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Revised Version of “Patents, Meet Napster”

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. David Lang says:

    just a note that your section talking about 3d printing of guns is obsolete. A company has printed a 1911 pistol out of metal and fired it extensively. They are now offering to sell them.

    At the moment, this is out of the reach of home printers, but that can change.

    In addition, a computer controlled mill can machine many metal parts, and could probably be used to manufacture a gun

    David Lang

  2. David Lang says:

    It’s also worth noting that since much of the software that is used to run 3D printers has been written by the users of the printers (Open Source Software), any legal requirements about what the printers are allowed to do is not going to be able to be enforced by the software. And even if there was “official” software that detected an attempt to print a gun and refused, the software would be hacked to remove that restriction by someone. The people who most want to get guns to do illegal things are unlikely to let the fact that they would be breaking the law by printing one affect them any more than they let the fact that breaking into someone’s house and stealing their guns is illegal today.

    in short, legal limits on what you can do with a 3d printer won’t work.

    I have serious doubts about how effective supply limits will be as well.

    You cannot tell if someone who is buying gunpowder is going to use it in a legal gun or an illegal gun.

    The amount of material required to print a gun (especially a pistol) is very small. If someone can buy enough printable metal to print a car engine, they can print dozens of pistols.

    And it’s impossible to outlaw 3d printers entirely. Ignoring the fact that they are so useful for so many obviously legal things, no rule to outlaw them can be enforced world-wide, any more than the ‘world-wide’ ban on land mines has completely eliminated them.

    I think you are correct in your analysis of the impact of 3d printing on trademarks and trade dress, but I’ll point out that the shift will be from how trustworthy the brand label that appears on the product is to how trustworthy is the seller of the product.

    your networked printer solution won’t be able to be completely effective any more than Apple is able to prevent their phones from ‘jailbreaks’ or Digital Rights Management software can prevent video or audio from being pirated.

    The bottom line is that at some point on the user’s side, the data needs to be in a form that the device (mp3 player, TV, or 3D printer) can understand it. It’s always going to be possible to record the data at this point, and then go to another identical device and play back the recording into the same point of the device.

    making every individual who infringes a patent or trade dress strictly liable is unlikely to be as effective as you think.

    Think about how people are strictly liable for speeding or jaywalking. Now how many people can honestly say that they have never broken these laws?

    There’s also the problem that if you make common-sense sane actions illegal, then people become desensitized to the law and are more likely to ignore other, more severe violations.

    As an example, think about the effect that claiming that people singing in their shower where they could be overheard counts as “public performance” of the song would be. As you note, draconian penalties for music copyright infringement have not slowed it down much, giving consumers a legal way to get the product instead has had a huge effect.

    I really do like your suggestion of minimum damages being required to make a claim. However such rules need to be carefully written or you can end up with the same situation you have related to anti-hacking laws where the company that has a flaw in their product that gets exploited includes the cost of fixing the flaw in the damages that the hacker is accused of causing (when the reality is that the company should probably have fixed it earlier, especially if they had been told about it) Or cases where the company has opted to send notifications to all their customers, then used the postage of this optional notification to justify harsher claims because of the additional ‘damage’ that was done.

    Another 3rd party liability question would be, if I take a file to a company and have them print something for me, are they liable if the file ends up being a copy of a protected item?

    I will argue that they should not be, any more than Kinkos is expected to be liable for copyright infringement if you take a file to them and have them print 1000 copies of it.

    It may be fair to still go after them if they did so knowing that it was a violation, but that would be a pretty high bar to reach.

    Another thing that the DMCA has shown would be needed for any patent equivalent is that there needs to be some very significant penalty for filing an invalid claim. The fact that major music studios have filed major lawsuits in cases where it turned out that they were the ones who uploaded the files and faced no penalty other than loosing the lawsuit is a problem.

    The ability for a large company that has lots of lawyers on their staff and therefor find litigation to be a relatively inexpensive and routine thing to be involved with (especially compared to the overall company budgets) to go after individuals for who any legal action is a very expensive and terrifying thing to be involved with, and the costs can be many years worth of income, even if they win, is a significant problem

    There is also the problem of the legal Trolls, companies and lawyers who file suit against large numbers of people, and then offering to settle for an amount that’s large enough to make them significant money, but small enough that any legal defense at all is going to be more expensive.

    Any new DMCA type law needs to fix these peoblems with the existing DMCA

    David Lang