Monthly Archives: March 2013

3D Printing: Brave New World or Nightmare on IP Street?

“Everybody wears the same clothes now. And everybody plays the game. Copycat, copycat, copycat.” Copycat by The Cranberries

The Internet. The Industrial Revolution. Guttenberg’s Printing Press, The Wheel. Game-changing inventions that radically changed how humans work, play, interact, and think. It’s hard to remember life without computers on our desktops and in our pockets, courtesy of Smartphones that keep us constantly connected but increasingly isolated. Just when we were about to take a breather so we could download the newest Apps from the Apple Store, the onslaught of innovation has gained new momentum. As before, the technology poised to change our lives–and possibly the world–sounds benign. 3D Printing. The name conjures up little more than something that might be able to churn out a nifty diorama for a 5th grade school project. But don’t let the simple name fool you. Like the printing press or the microprocessor, 3D Printing technology promises to have a profound impact on how goods are made, sold, and used.

What is a 3D printer? To simplify, it’s a desktop “factory” that can copy and reproduce everything from dishware to components of firearms. Using a 3D printer, virtually any solid object that can be scanned and reduced to a digital “virtual blueprint” can be manufactured, literally on one’s desktop. Today, 3D printing remains the province of industries such the spare auto parts makers and hobbyists who dabble in printing model toys, jewelery, and other small objects. Tempting to dismiss or ignore. But once upon a time, not too long ago, computers were brushed aside as reserved for IBM, NASA and the eggheads eager to trade up from their slide rules and pocket protectors.

In just the last few years, the price of “personal” 3D printers has dipped to around $2,000. And the implications could be profound. Imagine making your own crowns or dental implants, spare parts for household appliances or cars, even chocolates. And imagine factories and warehouses that make, store, and ship those and innumerable other items suddenly going the way of the dinosaurs when everyone has an “all-in-one” “DIY” factory sitting right next to their paper printer.

This all may sound too good to be true, but owners of intellectual property can ill afford to act like ostriches. Recent history reveals what can happen when IP owners don’t grasp and embrace sea changes in technology. Just try to find a Sam Goody’s record store or a Blockbuster Video still welcoming consumers through their brick and mortar doors–done in by rampant and unashamed peer-to-peer file sharing of music and movies, and ultimately ceding prize market positions to streaming services such as Netflix and Spotify.

What can owners of copyrights, trademarks, and patents do to avoid a similar fate from 3D printers. It will require innovative solutions and creative approaches using the full arsenal of IP rights. First steps should include shoring up conventional protection for designs, such as design patenTs, copyrights, and trademarks. Ensuring that when something is copied, the trademark is necessarily copied may be one way to easily identify counterfeit products. Obtaining copyrights in the digital files needed to create a 3D copies may also become a vital tool in controlling–and profiting from–the rise of home-based manufacturing. But one thing is sure, industries that don’t recognize that the winds of change are blowing hard and fast may well be swept aside.

QUOTE OF THE DAY: “The medium is the message. This is merely to say that the personal and social consequences of any medium – that is, of any extension of ourselves – result from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology.”
Marshall McLuhan


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Bring Us Your Tired, Your Poor, Your Textbooks?: First Sale Goes Global

“If you really like it you can have the rights,
It could make a million for you overnight.”  Paperback Writer,
Lennon and McCartney

So you’ve come to the U.S. from Thailand to pursue a degree at an elite American college.  Things are looking up, until you’re hit with that first tuition bill and the accompanying rapid onset of sticker shock.  Financial aid and student loans are options, but you’re not enthralled by the prospect of leaving school a quarter million dollars in debt.  So what do you do?  If you’re Supap Kirtsaeng, a math student at Cornell and a Thai national, you think fast and do some simple arithmetic.  The textbooks for courses at Cornell and other schools can be bought for a fraction of the cost back home.  And the cost of shipping them to the United States barely eats into the prospective profits.   So, as Mr. Kirtsaeng did, it becomes a simple exercise to have relatives back home buy up textbooks for resale here. Kirstaeng reportedly netted over $100,000 through this international used-book program–enough to pay for two Ivy League semesters.

While Mr. Kirtsaeng was sailing through school, a major U.S. book publisher was stewing–and suing. John Wiley & Sons charged Kirtsaeng with infringing its copyrights. Wiley claimed that the law allowed it to “divide and conquer” the world markets, setting different prices for different markets–with the U.S. editions commanding this highest price tags. Wiley recognized that a provision of Copyright law called “the first sale doctrine” allows anyone who buys a copyrighted work, such as a book or cd, to resell it without permission from the copyright owner. But according to Wiley, the protections of the first sale doctrine ended at the U.S border.

The trial court and appeals court agreed with Wiley. Undeterred and showing the pluck that led him to conceive his bookselling strategy, Kirstaeng appealed to the Supreme Court, urging the nine justices to conclude that the law means what it says–that the first sale of a copy lawfully made under the U.S. Copyright law exhausts the copyright, regardless of where that sale takes place.

In a 6-3 ruling, the High Court sided with Kirstaeng, holding that because the books were Real McCoys “lawfully made” by the copyright owner, they were subject to the first sale doctrine.

Reaction to the Court’s ruling divided along predictable lines. Consumer groups praised it as ushering in new freedom for American consumers to shop worldwide for copyrighted materials. As one spokesperson told the New York Times “Americans [will] no longer be the chumps who pay the highest prices in the world . . .”

Others were chagrined, predicting drastic changes in the way content, such as books and software, will be distributed. As the Business Software Alliance wrote in its brief “Software authors will have little incentive to price their programs for foreign markets if they can simply be resold in the United States and thereby undercut the price of the domestic version.”

The Times even pondered whether “the decision might even hasten the near-demise of print–spurring publishers into a digital works where they can license their books rather than sell them . . .”

Two years ago, the Supreme Court could not decide whether the first sale doctrine allowed the importaion for resale of copyright-protected watches intended for foreign markets. Now, with its decision in the Kirstaeng case, the scope and international reach of the first sale doctrine no longer is in doubt. Proving once again that even with global forces aligned against you, sometimes all it takes is the old college try.

QUOTE OF THE DAY: “The love of one’s country is a splendid thing. But why should love stop at the border?” –Pablo Casals


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