3-D printing is one of the most disruptive technologies to penetrate the market place.  While it is currently and extensively used for prototype design, medical devices and creating novelty items, it has the potential for dramatically changing our way of life.

As new technologies emerge and business models come online, we often see a lag in the law and the activities of business and the consumer.  Let’s fast forward a few years while you can still go to your favorite online store, order and pay for your product; but, instead of it being shipped to you, you will be able to download a file(s) and print out your “purchase(s).”

The whole way we “buy” products could change once we are able to download or stream digital files and print them ourselves.  In fact, we would no longer buy anything – we would, in all likelihood, licensing software files and products from the vendor.

When we buy something, we generally have the right to resell it and use it as we see fit.  This is true even with products that are protected by copyright based on the limits of the copyright owner controlling secondary sales under the First Sale Doctrine.  The copyright owner gets to decide who makes the first sale then the person who acquired the lawful copy can resell it (e.g. used CDs, VCR tapes, DVDs, books, etc.).  However, the First Sale Doctrine does not apply to licensed goods.  So, when we license a 3-D file and print out the product, one should not be confused to think they actually own the file or resulting product, it is being licensed.  How do we know if we are buying something and own it or are merely licensing it?  The answer it seems depends on what the vendor calls the transaction.

In a landmark case, Vernor v. Autodesk, Vernor bought legitimate copies of Autodesk from third parties and resold them.  Autodesk objected saying the terms of its license prohibit the re-sale.  Vernor argued that even though the transactions were labeled as licenses, in fact, based on the circumstances they were sales, thus subject to the First Sale Doctrine.  The Ninth Circuit Court of Appeals sided with Autodesk and held the limitation in the license enforceable.  As such software and other products are subject to the terms of the license, which can include no resale limits, the requirement to pay a periodic license fee in order to continue using the product, or any other restrictions that the licensor can think of which they deem profitable.  This issue is not new to anyone who has tried to sell or transfer a downloaded software, a song or an e-book.  The licensor controls the if, when and how you can use, sell or give away the tune or book.  For example, when you license an e-book from Amazon according to the Kindle Store Terms of Use, “Kindle content is licensed, not sold” and there is a limit on how you can use or re-sale your book. The same goes when you license a song from iTunes…“(i) You shall be authorized to use iTunes Products only for personal, noncommercial use, and (ii) You shall be authorized to use iTunes Products on five iTunes-authorized devices at any time, except for . . .”

The Monsanto case is illustrative of this issue.  For 100,000 years farmers have used seeds from this year’s crops to plant next year’s crops.  Monsanto created genetically modified seeds and instead of selling them to farmers, they licensed them.  A condition of the Monsanto license was that the farmer could not use the seeds from the current year’s crop to plant next year’s crop, but had to buy new seeds each year.  The court upheld the terms of the license breaking a tradition which existed from the beginning of time.

Advance high speed 3-D printing will not only change our way of shopping, but also how we are able to use our “purchases,” and which parties are held responsible for their safety.