The use of additive manufacturing – commonly referred to as 3D printing – by manufacturing companies, retailers, and others is rising exponentially. PwC’s April 2016 report, “3D Printing Comes of Age in US Industrial Manufacturing[1]” confirms that 71 percent of manufacturers already have adopted 3D printing and that 52 percent expect to use it for high-volume production in the next 3-5 years.

As with many technologies, the rise of 3D printing has seen a rise in the development of open source software and hardware. The use of open source brings with it many benefits, but also many pitfalls for the unwary. Users must be sure to understand the rights and responsibilities they undertake when using open source technology.

Open source software

Open source licensing often is found in a variety of software applications, printer controller software, and content files.

Software applications

3D printing requires design and modeling software applications to create object files for printing. A variety of computer-aided design (CAD), drawing, viewing, scanning, and similar content creation applications are available under open source licenses to create 3D printer-compatible files, such as the stereolithography (STL), additive manufacturing (AMF), and object (OBJ) file formats. Such software typically is released under versions of the GNU General Public License (GPL) for free use, distribution, and modification, so long as any modifications are automatically similarly licensed for “free” public use under the GPL. Other open source licenses or custom-created variations of the GPL may include commercial use restrictions, such as limiting software uses and modification to educational or personal uses. Moreover, more complex applications may include a number of software components with different licenses applicable to each component. As a result, it is necessary to review the particular open source license applicable to each software component that might be used to understand the requirements and restrictions that apply.

Controller software

3D printer controller software resides on a 3D printer’s microcontroller. The controller software interprets a 3D printer file and controls the hardware to print the object described by that file. While many printing manufacturers use proprietary software to control the hardware, printing materials, software, and file types used in connection with their respective printers, open source software, like that used with the Arduino and Raspberry Pi microcontrollers, have spawned new 3D printing hardware and software technologies. In fact, Microsoft recently made Windows 10 available with open source libraries to connect Arduino and Raspberry Pi microcontroller boards to Windows 10 devices. Arduino’s open source licenses include the GPL for software, GNU Lesser General Public License (LGPL) for C/C++ microcontroller libraries, and Creative Commons Attribution Share-Alike license for design files. Raspberry Pi-related software is also subject to the GPL and Creative Commons licenses, as well as other third-party licenses. Because open source license terms can vary across different licenses applicable to particular open source controller software, libraries, and related software applications, it is important to consult the particular license requirements and restrictions for the applicable software component, as well as components that interact together.

Content files

Millions of design files for 3D printing are freely shared online. Such files, typically in STL format, may include, for example, original models and scanned objects. 3D content file sharing websites, such as Thingiverse, YouMagine, Pinshape, and MyMiniFactory provide platforms where users can upload and download open source software files ranging from tools and equipment to games and sculptures. On Thingiverse, users uploading files select what license is applicable to the file available for download, often the GPL or one of the Creative Commons licenses. Similarly, much of the content on YouMagine is subject to Creative Commons licenses.

A number of files on these platforms also include “custom” open source license terms that are variations of licenses like Creative Commons. Because a user sharing their design file chooses which open source license applies to that file, shared files on the platform may have different license terms. For example, some files and printed objects are restricted to only non-commercial personal uses while others permit unrestricted uses subject to providing attribution to the creator, others permit use but not sales, others dedicate the copyright interests to the public domain, and others provide different combinations of obligations and restrictions. Thus, a user downloading a shared 3D printer file cannot assume a standard “open source” license applies to all of the content files available online, but will need to review the particular license linked to the file to determine if intended uses will comply with applicable open source license terms.

Open source hardware

While open source software has become largely ubiquitous, open source hardware is less familiar. As part of the open source movement, though, open source hardware has begun to attract public attention for its potential to reduce the cost of manufacturing various goods and reshape the manufacturing and supply chain.

Open source hardware refers to physical artifacts whose design is made open to the public so that anyone can use, build, modify, distribute, and sell it free of charge. According to the Open Source Hardware Association, open source hardware “uses readily-available components and materials, standard processes, open infrastructure, unrestricted content, and open-source design tools to maximize the ability of individuals to make and use hardware.[2]” Open source hardware is intended to give people freedom to control their technology while sharing knowledge and encouraging commerce through the open exchange of designs. Open source hardware is shared by providing the bill of materials, schematics, assembly instructions, and procedures needed to make a replica of the original.

In the 3D printing space, open source hardware primarily has been used in consumer-grade printers rather than industrial-grade printers. Open source-based, consumer-grade 3D printers are now quite common, allowing for low-cost desktop 3D printers that can be used both at home and at research and educational institutions. The availability of open source-based 3D printers has helped drive the recent significant growth of 3D printing.

The largest class of open-source 3D printers are self-replicating rapid prototypers, often referred to as “RepRaps.” These printers can print parts for themselves and, thus, replicate. They can even print most of the parts needed to make another RepRap. A variety of RepRap printers are available, each subject to any one of various open source licenses, including versions of the GPL and Creative Commons licenses.

Other desktop printers using open source hardware also are available. These include the Lulzbot (a product line of Aleph Objects, Inc.), published under the GPL and Creative Commons licenses; the Ember, whose manufacturer, Autodesk, touts as “the first open source, production quality 3D printer[3]” and is published under the GPL; and the Ultimaker (though it is unclear what open source license governs it).

Interestingly, one of the largest early players in the open source 3D printer market is no longer in that market. Until just a few years ago, all of MakerBot Industries’ 3D printers used open source hardware. With the introduction of its Replicator 2 3D printer, though, the company opted not to share the way the physical machine is designed (or its graphical user interface) because widespread copying made it difficult for the company to succeed financially.

Indeed, the continuing use of open source hardware in 3D printers is in flux, in part because of the dilemma encountered by MakerBot and in part because burgeoning competition in the space understandably is resulting in companies seeking to protect their intellectual property. For example, 3D Systems sued FormLabs for patent infringement in 2012, accusing FormLabs of infringing eight patents. The litigation settled in 2014 with FormLabs reportedly paying 3D Systems an 8 percent royalty on all sales for a specific amount of time. While the FormLabs printer was not an open source printer, the lawsuit nevertheless unnerved the open source community. Indeed, the Electronic Frontier Foundation issued a statement in October 2012 asking for help challenging patent applications relating to 3D printers.

Issues

Uses of open source software in 3D printing present potential contract and intellectual property infringement issues. Contract issues arise from obligations and restrictions that may be imposed by the open source software agreements. Intellectual property infringement contains the risk that software applications and content files may include material subject to third-party copyright rights that is copied without authorization into the software or a 3D design file. In addition to copyright infringement risks, third-party trademark and patent rights might also be incorporated into 3D design files and the ultimate printed object without authorization from the rights owner.

Compliance with open source licenses

Open source licenses may include restrictions on how software and content files may be used. Some license agreements do not permit commercial uses of the licensed software. Other agreements are even more restrictive in allowing only non-commercial, personal uses that prohibit both general commercial and educational uses. Failure to review the license terms against the intended uses could lead to a breach of the license and potential damages and/or losing the ability to continue to use the open source software. Because many open source communities seek to ensure that license terms are not breached by end user entities and individuals, it is recommended that the open source license agreement be carefully reviewed for compliance.

In addition to use restrictions, many open source licenses require that the licensed software, including any modifications made by the user, be made freely available to any other users for use on the same license terms as the user was provided in the original open source software. Primarily impacting entities and users who adopt open source software for commercial uses, it is not uncommon for such users to be surprised to discover that the software applications they developed from open source software must be made freely available to others. Often this surprise comes to light when the entity user is seeking capital from a financial institution or during a business acquisition and must disclose all open source software for a consideration of how the value of the company might be impacted if the license terms permit anyone to freely copy the software. It is important for open source software users to consider whether there are “free” distribution requirements and if this impacts the user’s intended goals in using such software.

Copyright infringement – Software applications and content files

Copyright infringement is probably the most prevalent risk in the use of open source software and design/content files. Because it is difficult to know who and what permission might have been provided in connection with modified source code of open source software, there is virtually always a risk that such software could include, whether intentionally or not, material copied from a third party who did not license the copyright in such material.

Such risks are even greater with content files, since third-party design files or the underlying objects may have been copied and included in the content file without the copyright owner’s permission. Examples of such potential infringement include using files that contain third party characters, art works, logos, or designs that are not licensed by the third party as open source content. It is highly recommended that where material likely subject to third-party proprietary rights is the subject of a content file that confirmation of the underlying licensing of such materials be made to avoid possible infringement claims.

Copyright, patent, and trademark infringement – Printed products

Like the copyright risks that can accompany the use of open source 3D content files, the actual printing of the products from the files can lead to a number of other intellectual property infringement risks. First, the object could be a copyright infringement if it includes material copied (e.g., artwork, character) without permission of the underlying copyright owner. Second, the object could be the subject of a design patent and constitute design patent infringement absent a license from the patent holder. Third, the object (or combining several printed objects into an apparatus) could be the subject of a utility patent (e.g., a medical device or machine part) and pose a patent infringement risk if the patentee never granted a patent license. Finally, the printed object could include trademarks that are not licensed for the printed object.

In most instances, such risks are apparent when well-known third-party intellectual property rights are obvious in the content file and object. However, it is important to consider whether third-party infringement risks should be investigated as to the particular uses of 3D software and printed objects available under open source licenses.

Maya Eckstein, JD, is a partner at Hunton & Williams LLP, and heads the firm’s Intellectual Property Practice Group.

Eric J. Hanson, JD, is a partner at Hunton & Williams LLP who focuses on intellectual property, with particular emphasis on the management of patents, trademarks, copyrights, and trade secrets.

Hunton & Williams LLP

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References:

1. “3D Printing Comes of Age in US Industrial Manufacturing.” PwC. Accessed June 27, 2016. http://www.pwc.com/us/en/industrial-products/3d-printing-comes-of-age.html.

2. “Definition (English).” Open Source Hardware Association. 2012. Accessed June 27, 2016. http://www.oshwa.org/definition/.

3. “Materials for Your Business.” Precision Desktop 3D Printer. Accessed June 27, 2016. https://ember.autodesk.com/.