even non-authorized recording could be classified as fair use.

Applying this test to the Thingiverse case, we ask ourselves if the file-sharing enabled by Thingiverse fulfills other legitimate, unobjectionable purposes. Moreover, does Thingiverse fully grasp the potential for users to infringe as they log onto the site? What potential safeguards are in place to monitor such practices?

Secondly, we see that cases in which people may build upon a copyrighted design, users are in fact finding a fair use of the design. By adjusting and building upon these existing products, users are in fact transforming it into a different object. Of course, such an application of the fair use case may not always be ideal, but such discussions would at least be thought-provoking and have tremendous implications in the future.

Thirdly, the spread of 3D-printers may bring potential questions related to not only liability rules of copyright, but also liability rules of design patent. As we saw Apple’s patent claims, US design patent covers the ornamental design for an object having practical utility. In coming 3D-printing era, how will industrial design rights be protected?

For example, using a 3D-printer, we will easily be able to copy plastic goods with very low cost. Imagine the situation: a user of Thingiverse bought a neatly-designed smartphone case, which is protected by design patent; if he/she scanned and uploaded its 3D-CAD data on Thingiverse, what problems may arise?  Many people would start printing the smartphone case instead of buying it. In that case, smartphone case manufacturer might sue Thingiverse for second liability for infringement of their design patent.

One problem is that current patent law does not have “safe harbor” rules like DMCA. DMCA sometimes stalls innovation based on web community, but it is also true that it provides “safe harbour” from troublesome liability for web industry such as internet service providers. However, there are no established procedures to avoid second liability for such kind of patent infringement. This can be a serious risk for them and the chilling effect might impede growth of 3D-printing online community.

We must remember the history that intellectual property law has balanced the right against the use along technological evolution. When a pen was the only tool to copy information, we did not have any such copyright rules. After the invention of letterpress which significantly decreased costs of copying books, the first copyright act was enacted in England.

After a long period, when Sony released VCR which enabled copying TV programs and movies at home, the court showed the new balance between the social profit and expense of it. Furthermore, digitization of the information reduced a copy expense to 0; the government and the congress made DMCA to make the balance of digital era. The court also showed new balance in Grokster case.

The intellectual property law and policy has co-evolved with technology for a long time. 3D printing, which is fusional technology of Atoms and Bits, will urge changes in not only copyright, but also design patent. We should keep watching these changes.

Much as the printing press revolutionized the sharing of the written word, the player piano shifted the value of music, the radio made songs more accessible, and VHS and cassette tapes allowed for the easy copying of music, 3D printers and the Thingiverse community is facilitating the easy exchange of simple inanimate objects. And much like all of these revolutionary technologies, this new force is meeting extreme blowback from rights-holders looking to preserve their status quo business practices. These examples ended up surviving the test of time as a service that only expanded audiences, and it will be exciting to see whether Thingiverse will mimic history and how exactly it will revolutionize the market for consumer goods.