Valparaiso University Law Review

Volume 53 Number 3 pp.795-832

Three-Dimensional Printing: Fabricating a Liability Framework

Scott Seville

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Recommended Citation Scott Seville, Three-Dimensional Printing: Fabricating a Liability Framework, 53 Val. U. L. Rev. 795 (2019). Available at: https://scholar.valpo.edu/vulr/vol53/iss3/8

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THREE-DIMENSIONAL PRINTING: FABRICATING A LIABILITY FRAMEWORK

I. INTRODUCTION

“I do not think there is any thrill that can go through the human heart like that felt by the inventor as he sees some creation of the brain unfolding to success.”1 So begins a famous quote by Nikola Tesla describing the thrill of invention. Is it any wonder, then, that modern enthusiasts have flocked in greater and greater numbers to the process of three- dimensional printing?2 With the increasing demand for three- dimensional printing also comes a proliferation of resources for the distribution of designs and products made via that process.3 From hobbyists producing designs on their home computers to large manufacturers now mass-producing parts, a wide array of actors have entered this emerging market.4 However, with an increasing number of actors and an increasing market presence, three-dimensional printing represents a unique series of challenges for the courts.5 Lower barriers to entry into the manufacturing arena have meant that home enthusiasts can design and manufacture products in their homes that may enter the broader stream of products.6 This has allowed micro-manufacturers, individuals rather than companies, to enter the stream of commerce in larger numbers than previously encountered by the courts.7 As a result, previous methods of assigning liability to manufacturers via product liability may not be appropriate to resolve the challenges faced by micro-manufacturers and

1 Nikola Tesla, BRAINYQUOTE, https://www.brainyquote.com/quotes/nikola_tesla_ 127569 [https://perma.cc/XP7B-GKAB]. 2 See What Is 3D Printing? The Definitive Guide to Additive Manufacturing, 3D HUBS, https://www.3dhubs.com/what-is-3d-printing [https://perma.cc/QF9K-82JZ] (graphing the estimated quantity of 3D printers sold). 3 See, e.g., THINGIVERSE, https://www.thingiverse.com [https://perma.cc/7M35-87QA] (sharing designs for 3D printing between designers and enthusiasts). 4 See Lucas Mearian, 3D Printing is Now Entrenched at Ford, CIO (Aug. 21, 2017), https://www.cio.com/article/3214471/3d-printing/3d-printing-is-now-entrenched-at- ford.html [https://perma.cc/9ZFB-QDJX] (providing an example of the impact of 3D printing on mass-manufacturers). 5 See What is 3D Printing? The Definitive Guide to Additive Manufacturing, supra note 2 (displaying the increasing rate of sales for 3D printers). 6 See Brandon Stapper, What Is 3D Printing and How Does It Work?, NONSTOP SIGNS & GRAPHICS (Apr. 12, 2018), https://www.nonstopsigns.com/blog/what-3d-printing-how- does-work/ [https://perma.cc/XNH5-SDY7] (describing the cost reduction during prototyping by 3D printers). 7 See What is 3D Printing? The Definitive Guide to Additive Manufacturing, supra note 2 (listing the number of 3D printers sold). 795

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consumers alike as solutions hich ere aroriate or larger manuacturers may not it ithin the aradigm o micromanuacturing. urther threedimensional rinting carries uniue challenges due to the nature o the rocess itsel. he manuacturer o the rinter like the manuacturer o a scredrier has almost no oreseeaility as to ho the rinter ill e used. et the manuacturer o the scredrier should at least kno that it ill e used to turn scres. his is not true o three dimensional rinters hoeer. ere the rinter manuacturer does not necessarily kno hether a rinter ill e used to make cus a heart ale or een the aorementioned scredrier. ue to this lack o redictaility should manuacturers o threedimensional rinters all e held to the eacting standards needed or heart ales r should manuacturers e held to the lesser standards o manuacturing cus r should those manuacturers e held to some other standard altogether his is ust one eamle o the uniue challenges the courts ace in determining ho to assess liaility hen inuries occur rom the roducts o this industry. In order to assess liaility the courts irst need to deelo a rameork o liaility to rotect consumers and others rom otential accidents and harm caused y this ne technology. In act as this ote demonstrates the asence o a idely alicale rameork o liaility or ne technologies and ne markets has een a challenge or the courts or many decades. uch a rameork ill need to roduce redictale results roide notice to those ho may e eosed to liaility rotect and make hole those inured y the roducts o threedimensional rinting and aoid oerurdening this ne and innoatie ield. these redictaility and notice are most ital.

See id. illustrating the rocess o rinting. See The 9 Different Types of 3D Printers, II httsdinsider.comdrinter tyes httserma.cc elaining the dierent caailities o the arious rinter tyes currently on the market. See, e.g. ddie rassenstein It’s a Screw Driver, It’s a Pliers, It’s a 3D Printed Super Multi- Tool! I. une httsdrint.comdrintedmultitool httserma.cc descriing a scredrier that can e made ith a rinter. See infra art II demonstrating the challenges courts hae aced in the ast inoling emergent technologies. Indeed redictaility in commerce is one o the ounding rinciles o merican democracy. redictaility and uniormity ere considered necessary comonents y the ounders o the onstitution to achiee a result that ould ermit commerce to gro and lourish articularly eteen the seeral tates. See James Wilson and the American Constitution I. I httoll.liertyund.orgagesamesilsonandthe americanconstitution httserma.cc listing redictaility as a key comonent o commercial groth or merica.

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reeDiensinal Printin

his ote irst elores the undamentals o threedimensional rinting ith a rie oerie o the rocess itsel to roide the reader ith a asic ackground. econd it discusses arious traditional rocesses or assigning liaility. hird it identiies the actors ithin the realm o threedimensional rinting and elains their roles. ourth it analyes these actors and their roles against the ackdro o traditional liaility theories. his is olloed y a discussion o the otential roduction o inherently dangerous oects. inally ulic olicy oecties are considered as those olicies may roadly imact otential liaility rameorks or threedimensional rinting. rom this reie and analysis this ote deines a rameork o liaility that rests on three aioms hether the roduct is inherently dangerous hether the actor is a roessional or amateur and the degree o attenuation and oreseeaility eteen the actor and the inury. his rameork ill e alicale not ust to threedimensional rinting ut roadly to other ne technologies and sectors as ell. he asis or this rameork ill e or courts to adot a negligence aroach to inuries caused y three dimensional rinting. his negligence aroach should aly arying duties o care similar to ailment theory in order to etter assign liaility to actors ased on their role relatie to the inury.

II.

e vlutin reeDiensinal Printin

In one o the earliest orms o threedimensional rinting stereolithograhy as atented. ith stereolithograhy an ultraiolet laser strikes a secial acrylic comound creating a solid lastic at the location the laser strikes. his early orm o threedimensional rinting as unreliale arts ared materials ere ery limited and the oerall rocess as ecetionally slo. ore imortantly three dimensional rinters at the time ere etraordinarily eensie and eyond the reach o casual consumers. ast orard to and

or eamle the rameork roosed in this ote ould aly eually to the emerging sector o legal recreational and medical mariuana sales as ell as to ne indmill technologies that hae uickly sread across the country in recent years. See liaeth alermo at Is Sterelitrap I I. uly htts.liescience.comstereolithograhy.html httserma.cc deining the undamentals o stereolithograhy. See id elaining the asic rocesses ithin a rinter during stereolithograhy. See e istr 3D Printin uly htts.casesgo.co.ukhistoryodrinting httserma.cc descriing the early challenges o the rinting rocess. See id mentioning the eensie nature o rinting in the early s.

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consumers can uy an introductory threedimensional rinter rom maon or .. ore adanced rinters and innoations in material rinting design and sotare technologies hae led to rinters that can make metal and materials that can ithstand high temeratures achiee greater recision in inal arts and oerate aster and more cost eiciently. he alications or this technology hae also gron eonentially ranging rom inaluale medical alications to highly diisie uses in eaons manuacturing. long ith idening alications the numer o rinters eing introduced into the marketlace has also soared going rom an industry estimate o ust in to rinters sold in . s the erasieness o this ne technology continues to gro state legislatures ongress and the courts hae only eighed in on exceptionally narrow issues, such as California’s requirement that firearms have a serial number or Congress’s reuirement that all irearms hae a comonent that is detectale y a metal detector. hese narro cases do not address the myriad otential risks aced y consumers o rinted arts hoeer. In order to ensure that manuacturers designers and others inoled in the threedimensional rinting usiness are gien roer notice o otential liaility and to roide suicient

See enerall iS Destp DI 3D Printer wit Instructin ide htts.amaon.comiinstructionaccuracyelassemlyrintingd resrsindustrialieid httserma.cc listing a deskto model rinter or sale. See natol ocker Metal 3D Printer uide–ll aut Metal 3D Printin, an. httsalld.comdmetaldrintermetaldrinting httserma.cc . See oert . cera Dnr euired d Parts u an Mae wit 3D Printers une htts.ores.comsitesroertscerano donorreuiredodyartsyoucanmakeithdrinters httserma.cc descriing the creation o artiicial heart ales ith rinters. See als anna atkin In ustralia, Diital lueprints r 3D Printed uns arr ear Prisn Sentence o. httsalld.comdrintedgunsaustraliarison httserma.cc describing Australia’s attempts to quell the growing aailaility o undetectale and untraceale guns. See ani a rasad ew uture usiness Ideas u eed nw . ct. htts.startucolleges.comneutureusinessideasyouneed tokno httserma.cc roecting ho many rinters hae een sold. See o eauthorie the an on ndetectale irearms .. th ong. deining the an enacted y ongress on nonmetal irearms. See als ena . indley .d –90 (9th Cir. 2017) (adjudicating the reach of California’s handgun ban). See ora reeman ngstrom, 3D Printin and Prduct iailit Identiin te stacles . . . . I identiying as uncontroersial the increase in the numer o actors manuacturing otentially dangerous oects ith rinting.

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protections for consumers, it is necessary to enact a more broadbased framewor within which liability issues can be resolved.

ith the increase in prevalence of threedimensionally printed parts and products comes a corresponding increase in the ris of productbased injuries.2 he implications for productliability jurisprudence have yet to be fully mapped, with scholarly opinion ranging from the dire prediction that threedimensional printing will be the end of traditional product liability to the notion that traditional product liability is sufficiently broad to cover this new technology without major refinement.2 his ote proposes an appropriate liability framewor for approaching this emerging technology. irst, it is necessary to consider, at a high level, traditional methodologies that courts have applied to determine liability. ver time, courts have developed many regions of jurisprudential doctrine to accommodate the needs of those who have been injured and see relief in a court of equity.2 hree regions that should be understood to better frame the liability of the individual actors within the realm of threedimensional printing are negligence, product liability, and bailment.27 hese theories can be distinguished from each other by considering the way in which they assign duty to the actor whose actions predicate the harm, the foreseeability of that harm, the degree of attenuation tolerated between the actors’ behavior and the precipitate harm, the value of the activity to the actor, and the gravity of the harm.2 he first major area is ordinary negligence theory, which relies on a complex and shifting nexus of reasonable foreseeability and gravity of

2 As with any new technology, from the automobile to the cellphone, as the product becomes more widespread, more interactions between the public and the product begin to tae place, obviating an increase in ris that injury will ensue. 2 , ngstrom note 2, at (describing the strong possibility that designs of this type are not products and would not fall within the bounds of product liability as a result). 2 . CA, . . A, CC A AA 912 (d ed. ov. 201) (defining the elements of the modern negligence doctrine). 27 nited tates v. Carroll owing Co., 19 .2d 19 (2d Cir. 197). n udge earned and defined duty of care as a function of the probability of harm, the gravity of the harm, and the burden of taing adequate precautions against the harm. at 17. Judge Hand also previously described these factors as “the likelihood that [the defendant’s] conduct will injure others, taen with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk.” Conway v. O’Brien, 111 F.2d 11, 12 (2d Cir. 190). C . , ACA A 2– 51 (5th ed. 2013) (elaborating on Judge Learned Hand’s theory and Alan Gunn’s economic theory of negligence). 2 , 19 .2d at 17 (assigning liability for negligence based on the probability of harm, gravity of harm, and burden incurred by avoiding the harm).

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potential harm to determine liability.2 Here, the actors’ duties are defined partly by the foreseeability of harm precipitating from their actions, the attenuation of the actors from the precipitate harm due to the length of the causal chain between their actions and the eventual harm, the uestion of whether intervening causes may have broken that causal chain, and the gravity of the harm to be avoided.30 he second maor area is product liability, which places the burden on manufacturers for the fruits of their commercial activities.31 ith three dimensional printing, much scholarly thought seems to either find etension of modern products liability as a desirable conclusion or treat that etension of liability as fait accompli.32 ithin productliability doctrine, the actor’s duty is defined by the role the actor plays in the process designer, manufacturer, or labeler.33 he courts have provided for broad liability for manufacturers, beyond the scope of ordinary negligence for many reasons.3 Among these reasons are a comple and costly process to prove where the negligence took place, deeper pockets among manufacturers both to make the inured whole and to defend against potential wrongful suits if necessary, and a heightened concern for overall consumer welfare.35 he third maor area is bailment theory, which relies on the degree of attenuation between the temporary possessor of an object’s interest in that

2 (outlining the famous Learned Hand balancing test for negligence). 30 (including gravity of harm as well as foreseeability in determining the duty of care). 31 JOHO, note 2, at –01 (outlining the development of product liability as a doctrine for holding manufacturers strictly liable for defects in their products). 32 Aleander . Ackel, ote, , C L. . 122, 13 (201) (recommending the adoption by the courts of a traditional product liability model for the resolution of cases involving 3 printing). van . alloy, ote, , FLA. L. . 11, 122 (201) (positing that the person who clicked print may be held strictly liable). 33 , CALL OO, .L.C., httpswww.cranwellmoorelaw.comArticlesnderstandingthedifferenttypesof productdefects.shtml [httpsperma.ccC] (describing the types of defects under product liability). 3 scola v. Coca Cola Bottling Co. of Fresno, 150 .2d 3, 1 (Cal. 1) (raynor, J., concurring) (eplaining the reasons for etending broad liability to manufacturers under productliability theory). 35 avid . Louisell Harold illiams, — , CAL. L. . 252, 255 (10) (describing the epensive nature of proving fault in a productliability case without strict liability).

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object to deterine iabiity Here, the actor’s duty is defined by the aue of the ossessory interest to the baior as coared to the baiee baior ossessin an object in hich the baior has itte or no interest is said to oe a siht duty of care to the baiee baior hose interests in the object are balanced by the bailee’s interests in the bailor having that object is said to hae accrued an ordinary duty to that object baior possessing an object in which the bailor’s interests far outstrip the bailee’s interests is said to oe a reat duty of care toard the object of the baient ourts then use this trichotoy of duties to assin standards of care that i trier iabiity ross neience, here the duty oed is siht ordinary neience, here the duty oed is ordinary and siht neience, here the duty oed is reat hese three traditiona aroaches, ordinary neience, roduct iabiity, and baient, assin aternatie theories reatie to the duty of care iosed rdinary neience ioses a baancin of duties of care beteen the arties based on a findin of faut roduct iabiity encubers anufacturin actors ith strict iabiity, acin the duty of care aost ecusiey on those anufacturers aients iose a

itan itan, d , nd t statin that a baient is an areeent beteen to arties to teorariy entrust roerty to one, ith a shiftin duty of care deendent uon the benefit deried by each arty Hanes hairo ith, , shoin ho duty shifts deendin on hether the baient has aue to the baior outinin circustances in hich ony a siht duty of care eists orris uto er eton, d , nd t nited ar aiy ns ierside uto, d , nd t , at iustratin circustances in hich an ordinary duty of care eists , d at , d at , d at , at assertin the conditions under hich a duty of reat care eists , d at , d at , d at , at suariin and cateoriin the arious duties of care ithin baient theory , d at , d at , d at rian aras, , , httsayerscoeainfobusinessabusinessabasicsbaient eainyourbeoninsbehindht httseracc definin the duty of care under a baient , , httsacorneedueneience httseraccH acin the iits of neience at hether or not a breach of a duty has occurred H, note , at – discussin the eoution of roduct iabiity and incudin the theory of enterrise iabiity, hich hods a rofitin arty iabe for injuries caused by the roduct fro hich rofits ere ade

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shifting duty of care on individuals based on the degree of benefit that accrues to the bailee versus the bailor

fter understanding potential liability theories that a court ay apply, the net step in a review of the productliability iplications of threediensional printing is to consider the actors involved in that printing process his involves defining the actors and their roles, identifying potential challenges that are uniue or heightened within the field of threediensional printing, and further fraing the tapestry of interactions that ay incur liability ithin the paradig of threediensional printing, there eists any varied actors f priary concern when forulating a liability fraewor are the aer of the printer the operator of the printer the seller of the printed parts and designs the designer of the parts the consuer of the parts and the aer of the raw aterials used during the threediensional printing process also nown as the filaent anufacturer hese actors ay all have a role in a traditional theory of products liability or ordinary negligence if those liability fraewors were etended to icroanufacturers t is iportant to consider, at least in broad stroes, the potential liability of each of these actors in order to understand the boundaries of liability today and to properly frae the policy arguents for where those boundaries should eist

rinter anufacturers

he anufacturer of the threediensional printer is the creator of the printer itself his anufacturer has little insight into the types of tools and products that will be anufactured by the printer hree diensional printers can be used to fabricate virtually anything given enough aterial and tie therefore, predicting the eact products that

, , d at , d at , d at , , httpsdprintingcowhatisd printing httpsperaccH outlining any of the actors involved in the process of printing describing the basics of the threediensional printing process ngstro note , at epounding a line of thought that designs ay not be classified as products at this tie at 35 (defining the initial manufacturer of the 3D printer’s role). , note

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ill e printed on an particular printer is nature an ineact science.5 hile stereolithograph uses plastic photopolmers certain tpes of threedimensional printers can print in metal as ell as plastics and are eing adapted to other tpes of materials as ell.5 s a result the unierse of products that can e deeloped using threedimensional printing techniues is an eerepanding and unpredictale one.53 Demand for more comple hrid printers ma soon see the emergence of more inepensie printers that can handle multiple tpes of materials simultaneousl to mae composite parts hich ould epand the unierse of aailale products that can e faricated.5

. rinter perators

he operator of the printer is “the person who clicked ‘print.’”55 his person ma e a professional running a serice printing products a micro manufacturer or a large corporation.5 ut another a this ma e a small home enthusiast ith limited resources a large traditional manufacturer or an operator anhere on the continuum eteen the to. s a result in man cases the printer ma not hae the econom of scale enoed man traditional manufacturers toda.5

3. ellers of arts and Designs

he seller of the printed parts is not the manufacturer in the traditional sense of the ord.5 he ma not e inoled in the actual creation or design of the product as man enthusiasts rel upon esites for the propagation of their products and designs ith those esites haing almost no direct interaction ith the sellers themseles.5 urther the sellers ma e the home enthusiasts themseles and ma onl e selling

5 note (eplaining the potential to print nearl an oect through additie manufacturing). 5 3D D https3dinsider.com3dprinter tpes httpsperma.cc33. 53 note (discussing the increasing ependitures and applications ithin arious industries of 3D printing). 5 icardo ires – 3D (ept. ) httpsall3dp.commultimaterial3dprintinganoerie httpsperma.ccD D (descriing the currentl aailale printing techniues for multimaterial printers). 55 allo note 3 at –. 5 earian note (illustrating the use of 3D printing at a maor manufacturer). 5 note and accompaning tet (eplaining the aerage income of an indiidual household compared to the aerage aluation of a large manufacturer). 5 note . 5 note 3 (offering designs for hoists and designers to share for 3D printing).

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desins. e to the ntre o threediensionl printin it is ite coon or consers to sipl prchse the desin nd then nctre the ctl prodct in their own hoe et irtll nie to the enironent o threediensionl printin. dditionll consider the preor or possessor o three diensionl desins. s entioned preiosl there eist ner o wesites dedicted to shrin threediensionl desins with the enerl plic. hese wesites perit ter desiners to shre their desins with the plic llowin consers to ccess those desins downlod the locll nd rn the on their locl threediensionl printer. hese desin wesites ct s irtl rketplce o ides with no cler protections or the end conser tht e hred deectie prodcts prolted those wesites.

. esiners

he desiner o the threediensionll printed prodcts is nlike the desiner in trditionl nctrin ornitions. n trditionl nctrin prdi the desin nd prototpin process cn e lenth nd epensie nd is sll prtken either the nctrer itsel or nother ornition tht hnds the desin oer to the nctrer s prt o rinedor echne. ne o the ttrctie etres o threediensionl printin is tht it shortcts ch o the trditionl desin costs. his llows ter ctors to enter rkets tht preiosl wold he hd n ipenetrle rrier to entr de to cost. ndeed een soe ortne copnies he seen the dntes o threediensionl printin nd re electin to se this process oer ore trditionl desin pproches. s entioned oe soe wesites een

llowin none who wishes ccess to plod desins. perittin cstoer to select nd prchse desin to downlod. . keine httpswww.keine.co httpsper.cc CY56] (displaying 3D designers’ wares). note llowin ccess to plod nd downlod etres or oth desiners nd printers o prodcts keine note . keine note proidin n eple o rketplce o desins. hristopher pton httpsto.howstworks.cocosttoildconceptcr.ht httpsper.cc showcsin the costs o desin in odern nctrin enironent. note eplinin cost redction i printin technies. eplinin the hih cost o entr preiosl ond in printin. erin note showcsin the rpid peretion o printin into the wider rketplce.

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eis r designers reely sare eir dwnladale designs wi ird pary nsers.6

5. Cnsers

e nser e reediensinally prined pars ay als e e anarer as disssed ae. ls i a nser is inled in e prining press a reediensinally prined prd r as aal nie a a prd was prined in is way des a ae e consumer’s reasonable expectation of the uses of that product? ree diensinally prined pars are eing re iis wi eery passing year and nser epsre se pars is inreasing.3 i is inreasing pplariy es esins regarding e drailiy and prperies e prds anared wi se presses as ppsed re radiinal anaring enies. ease e prperies prined pars depend n e priner and e priner aerial sed i lgially llws a prds ary r eir rdinarily anared nerpars.5

6 ne 3 (illsraing w wesies eis day a allw pressinals and aaers alie sare eir designs wi e pli). ese wesies en inlde dislaiers desriing eir aiiies as nnerial. ile as nsider in is e is dislaier y isel des n aially appear ree e prd r ere nr esape design liailiy. pswww.ingierse.ing565iles pspera.DY] (priding an eaple is ype dislaier). ein .C. (deining e rle e anare in e 3D prining paradig). nd wa i any wld e e apprpriae nie r a nser s a prd is is a pi spe r is e i is an isse wr nsidering w nie sld nsers e gien wen par r all a prd ey are iliing was il sing 3D prining enies ile in radiinal anaring naniipaed ses and een se isse a prd are penial sres liailiy weer a nser wld reasnaly epe e ale se r isse a 3D prd in siilar ways is a pi a is side e spe is e warrans nsiderain. 3 D D C. (ar. 6 ) psedia.rd.nenrdediana sennews36rdesslargesale3dprining.l pspera. 6D] (desriing e radening appliain 3D prining in ar anaring). iard agley ’ D pswww.sgide.s3dpriningaerialsnews3.l pspera.6] (presening e dieren prperies dieren prining aerials). 5 ean ringer – 3D (an. 3 ) psall3dp.3dprinerilaenypes3dprining3dilaen pspera.5].

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ilament anufacturers

inall consider the filament manufacturer he filament is the “ink” of a threedimensional printer that enables it to create a product s mentioned preiousl threedimensionall printed parts ill hae different properties if printed usin different filaments oeer in this bureonin ne industr exact properties of the indiidual filament tpes are not easil ascertained ithout properties such as tensile strenth seepae tolerance and others the filament ma be unsuitable for man potential uses lso there are fe uarantees of the purit or consistenc of the filament bein used so a product that needed to be printed ith a hih deree of precision miht incur additional ris if manufactured usin a standard filament

hreedimensional printin is hardl the first emerent technolo to challene our leal sstem omputers automobiles the internet and cellphones hae all posed challenes as ell tudin the a in hich the courts and onress hae eoled rules for handlin those other emerent technoloies proides some insiht into rules that could be applied to threedimensional printin as ell ere the focus shifts to the challenes associated ith slol eolin urisprudence reardin the automobile and cellphones specificall

explainin ho filament is used in the actual printin process to create the final products ABS 0.07” 1KG, httpsdiiecom productdetailenmchemicals httpspermacc illustratin the tpes of details that are ien b filament manufacturers d son ar httpsdprintcomuidetoselectinfilament httpspermacc outlinin the need for the correct filament to accommodate a printin ob he author found no uarantees of ualit or consistenc b an maor filament manufacturer as of the time of this ritin n fact one noteorth producer of filament specificall mentioned that temperatures needed for printin ma ar amon printers usin that filament httpsmchemicalscom productsdprintinsuppliesdprinterfilamentsabs httpspermacc shocasin standard filament erbiae httpscorporatefindlacomlalibrarinternetlathereulationofinternet crimehtml httpspermacc proidin an example of the strules faced b the courts in connection ith rapidl eolin technolo illustratin the challenes faced b courts in eepin pace ith internet crime

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neie the it tin e n te the tie h ee n ee t ein ie ith thee ein e t hne ee thn ein e the t in S . . B niee the etin neiene etie t n tie he t n the ie nt neient the t iin the tie n the hin tht iin ne inentin n the nt neient ite ie tht nene in keein ith the ene et n e the t t e en tie n tit e t ehie ein n et tn tht n e e n i thhe n t the intie ein tn tie iene n etin n ee e nin hen iee thh the en t iiit nie the en ee tn ehie iee ee e t the ene iient e etin thee e ne h ee tenti iiit ik tht e netin t thi tie eh t tein i the ent nee etin i t iee tie e in n ient ith eh the h i t t tn ehie he een eniine e ith tie nie inetin in the tehn eent ti ne h eine e nt n the ie tenti iiit ie thi eein ineite tehni neent ein tte t ie

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.

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injury was too attenuated from the actor’s that injury’s causal chain. Stevens’ “rough justice” echoes too well with regards to where such a line may be distinction “between an act of negligence imminently dangerous to the lives of others, and one that is not so.”

A. S

S S S – Stevens’ S . (defining Stevens’ roposed by Cardozo would result in “rough justice”). from liability for those products due to the actors’ attenuation from the causal chain

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s discussed previously, products liability is a form of strict liability in which all that is necessary to recover is a showing that the product was defective in its manufacturing, design, or labeling this allows the injured party to recover from the party who introduced the defect, regardless of whether reasonable precautions were taen. product can even wor as intended yet still be the source of tort liability when the injured party claims that labeling was insufficient in warning of the dangers associated with using the product. ut where and how would a warning label be created with regards to threedimensional printing n the case of a firearm, proposed legislation suggested placing some minimal information about the manufacturer on the firearm itself. Such a label would be impractical in other cases such as heart valves and other structures that reuire a degree of precision or minute detail that would render the minor occlusions associated with an engraved label impracticable. erhaps the label should appear on the website from which the user downloads the design, but what happens when the user is not involved in downloading the design

. anufacturing efects

Some scholars believe that traditional productliability doctrine would best apply where manufacturers produce a threedimensionally

S S (SC) S (. S. ) hereinafter S (defining product liability) S, note , at – (discussing enterprise liability, which attaches liability for injuries caused by a product to those who profited). S, .., inden v. C m., C, .d , (th Cir. ) (elaborating on manufacturing defects) annu v. and over orth m., nc., Cal. ptr. d (Ct. pp. ) (analyzing design defects) ichetta v. Stanley astening Sys., .., . Supp. d (.. a. ) (noting the difference in productliability theories between the S and is that “emphasizes foreseeable risks of harm,” but the S “focuses on “whether the product was being used as intended by an intended user”). S oins v. he Cloro Co., .d , (discussing the potential for liability where warning labels are insufficient). S llan . orpela, . ., B S , ... d () (describing the basic concepts of product liability). S, .., C. C (b)()() (defining the reuirements for those firearms that are undetectable through standard means). his is one of only a handful of legislative attempts to resolve the riss posed by printing. . s with most of the other attempts, it is illustrative in both its narrow applicability and limited jurisdictional reach. . his further illustrates the need for the courts to adopt a broader approach to this technology as the legislatures have thus far been unable to produce widely applicable laws governing liability for injuries from printing. S Szczerba, note (discussing the ability to print a heart valve). S, .., , S, httpswww.thingiverse.comthingfiles httpsperma.cc (showing a warning regarding the product design to be downloaded).

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printed product. his comes with seeral challenges, though. irst, who is the manufacturer of a threedimensionally printed product s a manufacturer that simply distributes designs to end consumers, who actually perform the printing themseles, a “manufacturer” or merely a “seller” or “distributer,” and does the distinction actually matter? n other cases, a micromanufacturer who engages in threedimensional printing may merely be performing a serice similar to facsimile and scanning serices offered at arious retailers today and be diorced from inolement in the product itself beyond offering a serice to print that product. lternatiely, courts could apply ordinary negligence to manufacturers, but this comes with the inherent problems that made courts turn away from this in the first place, including difficulty of proing negligence and the inherent issues with causality. nd with so many actors inoled in the process of threedimensional printing, this would proe a difficult and unwieldy area of the law to adopt a res ipsa approach simply put, the manufacturer of the printer can point to the operator, the operator can point to the designer, the designer can point to the type of filament used, and so on. one of this liability deflecting gets the inured party closer to reliably and fairly being made whole.

S ckel, note , at adocating for etension of traditional productsliability approaches to printing). S . . . ) permitting a productsliability action against a sellerdistributor of a product). B ohnson . ecreational uip., nc., .d , ash. t. pp. ) stating that a seller could only be held liable under a productsliability theory where the product was branded or marketed in the seller’s name). S, .., S S, . , httpswww.officedepot.comcmprintand copysamedayprinting httpsperma.cc offering printing and scanning serices). S alsgraf . ong sland .. o., .. .. ) describing the differing and challenging problems associated with defining the boundaries of causation). S, .., right . arter, ..d , nd. ) illustrating the need to determine which actor had eclusie control in finding liability based on res ipsa louitur). ome may analogize this liability deflecting to S . . ummers . ice, .d al. ) holding liability shifted to two defendants when plaintiff was shot by one but was unable to proe which defendant because the plaintiff was placed “in the unfair position of pointing to which defendant caused the harm” and both defendants were “in a far better position” to exonerate themselves). However, in S, defendants were still responsible for ensuring the instrumentalities within their control guns) were not negligently used. . ere, not only are printers no longer within any alleged manufacturer’s control but also manufacturers of printers cannot reasonably be held responsible for how their products are used and for what products their product later produces. dditionally, S’ theory of alternatie liability reuires proof that all defendants hae acted tortuously, which is too high of a bar for the plaintiff in cases inoling all the arious actors inoled in the process of manufacturing products. , note , at citing G . ., al. ptr. t. pp. ). inally, S has yet to be uniersally accepted.

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or would an adaptation of the lastcarrier rule work in this instance. here are many reasons for this. irst, there is no clear chain of custody in many cases. econd, actors can assume multiple and shifting roles during the production process. inally, and perhaps most importantly, by the nature of the printing process, a threedimensionally printed product can defy standard approaches to inspection and detection of defects such that it would unfairly burden the final actor. ourts may reason that this would incentivie those final actors to monetie their risk and pass those burdens onto other actors, achieving a costspreading effect, but without some preexisting framework of liability to rely upon, this approach may also be inadeuate.

. esign efects

he next area to consider is whether extending traditional product liability to the designer of threedimensionally printed obects would be sound policy. “A person who never made a mistake never tried anything new,” and this can certainly be said of the vast number of designers who

S, .., . citing . , ..d inn. t. pp. ) declining to follow S “on nearly identical facts”)). he lastcarrier rule states that, where damage occurs during a multistage voyage to a parcel involving multiple carriers, the burden is on the last carrier to show that the damage did not occur during that stage of the ourney. Here, the author hypothesies a kind of “last manufacturer” rule in which the chain of actors involved in the production of the product would be subect to a type of res ipsa inuiry beginning with the final actor and working backwards. S, .., ransatlantic arine laims gency v. “OOCL Inspiration,” 137 .d , d ir. ) applying last carrier logic). manufacturer can actually be the home hobbyist who is consuming designs published either freely or for sale online. S H, note providing an example of a website that specialies in sharing printing designs). ould this person, as the manufacturer, be in the unenviable position of being the last carrier when she suffered the inury and thus forced to rebut the presumption that the issue occurred during her part of the custody chain? S, .., M/V “OOCL Inspiration,” .d at – explaining the application of the lastcarrier rule). S, .. H, note illustrating a website in which actors can fill varying or multiple roles). he difficulty here is that threedimensionally printed products are, in vast maority, opaue structures whose inner portions, while potentially vital to the functional capacity of the final product, are virtually impervious to traditional error detection. or some view of the enormity of this problem and the complexity of proposed solutions, an excellent article on the topic is included here. S ole . rubaker et al., G , . . ., no. , , at , – proposing a possible solution to defect detection). S asil . arkesinis, , httpswww.britannica.comtopictort httpsperma.ccH describing the lossspreading goal of tort law as a means to protect individuals from being unduly burdened as individuals from the effects of accidents).

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are constantly eperimenting in the realm of threedimensional printing.1 Ordinarily, under product liability, designers are liable for any defects in the designs they produce.17 everal problems with this approach are selfevident upon closer eamination, however. irst, designers in a traditional manufacturing environment are ordinarily highly incentivied for their wor, and there is a high barrier to entry for designers due to the epensive process of prototyping and previously eorbitant costs of design software.1 As mentioned previously, one of the greatest advantages to threedimensional printing is that these barriers to entry are greatly lessened.1 he side result is that this permits amateurism and hobbyist involvement in producing designs.13 If an amateur designer came up with a new brae pad, would it be appropriate for an automotive company to purchase that design for a miniscule amount and then refer potential tort suits due to a design defect bac to that designer his is a facially unacceptable outcome. Another issue with placing traditional products liability on designers is that designers may not always be easily identifiable, and if they are identifiable, they may be uncompensated.131 In traditional manufacturing, designs are ordinarily rigorously tested and designers often highly compensated.13 ue to the hobbyist nature of the three dimensional printing environment, many designers may choose to post designs to websites with or without compensation and even without sharing their names.133 If liability for a design defect is placed solely with the designer, an inured party might be faced with trying to trac down an anonymous designer. urther, there is a genuine debate as to whether a designer can be liable for threedimensional designs as these are not

1 Albert instein, AIO, httpswww.brainyuote.comuotesalbert einstein17 httpsperma.cc3A. 17 annu v. Land over . Am., Inc., 1 Cal. ptr. 3d , 1 Ct. App. 11) ichetta v. tanley astening ys., L.., 1 . upp. d .. a. ) determining that a design defect eists when a product is manufactured according to the intended design but that design is inherently defective). 1 , Lampton, spra note setting the cost of car design for a maor manufacturer as high as 3,, most of which is in designer salaries). 1 at is rintin initi i to iti Manatrin, spra note reducing epenses through the use of 3 printing). 13 atie acdonald, o o t tart In rintin OLA CAIC Apr. , 1), httpswww.popularmechanics.comtechnologygadgetsa1getstarted3d printing httpsperma.ccA providing a howto guide for starting as a home hobbyist 3 printer for under ). 131 , II, spra note 3 providing an eample of a website where 3 printing designs can be echanged). 13 , Lampton, spra note httpsperma.cc. 133 , II, spra note 3.

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“products” in the traditional sense but rather can be likened to information or code.13 Ordinary negligence cannot be an appropriate solution either. Ordinary negligence for a designer would have to entail a difficult foray into discerning whether appropriate measures of care were taen during the design process.13 his foray would be further complicated by the myriad unepected uses to which a threedimensionally printed obect might be placed.13 or eample, a designer may have created a mas based on the movie, V or Vntta.137 as the designer considered whether the mas would be safe for children of all ages or pets hese are considerations that are liely outside the purview of a hobbyist designer and unliely to be foreseeable.13 Attempting to apply ordinary negligence to such situations would burden the courts with the unenviable tas of assigning reasonable and foreseeable standards to hobbyist activities.13 his would almost certainly result in verdicts that either leave inured parties absent compensation or overburden those designers who are too attenuated from the end consumer to truly have contemplated the inury and its avoidance during their design.1 or these reasons, ordinary negligence would be inadeuate as a solution encumbering courts, victims, and designers alie. As discussed above, traditional tort liability models of product liability and ordinary negligence are insufficient to address the uniue issues raised by threedimensional printing. his is partly due to the lac of a traditional manufacturer in many cases, the lack of a “product” where data is treated lie information, the presence of amateurs and hobbyists in the manufacturing process, and limited means of effectively cost spreading riss. herefore, a liability framewor needs to be adopted that serves the crucial purpose of insulating consumers while simultaneously

13 ngstrom spra note 3, at 3 discussing a scenario that some members of the legal community have taen to indicate that 3 designs are not products and therefore incapable of sustaining a cause of action based in product liability). 13 attman v. ann et al., 71 ..d 3, 3 a. Ct. App. 1) defining the need for proimate cause to support ordinary negligence). 13 , Mas o Vntta rint Mo, CA, httpswww.cgtrader.com 3dprintmodelsartothermasofvendetta httpsperma.cc7 providing an ecellent eample of a endettastyle mas). 137 I 13 Amir iriti, orsaiit an roiat Cas in an Inr Cas, ALLLA, httpwww.alllaw.comarticlesnolopersonalinuryforeseeabilityproimatecause. html httpsperma.cc defining the relationship between foreseeability and proimate cause in a tort suit based on a cause of action for negligence). 13 ngstrom spra note 3, at 3 describing the means by which 3 printing breas the traditional tort foundation of manufacturertoconsumer relationships). 1 iriti, spra note 13 outlining the need for foreseeability in a personal inury liability suit).

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addressin both the uniue nature of the product in threedimensional printin as well as bein sufficiently predictable in the assinment of liability to proide notice to the actors of their potential liability

hallenes niue to the arious ctors

p to now, this ote has considered the broader challenes to applyin traditional liability theories to the threedimensional printin paradim as a whole ow this ote will narrow the focus to consider the challenes faced by the specific actors within the field of three dimensional printin arrowin the iew of the liability uestion to indiidual actors will proide further insiht into the practical challenes of applyin eistin liability approaches to this technoloy

a rintr Manatrrs

ome may arue that the manufacturer of the printer itself should not be liable, as the printer operated as desined i, created a three dimensional obect oweer, leal theory has been presented that the manufacturer of the printer may be liable, and that theory appears, at first lance, to hae sound underpinnins when one considers that three dimensional printin naturally inoles a heihtened potential for the creation of obects that are best left to standard manufacturin processes or eample, one would not want to print a brakin mechanism for an automobile, een thouh such a part could be manufactured on a threedimensional printer because such parts undero riorous safety considerations in standard manufacturin as well as post manufacturin inspections his encapsulates the issue with three dimensional printers due to the nature of the printer, there are irtually limitless uses to which the printer can be put, and many of those uses are not reasonably foreseeable to the maker of the printer he issue, then,

spra ection eplainin some of the risks associated with traditional forms of liability as applied to printin spra art definin the types of actors enaed in printin today , spra note , describin the ways in which liability attaches durin manufacturin hen an, n Cassia otrins o rots Liaiit nontr rintin Cans in t Lansap, , statin that, while difficult from a pramatic iew, manufacturers of printers may be liable for defectie products produced on those printers his is a common theme amonst scholars in this area—not that printer manufacturers would not be liable but that they would be difficult to proe defectie I , , httpswwwthiniersecomthin httpspermacc offerin the desin for a screw and nut to the downloader hile it is predictable that a downloader would use the screw and nut to hold somethin

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rinsiona rintin

rintr Oprators

“manufacturer” in traditional product liability, but the operator involvement in that product’s design or intended use

arts rs

C rintin ri init ipnt operator the “manufacturer,” or does that distinction belong to the company that leased the “manufacturer” at Constitts a Manatrr an o Is a Manatrr nr a Las spra

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though, sellers could potentially evade liability under a products liability approach because they are not involved in the manufacture or design of the product they are selling, even though the end consumer is not in a negotiating position ith the seller and lacs the sophistication to protect himself through properly testing the printed products urrently, traditional product liability models may not reach purveyors of threedimensional product designs, such as ebsites that specialie in these designs, as they are neither manufacturers nor designers themselves and therefore fall outside those models of liability urther, ordinary negligence may be insufficient due to the aforementioned limited foreseeability of harm, particularly ith ebsites that permit posting by the general public yet may fail to serve the general public’s need for consumer protection.

sinr o t arts

he designer of the threedimensional products, as previously mentioned, may be an individual ho is oring as a professional designer for a large manufacturer, or he may be a home enthusiast designing as a hobby ith limited eperience or epertise n the eample of the threedimensionally printed brae pad, consider the differences beteen these to actors nder a traditional theory of product liability, a design defect ould be the responsibility of the designer, not the manufacturer herefore, a large car manufacturer might escape liability based on design defects by utiliing designs by third parties, even amateurs his result leads to unrecoverable damage aards and inured parties ho ill not be made hole nder a negligence theory, the consumer ould be placed in the unenviable

ngstrom spra note , at outlining some of the potential problems of introducing micromanufacturers to the maretplace , , spra note eposing printing designs to the consuming public via a ebsite aso ngstrom spra note , at describing the limitations of traditional product liability in reaching the actors involved in printing , spra note , at –19 (noting that some scholars use “foreseeability” as “the key consideration in proximate cause inquiries”). aso anes v hapiro mith, , – eplaining hen ordinary negligence may apply to a bailment ection defining the role of the designer in printing , aller v ron or eal o, al pp th , outlining the assignment of liability to those ho are responsible for defective designs in product liability v iorsy ircraft orp, o cv, al ct , finding that lac of involvement in the design or manufacture of a helicopter part that failed as sufficient to grant summary udgment to one of the parties

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position of attempting to sho ho the car manufacturer as negligent.1 he reasons for the deelopment of product liability in the first place included the expense complexity and difficulty of proing negligence in cases such as these.19 or these reasons traditional liability frameorks are not an appropriate fit to accommodate the challenges of the threedimensional printing paradigm. nstead a frameork must be deeloped that shifts the burden to the party best positioned to preent the loss.

n Consrs

ne of the largest concerns ith threedimensional printing is that end consumers may take the place of the manufacturer by printing the product themseles.1 his is particularly concerning hen professional manufacturers offer designs for sale for consumers to donload and print.11 hen an end consumer prints a brake pad and installs it the end consumer has no usurped the place of the manufacturer.1 nder product liability if that brake pad fails and causes an inury to an innocent bystander the consumer may not be able to repay the harm caused to the bystander and may face a lengthy and uncertain process of attempting to sho any liability on the part of the design that he donloaded. lternatiely a negligence frameork might make more sense but the courts ould hae to untangle ho is actually liable beteen the printer manufacturer the designer the pureyor of the design and the end consumer that donloaded the design.1 his ould necessitate

1 C isner . ields 99 ..d 1 (rk. t. pp. 1999) (illustrating in the ords of an expert witness the “difficult to prove” challenge in complex negligence cases that led the courts to the doctrine of res ipsa loquitur). 19 scola . oca ola ottling o. of resno 1 .d 1 (al. 19) (raynor . concurring). 1 spra note (shocasing an example of an open marketplace for designers and consumers to freely exchange transactions). 11 rinta Mos httpd.ford.comd printables.html httpsperma.cc (proiding an illustratie example of a maor manufacturer no selling products for the consumer to donload and print). 1 r as discussed preiously the end consumer may attempt to point to the manufacturer of the printer itself but this ill be a difficult aenue to proe due to the lack of foreseeability of this use of the printer and the number of other actors inoled. discussion spra note 1. or example the person running the printer often must manually clear some of the detritus and scaffolding created during the process of printing. t ill be irtually impossible to kno hether some failurecausing irregularity resulted from the printer the filament manufacturer or the end user of the printer. 1 in ott Laoratoris extended rs i based in part because identifying the manufacturer was “impossible” and could not “reasonably be said that one either plaintiff or defendants is in a better position than the other to make the identification. . . .” indell . bbott abs. 1 al. ptr. 1 (al. 19) (assigning liability to multiple

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complex litigation to resolve the inury and be administratively inefficient. nstead a liability framewor should place the burden on the professional actor where that actor can reasonably foresee the eventual inury.

iant Manatrrs / istritors

Neither would the producer of the filament, the “ink,” used by the threedimensional printers to mae the products be an appropriate candidate for traditional theories of product liability. ere at last there is a manufacturer in the usual sense as filament maers are typically manufacturers. owever the manufacturer does not actually produce the product. ather the filament is a fuel to produce the final product. s such the filament manufacturer would not liely be reachable under a standard productliability theory. ecause the filament manufacturer would not be involved directly in the manufacture of the final product the filament manufacturer could not be said to be on notice as to potential liability nor could such a manufacturer be reasonably held to foresee the universe of products to which the filament might be applied. ecause there is a lac of foreseeability and the decision to use the filament to manufacture a product that could not reasonably have been foreseen would liely be treated as a superseding act breaing the causal chain it is unliely that any recovery theory based

defendant drug manufacturers mareters and promoters based on proportion of maret share unless each defendant could show “it could not have made the product which caused plaintiff’s injuries”); Summers v. Tice, 199 P.2d 1 (Cal. 1948). But again, this case is unlike manufacturing of threedimensionally printed products because here the consumer is actually using the product to manufacture more products that are both unpredictable and uncontrollable. hus any maretshareliability approach would be insufficient. spra note at – citing multiple sources elaborating on the conflicting views regarding adoption of maretshare liability. ouisell illiams s Ipsa Loitr–Its tr in Mia Maprati Cass . . . defining the high cost of traditional methods of proving causation. httpswww.dxtech.com httpsperma.cc (providing a representative example of a filament manufacturer’s website). att etronio o rintin ta ors httpsmashable.comdprintingexplained httpsperma.cc describing how filament is merely the fuel or “ink” that 3D printers rely upon). i explaining how filament is used within a printer to produce a final product. C spra note at outlining the limitations of foreseeability and negligence. aso inden v. m. .d th ir. demonstrating that a defect in manufacturing reuires a departure from the design. ecause the design of the filament is not limited by any specific content guarantees proving a departure from that design would be a very difficult tas for the consumer. etronio spra note highlighting the uses of filament in printing. C alsgraf v. ong sland .. o. .. .. illustrating the differing views on the boundaries of causation between ustice ardoo and ustice tevens.

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on ordinary negligence would apply as well.1 or these reasons, traditional liability models may be inappropriate when applied to filament manufacturers. rom this analysis of the actors involved in the threedimensional process, a pattern of common issues among the actors is identified limited notice due to degrees of separation between the various actors; limited foreseeability of harm; the absence of a traditional “manufacturer” to whom to assign a duty of care; and amateur involvement in this innovative field. successful liability framework for threedimensional printing should therefore address these uniue challenges while accomplishing traditional tort goals.11

4. nherently Dangerous bjects

ny discussion of threedimensional printing in a contemporary sense inevitably must contain some mention of the debate surrounding the use of this technology to print guns.12 ecently, Defense Distributed went live with its DefCad website, a marketplace for sharing and downloading the designs to threedimensionally print guns.13 This marketplace offered users the opportunity to buy and sell their designs for threedimensional guns and featured plans to download an 1 before the marketplace was temporarily halted by a federal judge.14 Prior to the temporary restraining order, 323 downloads were recorded of the design for the 1, and the 1 was not even the most popular model by number of downloads.1

1 Tikriti, note 138 (defining the interaction between foreseeability and proximate cause in a suit for negligence). 11 NSN, note 2, at –1 (outlining popular policy arguments in tort law). 12 mma oollacott, , BS (ug. 1, 218), httpswww.forbes.comsitesemmawoollacott21881debateover3dprinted gunsrampsup httpsperma.ccCBT (describing the facts of the current debate between Defense Distributed and others over restrictions on file sharing of 3Dprinted gun designs). 13 Charlie sborne, Defense Distributed Now Sells 3D Gun Blueprints Online, ‘Pay What ,’ DNT (ug. 29, 218), httpswww.dnet.comarticledefensedistributed nowsells3dgunblueprintsonline httpsperma.cc934. 14 DCD, httpswww.defcad.com httpsperma.cc2DB (providing a digital marketplace for 3Dprinted guns). on Berenguer, , N D (ug. , 218), httpswww.gunworld.comnewsdefcadcomgoesdarkasjudgeblocksreleaseof3d printingofguns httpsperma.ccDD4 (reporting that the DefCad website had been blocked by a temporary restraining order by a federal district judge in Seattle). 1 DCD, httpswww.defcad.com httpsperma.cc2DB (listing the number of downloads of the most popular gun designs for 3D printing).

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othin on the internet is eer really one nce a hih number of eole hae donloaded a articular iece of information from the internet any one of those eole could share that information aain by ostin it to any number of oorlyreulated ebsites en more roblematic these uns can be made undetectable and untraceable s a result these uns ose a secial ris to ublic safety raditional theories of roduct liability are ecetionally unliely to reach the manufacturers of these uns his is because there is no manufacturer other than the end consumer and the un itself may not hae a defect other than the daner it oses to the ublic at lare nd that daner is real threedimensionally rinted un as seied at a airort in ho then is liable for these uns if they are used in the commission of a crime if roduct liability cannot effectiely reach ureyors desiners and manufacturers of these eaons rdinary nelience theory may offer some rounds for a case because the foreseeability of harm from a threedimensionally rinted un is far more reasonable than that of other obects en here thouh the remainin issue is hether the sharin of diital information is too attenuated from the actual inury f Bell is folloed the answer is almost certainly “yes.” n Bell the court found

See enerally perts Deleted Online nforation Neer tually Goes way u httchicaotribunecombluesytechnoloychideleted onlineinformationneeroesaaystoryhtml httsermacc describin retention of online data by comanies See, e op ile Sharin Series Whih One s the Best httsfinancesonlinecomtofilesharinserices httsermacc roidin eamles of filesharin serices to hich a user could ost a rintin desin file See arrian hou 3DPrinted Gun ontroersy erythin ou Need to now, et httscnetcomnesthedrinteduncontroersyeerythin youneedtono httsermacc mentionin the concerns about traceability of rinted uns See id illustratin ho a rinted firearm can be manufactured to be undetectable f iorsy ircraft or o c al ct findin that lac of inolement in either a defectie desin or a defectie manufacture as insufficient rounds to etend roduct liability to a arty See id elainin the limits of the scoe of roduct liability See cott onner S 3DPrinted Gun Seied at eno irport, u httsrcomstorynestsarinteduntaenrenoairort httsermacc reortin on the un seied in a carryon luae at the eno airort See iriti supra note definin nelience as determined by the interlay of foreseeability and roimate cause See supra note at –21 (discussing the rise of the “remoteness doctrine,” hich reuires a close causal lin to establish the causation element for establishin liability See, e ens ornin eynolds obacco o o d iss See ell ambell d e

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21 hreeDiensional Printin 2

that an accident that occurred when three men were cleaning u the deris from a rior accident was too attenuated from the original accident to hold the source of the original accident liale for the secondary accident as well.1 lying this logic to the gun designer or ureyor, a secondary action y the reciient of that design would e a secondary incident searate and aart from the initial act of coneying that design to the reciient.1 herefore, ordinary negligence may not e sufficiently road to comensate those who suffer inury from threedimensionally rinted guns.1 ere, the rolem ecomes clear ordinary negligence may e too attenuated from the rocess to indemnify consumers and the general ulic from inuries caused y inherently dangerous threedimensionally rinted oects, and traditional roduct liaility may hae little to no effect where a digital oect or information may e treated y the courts as not a “product” at all. herefore, a framewor of liaility for threedimensional rinting would e incomlete without a clear and unamiguous assignment of liaility on those actors who are directly resonsile for the design, creation, and romulgation of inherently dangerous oects ia this new technology.

B Publi Poliy onsiderations, the rt of nnoation, and iro anufaturers

to now, this ote has identified the arious reasons two of the traditional causes of action in tort may roe insufficient to roerly comensate those inured y threedimensionally rinted oects. rmed with an understanding that traditional remedies may e insufficient, turn

1 See id at 122 (holding that clean u following the accident was too remote from the causal chain to induce liaility. 1 See id at 12 (descriing secondary incidents as attenuated from the initial causation of an accident. 1 he author acnowledges that many other concerns may act to indemnify ureyors and sellers of guns and gun designs including, ut not limited to, rights coneyed y econd mendment, ree eech, and ongressional cts, which hae indemnified gun manufacturers from liaility for nondefectie firearms. hese uestions are desering of significant discussion ut are eyond the scoe of this ote. he challenge here is that traditional notions of roduct liaility are argualy insufficient to encomass the myriad issues associated with rinted firearms. ey area of distinction is that ordinarily a manufacturer is only liale when the gun acts in a way other than a gun ordinarily should (ie., it lows u in the user’s hand). hreedimensionally rinted guns resent a uniue ris to security for three reasons (1 limited detectaility (2 limited traceaility and ( unlimited roliferation y a single user. or these reasons, the secial riss osed y threedimensionally rinted guns should not e limited to merely traditional forms of roduct liaility, ut courts should tae a much more eansie iew of liaility due to the etreme riss osed y lacing gun designs and the hysical guns themseles into commerce without sufficient checs on the urchasers.

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no to consdr th pulc polcs at pla noln ths rnt tchnolo hch a nor an altrnat lalt raor. rst rnt tchnolos ar portant socal oods. rnt tchnolos crat os pro ualt o l ncras conoc roth and ar crtcal to rtann a coptt postur n a loal art. hr has n an ntrnchd dsr to prnt th rstrant o thos tchnolos—or apl poltcans nrall aod an attpt at sncantl rulatn th ntrnt ond nonds ssus such as chld pornoraph. ll phons r aousl ad possl hn th dral ouncatons osson ro up th onopol ll as hld on cllular tchnolo. d throuh ths lns th oal o ostrn nnoaton ust h on polc ars and th courts hn dtrnn ho to ana th thrdnsonal prntn ndustr. n ans hch courts prt aaturs and hosts ratr la s dstnushn tn prossonal nlnc and ordnar nlnc. hs approach assns a ratr dut o car to thos ho ar prossonals or ho art thsls as prossonals. n dlopn a raor o lalt or thos nad n thr dnsonal prntn a slar dstncton a allo th larr

See, e a saran ow erin ehnoloy s Driin ob reation, New ndustries, . u. ) httpschcut.nthorntchnolos drnocratonnndustrs httpspra.cc arun that tchnolo ncrass o opportunts). d See, e arpr d Publi nterest Groups re Offiials to Protet Net Neutrality, ar. ) httpthhll.copolctchnolopulcntrstroups urocalstoprotctntnutralt httpspra.cc dscrn th poltcal prssur assocatd th ncurn th ntrnt). See also . . . stla throuh ) outlnn pnalts or thos tracn n chld pornoraph onln). See What We an earn fro the istory of Dereulation S eleouniations https.ouncnr.coartclstaslctrcthstoro drulatontlcouncaton httpspra.cc dscrn th tlcouncatons achnts throuh a conaton o drulaton and onopol ndn practcs). See attan . ann t al. ..d a. t. pp. ) plann th standards o car antcpatd o prossonals rsus rs o th nral pulc). See also alart tors nc. . ns. o. o. l. h. pr. ) dnn th crtra to trr th hhr standard o car assocatd th prossonal nlnc). opare supra not attachn spcal lalt to prossonals nad n slln dct products) with supra not statn th lnts or nlnc) and supra not dnn nlnc) and supra not laoratn on th standard o conduct o th rasonal prson). See alart tors nc. . ns. o. o. l. h. pr. ) dscussn prossonal lalt copard to ordnar ndduals nad n th sa actts).

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the balance, then, is “notice.” A framework of liability, to be effective, which serves Johnson’s tort policy of fostering

See supra See supra – d – d d See – d See infra See supra – d – See, e ini Offers 3D Printin Personaliation Series for its ars,

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growing in aoption as well—as a personal service. nnovators are now pshing the ege of this technology to solve basic nees sch as making clothing on their home printer. nthsiasts liken this versatile technology for solving their nees to the fictitios Star re replicator, seeing a ftre in which procts are create in their own homes as neee an traitional manfactring is relegate to a mch more limite role in their aily lives. ith an eye to this potential ftre, any liability framework mst consier the possibility that there may be no traitional manfactrer to which to assign liability at all.

Synthesiin the ssues

rom this balancing of tort policies, a potential framework of liability begins to take shape. A framework of liability shol consier the egree of notice of risk those actors have, whether they have been financially incentivie as professional manfactrers or esigners, an the egree of attenation between those actors an the actal inry. y assigning a ty of care to the actor base on these factors, a cort will be able to assign liability in a preictable an fleible way that may accommoate the nie challenges of the threeimensional printing instry. rom the above analysis emerges a clearer pictre of the parameters of the problem. he actors in threeimensional printing may incle hobbyist esigners with no reasonable foreseeability as to the potential ses or harms from their procts manfactrers who are also the en consmers so that no actal manfactrer is available ner present proct liability makers of printers that are merely the tools for procing the efective en proct filament manfactrers who are argably even more remote from the en consmer an potential harm than the printer manfactrers an the manfactrer who actally rns the printer bt who may have little to no relationship with the en proct being manfactre. hese actors all share two common threas limite foreseeability an limite compensation for the part being proce.

See, e, id See, e, ate aggaley, Soon ou ay Be ble to 3D Print lothin in our Own oe, eb. , , httpswww.nbcnews.commachsciencesoonyomaybe ableprintclothingyorownncna httpsperma.ccJ. See avi ewirt, I’ve Seen the Future of 3D Printing (hin Star re epliator, Jly , , httpswww.net.comarticleiveseentheftreofprintingthink startrekreplicator httpsperma.cc iscssing the ftre of technology. See id (giving an example of the author’s plans to be the manfactrer for himself. See enerally What s 3D Printin, supra note . d.

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ompliating matters further there are inherentl angerous obets versus orinar obets being reate bets that are inherentl angerous arr their on speial riss an b their nature often arr easil foreseeable riss tanar prout liabilit ma not appl to them hoever beause the uestion that must be ase in stanar prout liabilit is hether there as a manufaturing esign or labeling efet gun that fires orretl is tehniall not efetive in that sense an prout liabilit oul not attah oever the angers inumbent upon the promulgation of threeimensionall printe guns are ifferent than those of orinar gun manufaturers uns are orinaril subet to ontrols to ensure that onl those ho are liense an purhase them hese protetions are not available ith the urrent igital maretplaes for firearms s a result of these speial riss an the fat that a gun that ors as esigne might permit those involve in its igital promulgation to esape stanar prout liabilit another threa emerges—that those involve in the sales istribution manufature or esign of inherentl angerous obets have a uniue ut ithin the paraigm of threeimensional printing ue to the unontrolle nature of that istribution herefore a speial ut of

See oollaott ur note (explaining the legal position of efense istribute a purveor of online gun esigns for reproution on printers See ur note at – (listing the funamental poliies unerling tort theor aoring to ohnson See Fiure to rn i of iiit uner Dotrine of Strit iiit in ort See eg oins v he lorox o (illustrating ho a failure to arn an ause liabilit to arise in a ase involving prouts liabilit See gener ur note at – (elaborating on prouts liabilit See eg inen v m (th ir annu v an over m n al ptr (t pp ihetta v tanle astening s upp ( a See anielle urtleben F re unMakers ‘Totally Free of iiit for heir Behavior’? (t httpsnprorgsetionsitsallpolitis fathearegunmaerstotallfreeofliabilitfortheirbehavior httpsperma (outlining that guns that fire as intene o not attah liabilit to their manufaturers See re 3DPrinte un eg httpsriminalefense laeromresouresaregunslegalhtm httpsperma (outlining some of the uniue riss to printe firearms an the attempts to urtail those riss See eg un Stte he oete uie– httpsgunstoarromgunlasstate httpsperma (efining gun regulations on a statebstate basis his is usuall restrite to ault non felons often ith ooling perios prior to issuing a liense to ensure that a gun is not purhase in the heat of passion for use in a rime I See re 3DPrinte un eg ur note (explaining the urrent state of legalie gun manufature via printing See infr art (offering a means for ourts to shift liabilit base on ut of are an the inherent anger pose b the printe obet

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T

—

oare sra – attaches liability to “those who profited by making and selling products” that cause injuries), a sra 402A (“One who sells any product in a defective is subject to liability” if ith a sra – applied the strict liability standard for “abnormally dangerous activities” and a list of ing that the analysis “does not turn primarily on levels of danger”). Bt see trit iaility or orally aeros tivity The eliee Barrier succeeding on “abnormally dangerous activity” ee Sculpteo Details the Hobbyist Market in Their “State of 3D Printing” stry eort ee e sra ee sra ee i — ee istorial Total Market a Float ste a ee e Meia osehol oe

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retained by large, traditional manufacturers.22 As a result, applying traditional product liability to home hobbyists may be too burdensome and impractical. herefore, home hobbyists, those with limited compensation for their involvement, should also not carry the same duty of care as a professional designer or manufacturer.22 A final problem encountered with etending traditional product liability to the paradigm of threedimensional printing is whether much of what is being done is even a “product” as defined by law.22 oday, software, digital subscriptions, and services are often not treated as products and so product liability does not attach.22 herefore, relying upon a traditional product liability framework is likely to be insufficient to ensure protections for accident victims harmed by threedimensionally printed products. rom this summary emerges an overall pattern—that liability in three dimensional printing should not be based on traditional notions of product liability.22 raditional product liability presumes a large manufacturer with deep pockets and greater foreseeability for the uses of its products than is present in the normal contet of threedimensional printing.20 nstead, courts should adopt a liability framework based upon the duty of care owed by each of the actors, tempered by whether the actor is a hobbyist or professional and enhanced if the actor is engaged in the manufacture of inherently dangerous objects. ourts have already

22 See OO, supra note 2, at –0 (describing the tort policies that were developed during the era of larger manufacturers, many of which may be ineffective in practice, principle, or both, today). 22 A natural question to ask at this stage would be, “And how does one determine who is a hobbyist versus who is a professional?” While the separation of the two is a topic beyond the scope of this ote, some insight into how the upreme ourt has separated those who are merely amateurs from those who are in a business or trade can be gained by referring to oissioner roetinger, 40 .. 2, 2–2 (). 22 See eg, ngstrom supra note 2, at (stating that designs that are digital objects are uncertain to be held to be products). 22 hether software is a product, whether it is governed by the nifor oercial oe, and the ways in which liability may emerge for software development is a broad and notoriously ephemeral concept in the courts. urrently, different jurisdictions have approached the problem in myriad ways. See ichard aysman, The an Softare ontracts ecent Deelopents, OA (eb. , 20), httpswww.hklaw.comdigitaltechblogtheuccandsoftwarecontractsrecent developments0220 httpsperma.ccA4. 22 See OO, supra note 2, at 00–0. 20 See scola v. oca ola ottling o. of resno, 0 .2d 4, 44 (al. 44) (raynor, ., concurring) (citing a manufacturer’s ability to better manage the costs of injury as a reason for conferring absolute liability on manufacturers for defective products).

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engaged in this duty of care analysis with bailments, and a similar theory applied to threedimensional printing is a natural fit to the problem.

.

his ote proposes that courts adopt a framework of liability for cases involving threedimensionally printed objects that deviates from current products liability. pecifically, this ote proposes that courts adopt a negligence theory of liability, tempered by a duty of care analysis based on three criteria () whether the actor is a professional or an amateur () whether the object involved was inherently dangerous and () whether the actor was too attenuated from the injury. A duty of care analysis should follow that actors who are professionals and are compensated as professionals for their work relating to threedimensional printing owe a heightened duty of care for the products they design and manufacture. As a result, even slight negligence on the part of such an actor should result in a finding of liability. eneath this group, amateurs who are directly involved or in some way compensated for the distribution of their products to the consumer marketplace should owe a duty of ordinary care for the products they design and manufacture. As a result, ordinary negligence principles should apply. eneath this group, amateurs who are attenuated from the consumer marketplace and are uncompensated should be similar to a bailor who is performing the bailment on behalf of the bailee—only a slight duty of care should arise therefore, only gross negligence will trigger liability. utside of this framework, courts should treat those involved in the sale, distribution, manufacture, and design of inherently dangerous objects as strictly liable for the harm caused by those products. n this way, those who are involved in the manufacture of those products

See anes v. hapiro mith, .. , (.. ) (showcasing alternative degrees of care owed based on the bailorbailee relationship). f nited arm amily ns. v. iverside Auto, ..d , (nd. t. App. ) itman v. itman, ..d , (nd. t. App. ) orris Auto. erv. v. elton, ..d , (nd. t. App. ). f nite ar aily ns, ..d at Pitan, ..d at orris, ..d at . Again, this is similar to the same analysis that takes place in bailment in determining the degree of negligence permissible. See Hanes, .. at (defining a duty of ordinary care in a bailment relationship of mutual benefit). f nite ar aily ns, ..d at Pitan, ..d at orris, ..d at . See Hanes, .. at (outlining how a duty of only slight care arises under a bailment, which is mostly to the advantage of the bailee). f nite ar aily ns, ..d at Pitan, ..d at orris, ..d at .

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Hanes f supra

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William Pollard famously stated, “Learning and innovation go hand will be sufficient for tomorrow.” —

Scott Seville*

See See i

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