I’m going to do some posts on 3D printing this week, some of which relate to the paper that Deven and I are writing. This one deals with product liability.
As I’ve said before (to great consternation), state product liability law is basically a dead field. In large part, this is because of federal preemption. But the growth of 3D printing, like other technological changes, may bring the common law back into vogue because Congress will not get its act together quickly to regulate this field.
Here’s the basic issue. In a world of 3D printing, anyone could be a manufacturer. Let’s say I make something from scratch in my 3D printer at home and that product (a toy, a cookie, a tool, a spare part) injures someone. Should we apply the same principles of product liability to that person that we would to a firm? Yes and no, I think. We probably won’t require individuals to put warnings on what they make, but we may say that a design or manufacturing defect should lead to strict liability. Or would we say that a negligence standard should apply to homemade products?
Now try this one on for size. I upload a file that will make some something to a website. Someone downloads my file, makes the item, and this injures someone. Is the author of the file on the hook for a design defect claim? What about the website? While this could depend on a number of factors, courts will again need to think hard about how product liability rules should be adapted to this ecosystem.
We’re not there yet, but it’s coming.