University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2014 Intellectual Property Infringements & 3D Printing Decentralized Piracy Ben Depoorter UC Hastings College of the Law, [email protected] Follow this and additional works at:https://repository.uchastings.edu/faculty_scholarship Recommended Citation Ben Depoorter,Intellectual Property Infringements & 3D Printing Decentralized Piracy, 65Hastings Law Journal1483 (2014). Available at: https://repository.uchastings.edu/faculty_scholarship/1011 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please [email protected]. Intellectual Property Infringements & 3D Printing: Decentralized Piracy BEN DEPOORTER* By drastically reducing the role of intermediaries in manufacturing, 3D printing is likely to set about the next wave of decentralized, non-commercial infringements of intellectualp roperty rights. Drawing upon the lessons from the entertainment industry's litigation campaign against illegal file sharing, this paper describes some of the common characteristics of decentralized piracy. I show that, like copyright enforcement on file-sharing networks, intellectualp roperty enforcement of 3D printing faces economic and social norm complications that make traditional,l itigation based enforcement ineffective and possibly counterproductive. * Hastings Professor of Law, University of California, Hastings College of the Law; Ghent University; CASLE and Affiliate Scholar, Stanford Law School, Center for Internet & Society. Contact: [email protected]. I am grateful to Ben Buchwalter, Emily Goldberg Knox, and the other editors at the Hastings Law Journal for their input and suggestions. [14831 HASTINGS LAW JOURNAL [Vol. 65:1483 TABLE OF CONTENTS IN TROD U CTION ....................................................1.4.8.4....................................... I. 3D PRINTING'S POTENTIAL FOR INTELLECTUAL PROPERTY INFRIN GEM ENTS .......................................1.4.87.............................................. II. 3D PRINTING AND INTELLECTUAL PROPERTY UNCERTAINTY .........1.48.9..... III. DECENTRALIZED PIRACY AND ENFORCEMENT ........................1.4.9.3.......... A. THE ECONOMICS OF ENFORCING DECENTRALIZED INFRIN GEM ENT ..................................1.49.5....................................... B. DECENTRALIZED ENFORCEMENT AND SOCIAL NORM C OM PLICATION S. .............................1.49.7......................................... CONCLUSION: A LTERNATIVES ................................15.0.2.................................... INTRODUCTION If you learn from a loss you have not lost. -AusTIN O'MALLEY, KEYSTONES OF THOUGHT 191 (1914). 3D printing technologies promise to revolutionize manufacturing.' By uploading digital blueprints to computers, users of 3D printers can create seamless physical objects in an additive process.2 As 3D technologies become more widespread, the general public will be able to use cheap, affordable home 3D printers to design and manufacture most products available on retail markets.' A growing group of consumers are already putting 3D printers to use at home to manufacture household items, small sculptures, and spare parts.4 It is already clear that 3D printing will radically change the role of intermediaries in manufacturing.5 The declining costs of fabricating physical items will reduce the necessity for specialization in I. See Deven R. Desai & Gerard N. Magliocca, Patents, Meet Napster: D Printing and the 3 Digitization of Things, 1O2 GEO L.J. (forthcoming 2014) (manuscript at Lo), available at http://georgetownlawjournal.org/files/2o3/lo/Desai-and-Magliocca- D-Printing-Draft.pdf (" D printing 3 3 will unleash the power of digitized things on manufacturers."). 2. See Anna Kaziunas France, Skill Builder: D Scanning, MAKE, Winter 2013, at 92; Sean 3 Buckley, MakerBot's Digitizer Will Go on Sale Next Week, Promises D Scanning to the Masses, 3 ENGADGET (Aug. 14, 2013, 8:05 PM), http://www.engadget.com/2013/o8/14/makerbots-digitizer-will-go- on-sale-next-week. 3. CHRIS ANDERSON, MAKERS: THE NEW INDUSTRIAL REVOLUTION 90-92 (2012); Charles W. Finocchiaro, Note, Personal Factory or Catalystf or Piracy? The Hype, Hysteria, and Hard Realities of Consumer 3-D Printing,3 1 CARDOZO ARTS & ENT. L.J. 473, 473 (2013); Daniel Harris Brean, Asserting Patents to Combat Infringement via D Printing: It's No "Use", 23 FORDHAM INTELL. PROP. MEDIA & 3 ENT. L.J. 771, 771 (2013). 4. Neil Gershenfeld, How to Make Almost Anything: The Digital Fabrication Revolution, 91 FOREIGN AFF. 43, 43 45 (2012). 5. See D Printing:T he Printed World, ECONOMIST, Feb. 12, 2O I,a t 77;A Factory on Your Desk, 3 ECONOMIST, Sept. 5, 2oo9, at 26. August 20141 DECENTRALIZED PIRACY manufacturing and the attainment of economies of scale.6 As a result, manufacturing is no longer synonymous with assembly lines and processing plants. Consumers can copy, adapt,' and design items on their computers and print them out at home, or email blueprint design files to companies that operate more advanced 3D printers.8 By reducing the costs of designing, manufacturing, and distributing goods, 3D printing is predicted to set about an "industrial counter- revolution."9 Although personal 3D printers might not be well-suited for mass scale production, they promise to make households largely self- sufficient.0 As such, 3D printing shifts some core sectors of retailing away from traditional large manufacturers to the various intermediaries that facilitate 3D printing, including (but not limited to) individual designers of blueprints and industries that create and distribute 3D printing technologies and peripherals. Revolutionary, disruptive technologies bring about novel legal challenges." Likewise, 3D printing is likely to raise a host of legal issues 2 Especially intellectual property ("IP") holders are likely to be affected because 3D printing makes the infringement of IP rights cheaper and more attractive.3 While users of 3D printers may end up designing original products or acquiring licensed blueprints from designers, users are also likely to print items protected by IP rights without proper 6. Simon Bradshaw et al., The Intellectual Property Implications of Low-Cost D Printing, 7 3 Scripted 5, II (2010). 7. On the customization possibilities of D printing, see NEIL GERSHENFELD, FAB: THE COMING 3 REVOLUTION ON YOUR DESKTOP FROM PERSONAL COMPUTERS TO PERSONAL FABRICATION Loc. 500 (Kindle Edition, 2005). 8. E.g., Steven Kurutz, Bringing 3-D Power to the People, N.Y. TIMES, Mar. 27, 2014, at Di. 9. See, e.g., D Printing: The Printed World, supra note 5;M arshall Burns & James Howison, 3 DigitalM anufacturing Napster Fabbing:I nternet Delivery of Physical Products, 7 RAPID PROTOTYPING J. 194, 196 (2ooi). Io. See generally Aaron Council & Michael Petch, D Printing: Rise of the Third Industrial 3 Revolution Electronic Book, 2014). ii. On the impact of technological advances on the development of tort law, see, for example, James E. Krier & Clayton P. Gillette, The Un-Easy Case for Technological Optimism, 84 MICH. L. REV. 405, 417 26 (1985) (discussing political obstabcles to the efficient regulation of new technlogies); Richard A. Posner, A Theory of Negligence, I J. LEGAL STUD. 29, 52 57 (1972) (discussing railroad crossings); see also Mark F. Grady, Why Are People Negligent? Technology, Nondurable Precautions, and the Medical Malpractice Explosion, 82 Nw. U. L. REV. 293 (1988) (demonstrating the different effects of durable and non-durable prevention technologies on tortious accidents). 12. These issues include potential claims involving products liability and gun-regulation. See generally Peter Jensen-Haxel, Note, D Printers, Obsolete Firearm Supply Controls, and the Right to 3 Build Self-Defense Weapons Under Heller, 42 GOLDEN GATE U. L. REV. 447 (2012) (describing how 3D printing renders current firearm regulations obsolete); Nora Freeman Engstrom, 3-D Printing and Product Liability: Identifying the Obstacles, I62 U. PA. L. REV. ONLINE 35 (2013) (discussing challenges to product liability in D printing markets); Mark Gibbs, The End of Gun Control?, FORBES.COM (July 3 28, 2012, 4:24 PM), www.forbes.com/sites/markgibbs/2oi2/o7/28/the-end-of-gun-control; Chris Brandrick, 3D Printer Lets You Print Your Own Prescription,P C WORLD (Apr. 19, 2012, 3:59 PM), http://www.techhive.com/article/254118/3d-printer-lets-you-print-your-own-prescription.html. 13. See Bradshaw et al., supra note 6, at E2. 1486 HASTINGS LAW JOURNAL [Vol. 65:1483 authorization. For example, users might download unauthorized blueprints online and print unauthorized reproductions of retail products that violate the exclusive rights of patent, trade dress, or copyright holders. Such IP infringement requires only the purchase of raw input print materials4 and the blueprints, which are often freely available online.5 Although manufacturing and retail industries have always faced commercial counterfeit markets, the digital revolution of 3D printing presents an unfamiliar challenge to these industries: highly decentralized piracy where consumers obtain counterfeit goods cheaply, without assistance from commercial counterfeiters. In this regard, 3D printing presents some of the same challenges as the digitization of music, books, and movies before it. This shift from traditional commercial counterfeit markets to decentralized, non-commercial piracy sets the stage for a potential explosion of IP infringements. IP enforcement against decentralized infringements is an uphill battle, as the entertainment industry experienced in the wake of the widespread use of file-sharing technologies. Commentators already predict that IP enforcement on 3D printing is a lost cause based on the limited success of copyright 6 enforcement against file sharing. What makes IP enforcement so difficult when infringement is decentralized? Is IP enforcement a lost cause in the context of 3D printing? This Article discusses common characteristics of decentralized infringement and the unique challenges they present for the enforcement of IP rights. I argue that decentralized piracy creates unique practical, as well as normative obstacles that render traditional means of IP enforcement troublesome. The social costs of enforcing IP rights in these settings are likely to be high, making alternative regulatory approaches more appealing. Part I of this Article examines the IP rights affected by 3D printing. Part II considers the legal uncertainty involved with 3D printing. Part III describes common characteristics of decentralized piracy and discusses the main enforcement challenges. This Article concludes with a few reflections to address the challenges of 3D printing. 14. Printing Material Suppliers, REPRAP.ORG, http://reprap.org/wiki/Printing-MaterialSuppliers (last visited Aug. 1, 2014). 15. Legitimate blueprint download sites might emerge as well. See GERSHENFELD, supra note 7, at Loc. 590-92. i6. Infra Part III. August 20141 DECENTRALIZED PIRACY I. 3D PRINTING'S POTENTIAL FOR INTELLECTUAL PROPERTY INFRINGEMENTS Producers and distributors of physical objects have generally been shielded from the problem of widespread, direct infringement online.7 As opposed to literature, music, film, and other types of copyrighted content, most physical objects cannot be rendered into a digital format without taking away their utilitarian features. For instance, the unauthorized pictorial rendition of a designer clock online presents potential copyright issues relating to copyright in the photo itself. Such copyright infringement, however, leaves unaffected (and may even promote) the demand for the actual clock as a useful and/or aesthetic physical object. Enter 3D printing. A 3D scanner can create a computer-aided design ("CAD") map of the clock.'8 This CAD blueprint can be distributed on the Internet, and anyone with a 3D printer can print an exact replica of the clock.9 The creation and distribution of unauthorized reproductions of the clock by way of 3D technology potentially infringes on the exclusive rights of holders of utility patents, design patents, and trademarks.20 First and foremost, 3D printing may involve the infringement of multiple patent rights. When a user of a 3D printer renders the physical object that is the subject of a patent, the CAD blueprint might infringe the applicable patent rights on that article. Using a 3D printer to then reproduce a patented product infringes on the patent right. Moreover, any use of the printed object may violate the rights on the patent.2 Second, trademark holders will also be affected by 3D printing. Any sale of a 3D printed object that includes a trademark might infringe on the rights of the trademark owner. In most instances, the user of the 3D printer can avoid trademark infringement by reproducing the product without the logo or trademark. But even on products that do not have a logo, trademark right violations might take place whenever a user seeks to print products that are protected by trade dress. Even if the 3D printer does not seek to include a trademark or the seller does not actively pass off the item as being manufactured by the owner of the right, it might be an infringement to sell any printed products in a shape that resembles I7. Of course, illegal markets for counterfeit goods became more accessible online. Yet, as opposed to digital goods, physical counterfeit goods are relatively expensive to produce and infringement is less anonymous and more risky, since such illicit markets require physical locations and addresses to ship from. i8. See France, supra note 2. 19. PETER SCHMITT, WORKS By PETER SCHMITT 2000-2014 9 (2014), http://web.media.mit.edu/-peter/about/Portfolio-Peter-Schmitt.pdf (last visited Aug. 1, 2014). 2o. For an overview, see Desai & Magliocca, supra note I (manuscript at 2). 21. Id. HASTINGS LAW JOURNAL [Vol. 65:1483 established trade dress. Such unauthorized third-party uses of trademarks constitute an infringement, and sales of those products might run afoul of the post-sale confusion doctrine even if purchasers are not confused.22 Finally, 3D printing technology also presents challenges to industries protected by copyright law. Whenever 3D printers are used to make counterfeit items, this might infringe the copyright on creative designs that appear on such items. That is, if the decorative features of a product can be separated, either physically or conceptually, from the useful aspects of the article,23 then the holder of the copyright in the aesthetic design has a potential claim against any unauthorized reproduction.4 Take the example of an individual who reproduces a coat hanger. The individual might have downloaded the blueprint of the particular coat hanger because it is the right size for her wall. If, however, the coat hanger has decorative elements (such as a colorful drawing, etched designs, etc.) that can be identified separately from the useful aspects of the coat hanger, the original manufacturer might be able to bring a claim for copyright infringement for the reproduction of the decorative design. In the context of 3D printing, a copyright claimant can pursue a claim of direct infringement against any individual who reproduced the creative design on a physical object (owners of 3D printers). Claimants may also pursue claims for indirect infringement on the basis of contributory or vicarious copyright liability against manufactures, writers of CAD designs, and other intermediaries that facilitated the infringing activity. 22. The trademark law post-sale confusion doctrine holds that infringing trade dress can infringe upon the rights of the owner of a mark even if purchasers of the infringing product are not confused. See Connie Davis Powell, We All Know It's A Knock-Off! Re-Evaluating the Need for the Post-Sale Confusion Doctrine in Trademark Law, 14 N.C. J.L. & TECH. 1, 35 (2012). 23. The 1976 Copyright Act defines pictorial, graphic, and sculptural works. 17 U.S.C. § ioi (2oii) ("'Pictorial, graphic, and sculptural works' include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."). When a work's useful and aesthetic features are so intertwined that they cannot be separated physically, courts must consider whether there is conceptual separability between the form and function of a work. Carol Barnhart Inc. v. Economy Cover Corp., 773 F.zd 411 (2d Cir. 1985). 24. For a discussion of copyright issues involving D printing, see, for example, Brian Rideout, 3 Printing the Impossible Triangle: The Copyright Implications of Three-DimensionalP rinting,5 J. Bus. ENTREPRENEURSHIP & L. I6I, 163 64 (2OI2); Haritha Dasari, Assessing Copyright Protection and Infringement Issues Involved With D Printing and Scanning, 41 AIPLA Q.J. 279 (2013); Edward Lee, 3 DigitalO riginality, 14 VAND. J. ENT. & TECH. L. 919 (2OI2). August 20141 DECENTRALIZED PIRACY 3D printers also might be used to produce unauthorized derivate works. These secondary derivate work markets, such as t-shirts, toys, and game boards, are a means for copyright holders to recoup some of their initial investment in an underlying music album, movie, or TV show. 25 One might be tempted to suggest that derivate work markets can even explain some creative decisions .26 3D printers enable fans to scan, reproduce, and modify these derivate physical products without authorization. For instance, a fan of the HBO series Game of Thrones, one of the most illegally downloaded TV shows of all time,7 independently developed and printed a Game of Thrones iPhone docking station. Such unauthorized reproductions are appealing in the context of 3D printing because the technology enables fans to create or otherwise obtain customized, altered versions of derivate works. As Deven R. Desai and Gerard N. Magliocca illustrate: Today, if you buy a doll, a Lego set, or a car, the ability to alter, tinker, or improve your purchase is low. 3D printing, however, opens the door to personal improvement. You still buy the doll or dollhouse; but once a child is bored, 3D printing allows you to design and create new heads, limbs, or furniture. Instead of relying on Lego to decide what a piece looks like or does, the consumer can make new ones.29 In this process, 3D printing potentially disrupts the secondary markets that help sustain copyright holders in today's world of illegal music and movie file sharing, where illegal digital downloading has already eroded revenues from record and DVD sales.30 II. 3D PRINTING AND INTELLECTUAL PROPERTY UNCERTAINTY Innovation is often rapid and unpredictable. Legal systems take time to adapt to new technological advancements. Lawmaking is a complex process that involves planning, procedures, and the 25. Take the example of Game of Thrones. Reporting on a recent infringement issue, HBO Vice President of Corporate Affairs Jeff Cusson commented that "with a show like Game of Thrones, the amount of product licensed around.., is exorbitant." Nathan Hurst, HBO Blocks 3-D Printed Game of Thrones iPhone Dock, WIRED (Feb. 13, 2013, 1:57 PM), http://www.wired.com/design/2oi3/02/got- hbo-cease-and-desist. 26. For example, a new generation of toy buyers could help explain the Star Wars and Lego movies, etc. 27. Ernesto, 'Game of Thrones' Most Pirated TV-Show of 2013, TORRENTFREAK (Dec. 25, 2013), http://torrentfreak.com/game-of-thrones-most-pirated-tv-show-of-2o3-131225 ("Game of Thrones has the honor of becoming the most downloaded TV-show for the second year in a row."); Kory Grow, 'Game of Thrones,' 'Breaking Bad' Among the Most Pirated Shows of 2013, ROLLING STONE (Dec. 26, 2013, 2:50 PM), http://www.rollingstone.com/movies/news/game-of-thrones-breaking-bad-among-the- most-pirated-shows-of-2o3-2013 1226. 28. See Hurst, supra note 25. 29. See Desai & Magliocca, supra note I (manuscript at E2). 30. See, e.g., Stan J. Liebowitz, Testing File-Sharing'sI mpact by Examining Record Sales in Cities, 54 MGMT. Sc., 852 (2OO8) (presenting empirical evidence that file sharing is responsible for historical decline in record sales). 1490 HASTINGS LAW JOURNAL [Vol. 65:1483 participation of various stakeholders. The dynamic and unpredictable nature of technological innovation makes it difficult for lawmakers to predict or anticipate forthcoming inventions. As a result, courts and legislators have a difficult time responding proactively to avoid delays between the time people begin to use a technology and its legal classification (including the allocation of liability). Additionally, many areas of law apply open-ended standards. While standards reduce the cost of errors and enable copyright decisionmakers to be more flexible, these open-ended standards increase the number of difficult questions that courts must confront.3' The initial ambiguity as to the potential social and economic implications of a novel technology also contributes to the gap between the use of a technology and its legal classification by courts and legislators. It must first become apparent that the use of novel technology entails substantial opportunity costs to producers-that is, that there are "gains to be internalized."32 Not until the opportunity costs of unregulated use of 3D printers become fully clear will manufacturers push to obtain protection through litigation and legislation. Until then, manufactures and users of 3D printers will continue to operate in a vacuum of considerable legal uncertainty.33 Consider, for example, the difficulty of perfectly predicting ex ante how courts will apply the law to new circumstances ex post.34 31. On the distinction between rules and standards, see, for example, Hans-Bernd Schifer, Rules Versus Standards in Rich and Poor Countries:P recise Legal Norms as Substitutes for Human Capitali n Low-Income Countries, 14 SuP. CT. ECON. REV. 113, 113 (2006) ("Legal norms can be precise rules, which are blueprints for action and allow for mechanical decisions by judges and civil servants. Alternatively, they can be vague, mission-oriented standards, which delegate decisions from the maker of the law to the judiciary and the administration. Rules economize on the costs of adjudication and administration. Standards economize on the costs of norm specification."); Louis Kaplow, Rules Versus Standards':A n Economic Analysis', 42 DUKE L.J. 557 (1992); Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985). 32. On the evolution of IP rights, see Ben Depoorter, The Several Lives of Mickey Mouse: The Expanding Boundaries of Intellectual Property Law, 9 VA. J.L. & TECH. I, 34 41 (2004) [hereinafter, Depoorter, Several Lives]; Ben Depoorter, Technology and Uncertainty: The Shaping Effect on Copyright Law, 157 U. PA. L. REV. L830, 1841 42 (2009) [hereinafter, Depoorter, Technology and Uncertainty] ("The initial ambiguity of the socioeconomic implications of a new technology can be illustrated, for example, by peer-to-peer music exchanges. The music industry discovered that huge profits could be made by delivering music in a compressed format (MP ) only after such exchanges 3 were already relatively common."). See Peter S. Menell, Envisioning Copyright Law's DigitalF uture, 46 N.Y.L. SCH. L. REV. 63, 99 (2002) ("Even with the introduction and rapid popularity of digitally- encoded compact disks (CDs) and the proliferation of microcomputers beginning in the early i98os, the record industry did not appreciate the dramatic changes that would be brought about by the emerging digital technologies."). 33. One current definition of legal uncertainty is that it describes a situation where an act is "said by informed attorneys to have an expected official outcome at or near the o.5 level of predictability." Anthony D'Amato, Legal Uncertainty, 71 CALIF. L. REV. I, 2 (1983). 34. Note that there is a distinction between risk and uncertainty. Individuals are subject to risk if (i) an event may or may not happen in the future, and (2) the chance that the event will happen is August 20141 DECENTRALIZED PIRACY Although uncertainty pervades all areas of the law,5 technological breakthroughs, by their nature, make it more difficult to apply judicial precedent by analogy.6 This is certainly the case for 3D printing. As commentators have noted, 3D printers, like file sharing before them, present a series of novel legal questions that require courts to stretch existing doctrines to a radically new technology. IP rights holders will face hurdles in cabining new uses of 3D printers into existing IP doctrines.37 For patent right holders, 3D printing presents novel legal issues pertaining to infringement. When pursuing claims against individual users of 3D printers, a patent right holder will need to make the case that the creation and distribution of CAD files is the legal equivalent of a use or sale of the underlying patented invention. 8 When suing manufacturers of the printers or providers of the CAD/Computer Aided Manufacturing ("CAM") files based on of patent law's indirect infringement doctrine, patent holders will need to meet the difficult burden of proving that the alleged infringer possessed actual knowledge of a specific, infringed patent.39 As a result, although "consumer use of 3D printers may create multiple instances of patent infringement, policing and protecting patent rights in inventions copied on 3D printers may present significant challenges for patent holders."4 Similarly, trademark owners face a number of obstacles that hinder effective enforcement of their rights. First, trademark owners will find it difficult to enforce their rights as against 3D printouts of trademarked goods when the actual logo or trademark is removed from the printed product, while owners of product configurations will always need to known. By contrast, an event is uncertain if (i) it may or may not happen in the future, and (2)w e do not know the chances that it will happen. See generally FRANK H. KNIGHT, RISK, UNCERTAINTY AND PROFIT (Harper & Row 1965) (1921). 35. On legal uncertainty generally, see D'Amato, supra note 33 (describing a trend toward greater uncertainty); Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257 (1974) (examining the optimal level of precision for rules and standards); Werner Z. Hirsch, Reducing Law's Uncertainty and Complexity, 21 UCLA L. REV. 1233 (1974) (discussing considerations involved in, and obstacles to, reducing uncertainty); Jason Scott Johnston, Uncertainty, Chaos, and the Torts Process: An Economic Analysis of Legal Form, 76 CORNELL L. REV. 341 (1991) (examining how rules and balancing approaches evolve out of litigation). 36. Even what looks straightforward now in hindsight is often anything but obvious at the time a new technology emerges. File sharing, for instance, challenged our understanding of piracy: many direct infringements lack a commercial purpose, and there are no conventional intermediaries. 37. Infra Part III. 38. For an in-depth discussion of the doctrinal issues involving D printing, see Brean, supra note 3. 3 39. See Finocchiaro, supra note 3 (noting that the substantial non-infringing uses of D printing 3 bring the technology closer to the Sony precedent than Grokster). 40. Bryan J. Vogel, IP: 3D Printinga nd PotentialP atentI nfringement, INSIDE COUNSEL (Oct. 29, 2013), http://www.insidecounsel.com/2o13/i /29/ip-3d-printing-and-potential-patent -infringement.html.