Intellectual Property in the Coming World of Distributed Digital Manufacturing

We are certainly in the midst of a transformation in the way that 3D content creators, owners and consumers will interact with, exchange, and perhaps even make physical, 3D data.  Along the way, traditional notions of what represents content worthy of protection will be stretched (and perhaps broken) as the market works to navigate and find the acceptable solution for all participants in the ecosystem – allowing 3D content creators to properly monetize their creativity and hard work, while allowing 3D content consumers to leverage a rich universe of quality content, and perhaps even paying for it along the way.   It won’t be easy, but there is a path forward.

In early 2012 I began a series of blogs on the intersection of intellectual property with the dramatic changes influencing the 3D capture/modify/make ecosystem (of course 3D printing is but one, of many, possible outcomes of a 3D capture and design process).  My first blog in this series was The Storm Clouds on the Horizon where I wrote that I felt the next “Napster” era was upon us for digitally captured real world content.

Storm Clouds

There is a growing awareness and understanding of intellectual property considerations in the 3D ecosystem – whether we are talking about how it might impact consumers who wish to use their in-home 3D printers to produce an item or a company within a distributed digital manufacturing chain for a large consumer goods company.  These concerns have been accelerated by the transformative technical changes on both “ends” of that ecosystem.

The technological shift

Over the last few years there has been continuing acceleration in the hardware, software and services necessary to empower digital design and manufacturing processes.  Earlier in 2014 I identified the following key trends in the capture/modify/make ecosystem for object based 3D capture and manufacture:

2014 Market Trends

We are at a unique point in time – when both “ends” of the capture to make ecosystem are being impacted by dramatic technological changes.  The change is continuing, the pace is accelerating.

The last several years have seen many new market entrants on the consumer/prosumer 3D printing side.  What is, and will be in my opinion, equally or more transformative is the impact that new low cost/smaller form factor 3D capture devices will have in this space.  Consumer 3D data capture is becoming more mainstream on the consumer side  as we close out 2014  – as Intel adds their RealSenseTM depth sense technology to every laptop they ship (with the first expression in the Creative Senz3D , Google progresses with Project Tango  along with their software partners and other 3D data capture solutions are developed and distributed to consumers.  I looked at some of these market players in an earlier blog and also examined how new passive 3D capture technologies, leveraging plenoptic (a/k/a “light field”) cameras, may find their way into your next phone or tablet.

3D Sensor Progression

A recent research paper co-authored by Microsoft Research and published at SIGGRAPH 2014 earlier in August titled Learning to be a Depth Camera demonstrates that 3D capture and interaction can be implemented by applying machine learning techniques and minor hardware modifications to existing single 2D camera systems.

With the convergence of technologies, it is likely we will see the growth of multifunction 3D capture and printing devices that attempt to offer “one button” reproduction (and transmission/sharing) of certain sized objects in certain materials.  Examples even exist today – like the ZEUS – marketed as the first “ALL-IN-ONE 3D Printer / Copy Machine” as well as the Blacksmith Genesis, which started a crowd-funding campaign on Indiegogo in August.   3D Systems, Intel and Best Buy have recently collaborated on an integrated campaign called the “Intel Experience” where, in selected Best Buy stores, consumers will be exposed to 3D capture solutions leveraging Intel’s RealSense cameras along side 3D Systems 3D printing solutions.

While I believe the ecosystem is lagging in producing software tools that make it easy for non-professional users to create, find and personalize 3D content, we are only a short time away from dramatic changes there too.

When people can more easily digitize, share, copy and reproduce real world 3D content – how will that change the landscape for content owners and consumer alike?  What existing business models will be threatened, and which new ones created, with such a transformation?

What exactly “is” Intellectual Property in the Context of Digital Manufacturing?

Many things!  It may be represented in trade secrets – the confidential, differentiated manufacturing processes used to produce something. It could be represented by copyright – in for example the rights a sculptor would have in their latest creation.  It might be represented by patent – in a novel, non-obvious, useful device.  In the EU, a design could be protected by registered or unregistered design rights.

What if your son broke the leg of his favorite action figure (which you purchased from a big box toy store) and you decided to repair it using something you produced from your 3D printer (or you could also print it to the Staples down the street or have it shipped to you from Shapeways)?

What if you were able to find and download a manufacturable model (in STL format) of that action figure that someone had uploaded to one of the many model sharing sites and used that as the basis of the print job?  What if the person who uploaded the file had created the model by hand (e.g. they may have looked at the same action figure you wanted to repair but they designed it on a blank digital canvas)?  What if the person who uploaded the file created the representation (in the file) by 3D scanning an undamaged action figure?   What if you scanned, printed, and repaired the item in your own home but did not share the files with anyone else?

Lamp Rings

What if was not an action figure, but instead a retaining ring for one of the low voltage lights which keep getting run over in your front yard?

Do these differences matter?  Absolutely.

The type of content (artistic or functional), the reason for manufacture (new item, replacement part, etc.), how the content to be manufactured was generated (created from scratch, printable file obtained from a third party, the end result of a 3D reality capture process, from the manufacturer, etc.) and where the content will be manufactured (in your home, at a local store for pickup, on a third parties networked printer, at a remote service bureau and shipped, etc.) all matter.  In some instances the content might not be protected at all, in others it might touch multiple types of third party intellectual property.

There is not enough space here to give you a general primer on all of the intellectual property issues in the create/capture/modify/make ecosystem.  I would instead point you to several excellent publications and presentations as background (which principally look at the application of US law):

The above is a small (but particularly useful) sample of work examining some of these issues in depth, another broader summary can be found here.  You will find that authors in this space cover a broad spectrum of opinions –from those who believe that intellectual property issues need to be understood in digital manufacturing but generally inapplicable because many objects that would be manufactured are generally not protectable (e.g. Weinberg), to those who believe that the democratization of capture and printing technologies will utterly transform manufacturing supply chains and potentially substantially devalue intellectual property rights all content owners will have in the future (e.g. Hornick) as well as everything in between.

I fall in the middle ground – believing that the fundamental technical and market changing technologies will stretch the concept of intellectual property, but as we have seen in the past with the music industry, that over time the ecosystem will adapt – including the law.

Intellectual Property Concerns an Impediment to Continuing Growth?

Intellectual property concerns have moved from beyond the theoretical to one which manufacturers consider to be one of the most potentially disruptive impacts of the broadening reach of additive manufacturing.   In June 2014, PricewaterhouseCoopers (“PwC”) and the Manufacturing Institute published their report on 3D Printing and the New Shape of Industrial Manufacturing (the “PwC Report”).   The report is broad reaching, and well worth an extended read by itself.   One section examines the potential for additive manufacturing to shrink supply chains:

Companies are re-imagining supply chains: a world of networked printers where logistics may be more about delivering digital design files—from one continent to printer farms in another—than about containers, ships and cargo planes. In fact, 70% of manufacturers we surveyed in the PwC Innovations Survey believe that, in the next three–five years, 3DP will be used to produce obsolete parts; 57% believe it will be used for after-market parts.

Source: PwC Report, Page #1

When PwC Report survey participants were asked to identify what they felt the most disruptive impact wide adoption of additive manufacturing technologies could have on US manufacturing – the “threat to intellectual property” was second only to supply chain restructuring.

This concern should not really be all that surprising.

image010In October 2013 the market research firm Gartner, in conjunction with their Gartner Symposium/ITxpo made a series of predictions impacting IT organizations and users for 2014 and beyond.   Several related to the impact that cheaper 3D capture and printing devices were predicted to have in the future for the creation of physical goods – predicting staggering losses from the piracy of intellectual property:

By 2018, 3D printing will result in the loss of at least $100 billion per year in intellectual property globally. Near Term Flag: At least one major western manufacturer will claim to have had intellectual property (IP) stolen for a mainstream product by thieves using 3D printers who will likely reside in those same western markets rather than in Asia by 2015.

The plummeting costs of 3D printers, scanners and 3D modeling technology, combined with improving capabilities, makes the technology for IP theft more accessible to would-be criminals. Importantly, 3D printers do not have to produce a finished good in order to enable IP theft. The ability to make a wax mold from a scanned object, for instance, can enable the thief to produce large quantities of items that exactly replicate the original.

Source: 2013 Gartner ITxpo Press Release

Now, I do not share the dire predictions of Gartner – as many of these hardware and software technologies have already existed for many years, but primarily because the process of creating high quality digital reproductions (either from “scratch” or from a 3D reality capture process) is still very difficult, even for experienced users.  But over time, and with almost certainty in the market for certain consumer goods, if someone could manufacture something in their home at comparable cost and quality to what they could buy at a store, why wouldn’t they?

Intellectual Property Issues in Digital Manufacturing

Obviously there must be a willingness of content owners to share and distribute their intellectual property for distributed manufacturing – whether as part of a collapsing supply chain for industrial manufacturers, or to authorize someone to produce a licensed good in their own home.

We are seeing companies test the water – from the Nokia experiment in early 2013 (prior to the Microsoft acquisition) to provide STL and STEP models of certain phone cases for 3D printing, to Honda releasing their 3D “design archives” in early 2014.

520_shell

Nokia Lumia 520 Shell, author: Nokia (CC BY-NC-SA 3.0)

A few months ago Hasbro licensed a handful of artists to create derivative works based on their My Little Pony line of toys and then those artist designed customizations could be purchased from Shapeways.  To be clear, Hasbro did not authorize anyone to create customizations of their licensed works, but rather started with a single design, customized by a handful of artists, to start.  Buoyed by the success of this launch, Hasboro and Shapeways are now soliciting designers to create customized 3D printable designs based on Dragonvale, Dungeons & Dragons,  Monopoly, My Little Pony, Scrabble (to be sold in the US and Canada only) and Transformers – with upload instructions posted to Superfanart.com in late August 2014 (which now points as subdomain to Shapeways.com).

What will accelerate the types of projects piloted by Nokia, Hasboro and Shapeways?

There are obviously business and technical hurdles in distributed digital manufacturing, but there are also some fundamental intellectual property issues which need to be resolved as well:

Issue Potential Resolution
De-facto and proposed new manufacturing file formats do not encapsulate intellectual property information Refine specification to make each file self-describing and/or to develop a metadata wrapper like ID3 for MP3
Inconsistent, and perhaps even inappropriate, licensing schemes used for 3D data Development of a harmonized community type licensing scheme for 3D content
Safe-harbor provisions of the DMCA apply only to copyright infringement Statutory extension of these protections to all forms of intellectual property

 

I’ll examine each of these issues, and potential resolutions, in more detail below.  There are clear parallels (in my mind at least) to the music industry – what lessons can be learned from the digitization and distribution of digital content there?  Which business methods are ultimately prevailing?

A manufacturing file format which encapsulates intellectual property information

The de-facto standard used for digital manufacturing is and has (and remains) the STL (from “STereoLithography” a/k/a “Standard Tessellation Language”).  STL has the benefit of being well known and computationally easy to read and process.  Most manufacturing systems require triangulated models to get sliced for processing (e.g. CAM, 3D printing, etc.).  The challenges with STL, however, are many – it does not scale well to higher resolutions, there is no native support for color or materials properties, it is unit-less, and it does not compress well (among others).

A new standard has been proposed to replace the STL format, it is known as the AMF (for “Advanced Manufacturing Format” a/k/a “STL2”).    Al Dean reviewed the AMF and compared it to STL in his January 2013 DEVELOP3D article Alpha-Mike-Foxtrot to STL.  More useful background can be found at the AMF Wikispace.

Without getting into a debate as to whether the current AMF specification is “good enough” to grow into the next de-facto standard, it is important to recognize that the handling of intellectual property rights are specifically excluded.  Section 1.4 of the ASTM AFM specification reads:

This standard also does not purport to address any copyright and intellectual property concerns, if any, associated with its use. It is the responsibility of the user of this standard to meet any intellectual property regulations on the use of information encoded in this file format.

Further, the AMF specification is lacking support for metadata containers which would allow for the file content to be self-describing at some level.

Shapeways has decided to enter the fray and announced their own voxel based file format for 3D printing called SVX at the end of September.  As with STL and AMF, the SVX specification does not address intellectual property.

What is needed?   A file format (AMF or an alternate) for manufacturing which specifically allow for metadata containers to be encapsulated in the file itself.  These data containers can hold information about the content of the file such that, to a large extent, ownership and license rights could be self-describing.   An example of this is the ID3 metadata tagging system for MP3 files.   Of course the presence of tag information alone is not intended to prevent piracy (i.e. like a DRM implementation would be), but it certainly makes it easier for content creators and consumers alike to organize and categorize content, obtain and track license rights, etc.

Mp3filestructureMP3 File Structure, user: Kim Meyrick (CC-BY/GFDL)

Inconsistent/inappropriate licensing schemes for 3D data

Most 3D printing service bureaus and model hosting sites have licensing terms which are only concerned with copyright, rather than dealing more broadly with the entire “bucket” of potential intellectual property ownership and licensing concerns.  Several rely on the Creative Commons licensing scheme (or some variation thereof) as the foundation for the licensing relationship between their content creators/contributors, content consumers/users and their own services.   Worrying only about copyright, or exclusively using the CC licensing scheme for manufacturable 3D content (via 3D printing or otherwise) is misguided.

Creative Commons (the organization behind the CCL scheme) is acutely aware of using the wrong license type for functional content, see the post titled CC and 3D Printing Community.  The challenge with the current CC licensing schemes is that they were never intended to cover “functional” content (that which might be covered by intellectual property rights other than copyright).    As the blog above notes –

With the exception of CC0, the Creative Commons licenses are only for granting permissions to use non-software works. The worlds of software and engineering have additional concerns outside of the scope of what is addressed by the CC licenses. 3D printing is a new medium which encompasses both the creative domains of culture and engineering, and often 3D printed works do not fall neatly into either category.

Creative Commons explored the creative/functional split in a Wiki for the 4.0 release of licenses, but did not develop a framework for a license covering both types of content.

I examined these issues previously in more detail in a two part blog The Call for a Harmonized “Community License” for 3D Content.  While dated, those materials can be useful background.

Why does this matter?  There is presently no licensing consistency among the various players in the digital manufacturing ecosystem – potentially meaning that there are tens, or even hundreds of “flavors” of a license grant, for the same content.

What is Needed?  An integrated, harmonized licensing scheme addressing all of the intellectual property rights impacted in the digital manufacturing ecosystem – drafted in a way that non-lawyers can read and clearly understand them.  This is no small project, but needs to be done. Harmonization would simplify the granting and tracking of license rights (assuming stakeholders in the ecosystem helped to draft and use those terms) and could be implemented in conjunction with the file format metadata concept described earlier.

At least one organization is working on a new model for licensing, utilizing a community approach to drafting and feedback – driven by Joris Peels the YouMagine Community Manager (and long time participant in the 3D printing ecosystem).   You can find the current progress here.

Do the “Safe Harbor” Provisions Apply?

It is possible, via secondary or vicarious liability, to be held legally responsible for intellectual property infringement even if you did not directly commit acts of infringement.

In 1998 the Digital Millennium Copyright Act (the “DMCA”) became law in the United States.  The DMCA, among other notable things (such as criminalizing anti-circumvention protections such as DRM), creates limitations on the liability of online service providers for copyright infringement by third parties when engaging in certain types of activities – primarily relating to the transmission, storage and searching/indexing of data.  These have become known as the “safe harbor” provisions of the DMCA.

image016

Wick Harbour, user: Dorcas Sinclair (CC-BY-SA-2.0)

To receive these protections, service providers must comply with the conditions in the Act, including providing clear “notice and takedown” procedures which permit the owners of a licensed content to stop access to content which they allege to be infringing.

The DMCA provides a “safe harbor” to service providers for copyright infringement, if for example, it turns out that they, for example, hosted or store content upload by a third party which was found to be infringing.  There are a few key limitations: (1) the content may not be modified by a service provider (if it is, the DMCA safe harbor protections do not apply); and (2) the DMCA only limits liability for copyright infringement, it does not help protect a service provider from other potential forms of infringement.

The first DMCA “take down” notice for 3D printed content was sent to Thingiverse (now part of Stratasys) in February 2011 for a Penrose Triangle which could be 3D printed – likely content not protectable by copyright in the first place.  Shapeways [link: ] and many others in the ecosystem commented on the notice and what it meant for the industry at large – how do you reward legitimate creators/inventors in a world of “copy paste”.

You can see examples of how companies have implemented a DMCA notices on the 3D Systems Cubify site (see Section 9)  and on Shapeways.  There are obviously others.

Unfortunately, in the world of distributed digital manufacturing there is the potential for more than just copyright infringement – functional items which are manufactured and used may (and I stress may) violate third party patents, trademarks, trade dress, design rights, etc.    This could open up participants in the digital manufacturing chain to claims of secondary infringement for rights other than copyright.   These are typically much more difficult claims to make (just by the nature of what needs to be demonstrated under the law) – but potentially chilling nevertheless.

What is Needed?  Extension of the concepts in the DMCA to cover the broader bucket of intellectual property rights beyond copyright.  Desai and Magliocca, in Section III(c) of the Patents Meet Napster: 3D Printing and the Digitization of Things article I referenced earlier reach a similar conclusion and propose a framework for implementation.  Such changes need to be considered and implemented in a way which does not create or extend secondary liability to more players in the ecosystem, but rather provides a safe harbor for certain non-copyright claims should infringement liability otherwise exist.

More Certainty Will Bring Business Model Exploration

Forward thinking content owners, like Hasbro and others, recognize that over the next several years there will be substantial transformation in the digital manufacturing ecosystem.  Intellectual property metadata in self-describing digital files, harmonized licensing schemes and revised statutory frameworks will help accelerate these changes.

Ultimately, there is a universal market need for an intellectual property licensing, clearance and payment infrastructure to support the seamless distribution and payment for manufacturable content.  Hundreds of billions of dollars worth of consumer goods alone are likely to be manufactured (in the home, at a store, at a remote service bureau on demand, or by the consumer goods company themselves)  on annual basis using additive manufacturing technologies.     When content creators have an easy way to monetize their content through licensing, content consumers can find and pay for quality content which meets their needs, and simple personalization tools have been created, we will truly see a transformation in digital manufacturing.

Note: The majority of the content in this post was originally published in the September 2014 edition of DEVELOP3D Magazine, it has been updated and refreshed. 

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3 thoughts on “Intellectual Property in the Coming World of Distributed Digital Manufacturing”

  1. Tom,

    Thanks for this well thought article which provides a great summary of the key IP challenges associated with digitization of manufacturing. I would like to add another angle to the potential future legal complexity of DM: product traceability and product liability.

    In a scenario in which a 3d printed product failed and create some kind of physical or financial damage…who could be liable? The designer, the distributor of the design, the company that printed it, the printer manufacturer, the consumable provider? And how to even prove who designed and who manufactured? With strict liability no intent has to be proven, just that failure occurred and created damage and someone in this ecosystem is liable.

    I am not aware of any case yet, and hope for the sake of this fantastic technology, that this will never be a new legal Eldorado.

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