DMCA does not cut it for 3D printing

The Digital Millennium Copyright Act (DMCA) was signed into law in 1998. It is designed to protect copyright and implements two WIPO treaties. There are many controversial paragraphs in this law but there is one very useful provision. This is the Safe Harbor provision called Online Copyright Infringement Liability Limitation Act or OCILLA. It limits the liability for online service providers on copyright violations by their users. By implementing a strict Takedown Notice procedure these online service providers can get themselves out of the dispute.

With the rise of 3D printing and their accompanying marketplaces and 3D model sharing services a new type of infringement is becoming more prevalent. Copyright infringements of 3D models and 3D printed products are rare. A form or function cannot be copyrighted and only patterns on objects can fall under copyright. Infringements do happen but they are in the area of trademarks, trade dress, patent and design patents.

Unfortunately there is no protection for online service providers for infringements in these areas. In practice this means that online service providers are responsible for the activities of their users and are liable contributory trademark infringement. The same reasons for creating the Safe Harbor provision under the DMCA apply to the other intellectual property rights.

Like we have seen with digital media entering the internet we can expect users start to copy, remix, recreate and improve existing products using 3D printing. Sites that accept and make available user generated content are seeing this already. It is only a matter of time that these sites become interesting enough to rights holders to sue them for infringement. Whatever the outcome these companies will be seriously affected. If left alone this issue will create a lose-lose outcome for all parties involved. A genuine disruptive innovation cannot be stopped and should be dealt with. Rights holders should be protected while this innovation can flourish.

The issue with regard to non-copyright related infringements already exists for companies like Etsy and Ebay. Ebay has been sued several times already and has recently won a case in the supreme court Ebay suffers mainly from users who sell counterfeited goods. To limit their liability and under pressure from the industry they have implemented very strict rules and programs to deal with these issues. This helps them in these cases.

Safe harbor has spurred innovation on the internet and there is a need to extend this to the other IP-related rights as well. We are still early in this cycle of innovation but I hope we can create protection for online service providers in these areas as well. The worst thing which can happen is that we enter a new period of lawsuits slowing down the innovation of personal manufacturing on the internet.