Speed Scholarship Week Day 1: Copyright and 3D Printing

Welcome to Speed Scholarship Week. The first course is a palate cleanser: a paper that makes its points in a lighthearted way. I was invited to comment on a prize-winning student Note by Kyle Dolinsky of Washington and Lee, on the subject of copyright and 3D printers. The relationship between objects and the computer files that represent them is tricky on its own, but the copyright doctrines dealing with 3D objects and with computer software are notorious for their intricacy. I wondered whether there might be a way to cut through the complexity and get at the real issues involved. And then it struck me—that 3D printers are so miraculous a technology they might as well be magic. What if they were?

Indistinguishable from Magic: A Wizard’s Guide to Copyright and 3D Printing takes Clarke’s Third Law—“Any sufficiently advanced technology is indistinguishable from magic.”— as its inspiration. It imagines a world in which wizards use magic scrolls and wands to make 3D objects, and then gives a playful but rigorous discussion of how copyright law would apply. Here’s an excerpt from early on:

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.” His only good argument that his copy is noninfringing will be that the object is not subject to copyright in the first place. The strength of this argument depends on what the object is. A first-century bust of Homer is in the public domain; duplicating it with my wand violates no one’s rights. A twenty-first-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. 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, such as bicycle racks and casino uniforms. But to understand the Replicio wand, we need to know only whether a three-dimensional object is copyrighted; nothing turns on why.

Indistinguishable from Magic will appear in the spring in the Washington and Lee Law Review. Download it while it’s hot!

Suppose Dumbledore puts an unbreakable spell on a Homer Simpson-replicating scroll with the effect that anyone who tries to read from the scroll or its copies spouts gibberish. The Weasleys do great business selling copies of the enchanted scroll. Are they infringing on anyone’s copyright?

I’d need to know more facts about the scroll’s wording to answer for sure how copyright law would treat this Tongue-Tying Curse.

Would it be enough to know if that the scroll, when recited, produces a perfect replica of Homer Simpson, and that it requires no special creativity (just an enchanted scroll-making machine) to produce the scroll, given the original Homer Simpson bust?

Sounds to me like a 1201(b) issue then. The Tounge-Tying Curse effectively protects a right of a copyright owner, so the Weasleys are trafficking in a product primarily designed to circumvent it.

I’m breaking out of the wizard world.

I’m trying to see if this approach can shed any light on the case where a copyrighted digital thing is broken into peices via encryption. The encrypted text is distributed, but keys are allowed only by paying a rights holder.

So imagine I have acquired a library of digital books. Without permission of the rights holders, I distribute strong-encrypted texts. (maybe on a yotta-storage chip in a reader) Then I go to rightsholder with to the proposition that they can sell keys to device owners without having to transfer files. Is it a violation of copyright to distribute the encrypted files?