Academic journal article Washington and Lee Law Review

Indistinguishable from Magic: A Wizard's Guide to Copyright and 3D Printing

Academic journal article Washington and Lee Law Review

Indistinguishable from Magic: A Wizard's Guide to Copyright and 3D Printing

Article excerpt

"Any sufficiently advanced technology is indistinguishable from magic."1

The defining characteristic of a 3D printer is that it turns bits into stuff. This causal connection between the world of thoughts and the world of things is more than a little uncanny. 3D printing is a technology of such surprise and wonder that it verges on the magical.

It is also, Kyle Dolinsky argues, a problem for copyright law.2 The heart of his Note is a search for analogies to CAD files in copyright case law. He works methodically through architectural plans, technical drawings, recipes, and computer programs3-all things that consist of instructions for making other things. These analogies have something else in common, too: they're difficult, contested ground in copyright, which has never dealt cleanly with multiple media or multiple layers of meaning.

This bad news is also good news. 3D printing is as hard as some of the most notoriously difficult parts of copyright-but it is also no harder. To the extent that the copyright system is capable of resolving these other controversial cases, it is also capable of resolving 3D printing cases. To see why, it helps to abstract away from the details of 3D printing itself. Instead, let us start from the wisdom of Clarke's Third Law4: that beyond a certain point, the technological details no longer matter. What if 3D printers actually are magic?

I. Introduction

Ulrich has a Replicio wand. When he waves it with the right flick of his wrist, it makes a perfect duplicate of the object he waves it at.

The copyright treatment of the Replicio wand is simple. When Ulrich uses it to duplicate an object, he has created a "copy."5 His only good argument that his copy is noninfringing will be that the object is not subject to copyright in the first place.6 The strength of this argument depends on what the object is. A first-century bust of Homer is in the public domain;7 duplicating it with my wand violates no one's rights. A twentyfirst-century bust of Homer Simpson is copyrighted; duplicating it with the wand makes me an infringer.

There is nothing special about three-dimensional objects in this respect.8 If Ulrich waves the wand at Rembrandt's two- dimensional public-domain painting Aristotle Contemplating a Bust of Homer, his duplicate will not infringe. To be sure, some three-dimensional objects are uncopyrightable for a distinctive reason: because they are "useful articles" whose practical aspects are inseparable from their aesthetic features,9 such as bicycle racks10 and casino uniforms.11 But to understand the Replicio wand, we need to know only whether a three-dimensional object is copyrighted; nothing turns on why.

Thus, if we are capable of deciding which three-dimensional objects are copyrighted-a question to which copyright law already purports to have an answer-we are capable of saying that using a 3D printer to duplicate them infringes. Like the wand, it reproduces every last scrap of expression; a duplicate infringes if and only if the initial object was copyrightable.12 This is not by any means an easy question, but it is no harder than current copyright doctrine.

II.

3D printing is not, however, quite this simple. 3D printers do not work directly from objects any more than regular 2D printers work directly from books. Instead, 3D printers start from specialized CAD files: the 3D equivalents of PDFs.13

The magical equivalent of a CAD file is a long scroll containing an intricate spell. When read aloud, the scroll conjures up an object. What kind of object depends on the spell: a chair scroll makes a chair, a broom scroll makes a broom. Read a broom scroll twice and you have two brooms.

When I use my Replicio wand to duplicate a bust of Homer Simpson, I infringe. But what if Gandalf and Saruman break the process into two steps? Gandalf makes a scroll to create busts of Homer Simpson, and Saruman uses the scroll to make a bust. Are these infringing "copies" of the initial bust? …

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