J.C. Lundberg, Blog Editor

On March 28th, Stuart P. Green ran an op-ed in the New York Times arguing that sometimes “stealing isn’t stealing.” Several blogs, including Gigaom, picked up the story but the argument has not yet been analyzed in light of the growing developments in the area of 3D printing. At present, intellectual property theft discussions circle around downloading of music, movies or—increasingly—books. However, Just as the use of personal computers and Internet access proliferated throughout the late 1990s and 2000s because hardware and subscription prices decreased steadily, 3D printers are becoming increasingly affordable for hobbyist consumers. Some parents are now buying them for their children (see e.g., Schuyler St. Leger’s “Why I Love My 3D Printer”).

Because 3D printers are more available and can print their components, there are increasingly many sources for files that can tell a 3D printer how to make something. Thingverse remains the most common site for these files but at the end of January, The Pirate Bay announced that their site would begin hosting a category of torrent files—now magnet links—for “physibles” (files that can be used to print physical objects). The size of the “physibles” category—36 files as of the time of posting—is dwarfed by its other categories (e.g. movies, TV shows, music, ebooks, software &c)—all of which easily number in the thousands of files each—but is offered as a harbinger of the direction the administrators of The Pirate Bay anticipates piracy will head in the future. One (perhaps ill-advised) anti-piracy PSA included the phrase “you wouldn’t download a car” to which many pirates responded “[expletive deleted]; I would if I could.” For now, downloading something as large as a car is beyond the scope of any 3D printer available to a hobbyist.

This issue is not (entirely) idle speculation, however; in January of 2011, a user uploaded files on Thingverse that allows someone to print the pieces required to play Settlers of Catan. As of the time of publishing, the files are still listed on Thingverse. All of Green’s “stealing isn’t stealing” analysis applies insofar as downloading these files, printing them on a 3D printer and then playing Settlers of Catan is no more theft than is downloading a copy of J.J. Abram’s 2009 film Star Trek using a magnet link and watching it on one’s laptop. Both of these acts are distinguishable from going into a store and taking the physical embodiment of the object (the game in its box or the DVD) because the piracy does not deprive the shopkeeper—or any individual—of the object. In both cases, too, not every illegal download results in a lost sale. See U.S. v. Dove, 585 F.Supp.2d 865, 870 (W.D. Virginia, Nov. 7, 2008). It is equally certain, however, that some of those who pirate either the game or the movie would have bought it had piracy not been an available option. Ultimately, the proliferation of 3D printers extends the copy fight onto another front: physical objects.

The problem in this case, however, is that while copyright law certainly protects Star Trek, it does not meaningfully protect Settlers of Catan. While the exact designs on the tiles packaged with the game are subject to copyright—as are the text of the rules—and the name is trademarked, the precise legal status of the Catan tiles on Thingverse is a bit more ambiguous. Perhaps they qualify as a derivative work under 17 U.S.C. 101. Much of that language, however, is built around the paradigm of using copyright to protect information (e.g. a movie, play, work of music or written work) instead of a physical object (e.g. a board game). As with the torrent of copyright infringement lawsuits filed by the MPAA, RIAA and other media creation interests, the paradigm under which the piracy of physical objects is examined will be determined by the courts if (or perhaps more accurately, when) lawsuits begin.

Posted by Washington Journal of Law, Technology & Arts

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