Strict liability for individuals? The impact of 3-D printing on products liability law.

Author:Berkowitz, Nicole D.

    Although a relatively new technology, three-dimensional ("3-D") printing has been pronounced an invention with "the potential to revolutionize the way we make almost everything." (1) Worldwide shipments of 3-D printers are expected to surge from roughly 100,000 units in 2014 to over 2.3 million units by 2018. (2) Consumer-sector growth follows significant media attention to the widespread uses of 3-D printing in the commercial realm. For example, the makers of the latest James Bond movie, Sky fall, used an industrial 3-D printer to create 1:3 scale replicas of an Aston Martin for an action scene. (3) 3-D printing has been used by medical researchers to design highly customized life-saving implants for patients. (4) NASA sent a 3-D printer to the International Space Station in 2014 to manufacture spare parts and tools. (5) Goldman Sachs called 3-D printing one of eight technologies set to creatively disrupt and transform businesses. (6) 3-D printing has already become an extremely valuable technology across business fields. As the price of consumer-grade 3-D printers continues to decrease, and more consumers invest in this technology, the entire manufacturing landscape is expected to transform dramatically. (7)

    Despite these remarkable applications, 3-D printing technology is still a relatively young technology. In the mid-1950s, engineers developed inkjet printing using a controlled high-pressure pump to distribute ink droplets onto paper and replicate a digital image in high resolution. (8) 3-D printing technology developed in the 1980s through innovations in inkjet printing technology. (9) In the 1990s, the process of 3-D printing was further refined, allowing these printers to manufacture complex products very quickly. (10) Over the last fifteen years, 3-D printing has experienced additional advances, such as the ability to print metal, clothing materials, and even chocolate, the capacity to manufacture tissues and organs, and the influx of affordable, personal 3-D printers. (11)

    Thus, because of its tremendous power and extensive benefits, 3-D printing offers several advantages over traditional manufacturing. First, it uses material more efficiently. (12) In traditional manufacturing, metal and plastic parts are cut out from larger sheets of material, resulting in the waste of up to 90% of the material. (13) However, with 3-D printing, the material is precisely fused together, with very little wasted. (14) Second, 3-D printers are not subject to traditional manufacturing engineering constraints, which means that 3-D printed objects may be less clunky and contain less surplus material. (15) As a result, a 3-D printed part may be 60% lighter but still as sturdy as its traditionally manufactured equivalent. (16) Finally, 3-D printing offers an inexpensive route to innovation. An amateur entrepreneur could print a single prototype to test and improve his or her invention before investing in large-scale manufacturing. (17) As can be seen, 3-D printing has been used commercially for decades, primarily as a means to make cheap prototypes before manufacturing products on a larger scale.18 But now, as the capabilities of 3-D printers have improved, they have taken on a larger role in the manufacturing of final products. (19)

    At the time of this Note's publication, personal 3-D printers are available for as little as $499, or as much as $4900, depending on the resolution, print size, and numbers of colors in each print. (20) Makerbot, one of the foremost 3-D printer manufacturers, offers a personal 3-D scanner for only $799 that can scan an object in approximately twelve minutes. (21) Websites such as Thingiverse serve as a marketplace for 3-D designs, while other websites allow users to upload their own design that it will print and ship to them. (22) In July 2013, eBay released an iPhone application that allows consumers to buy and customize 3-D printed merchandise. (23) The increasing affordability of 3-D printers also makes it more profitable for retailers to carry 3-D printers. Staples already sells 3-D printers in its stores, and Gartner Consulting projects that seven of the largest fifty multinational retailers will do so by 2015. (24) Even Amazon has created a separate online retail department for 3-D printers and their components. (25) While current consumers are primarily hobbyists, Gartner projects that ordinary consumers will make up a larger percentage of future sales, particularly as user-friendly "plug and play" tools become available, likely by 2016. (26) As personal 3-D printing becomes more prevalent, the possibilities are truly endless, limited only by the users' creativity. While this seemingly infinite potential is quite exciting, it also raises new legal questions: if individuals can 3-D print products, should they be held strictly liable for defective products that they manufacture and sell? And if not, what should be the scope of individual products liability?

    This Note confronts the issues that arise in applying strict products liability law to personal 3-D printer users. Part II will explain the basic technology behind 3-D printing and address the expected growth of the personal 3-D printer market. Part III will discuss the evolution of products liability law and the policy reasons for its transformation. Part IV will analyze the impact of 3-D printing on the underlying rationale for strict products liability. Finally, Part V will explain the advantages and disadvantages of several proposals for resolving these inconsistent policy objectives, ultimately recommending that an affirmative defense for "micro-sellers" will best resolve this issue.

    n. How 3-D Printing Works

    Every 3-D printed object begins with a digital design for the object. Individuals can either develop their own designs with computer aided design ("CAD") software or animation modeling software, or purchase and download designs from an online marketplace. (27) The individual then sends the design to the 3-D printer, as it would any ordinary computer file. (28) This design serves as a "virtual blueprint" for the 3-D object. (29)

    While there are several different methods to achieve 3-D printing, most inexpensive personal 3-D printers use fused deposition modeling technology ("FDM"). (30) In FDM 3-D printing, the individual selects the input material, called the filament. Most personal 3-D printers offer several variations and colors of plastic filament, but industrial 3-D printers can print metal, rubber, and powder filaments. (31) The filament is held in a string-like spool, reminiscent of the plastic lanyard used in children's craft projects, in the back of the printer. (32) After the design is sent to the printer, the printer pulls the filament through a tube and into a nozzle, which heats the material and squirts it out in thin layers over the platform. (33) 3-D printing is also known as additive manufacturing because the printer makes passes over the platform, adds more filament to the platform, and builds the object layer by layer until it is complete. (34) Throughout the process, the layers automatically fuse together to create a single three-dimensional object. (35)

    While the process is similar for personal and industrial 3-D printers, there are some differences between these processes, evident in the quality of the final product. The quality of a 3-D printer is primarily measured by four factors.36 First, quality is measured by the print resolution, which refers to the thickness of individual layers. (37) Personal 3-D printers typically print in a lower resolution than industrial 3-D printers, which means that the 3-D printed objects are less precise, with thicker layers. (38) Second, the number of nozzles, and the respective material fed through those nozzles, differentiates personal and industrial 3-D printers. Most personal 3-D printers currently only have the capacity to print forms of plastic, while their more costly commercial counterparts can print metal, rubber, and other materials. (39) Moreover, personal 3-D printers are usually outfitted with only one nozzle, such that they can only print one material and in one color at time. (40) Some personal 3-D printers may have two or three nozzles. (41) On the other hand, industrial grade printers are commonly outfitted with multiple nozzles. (42) The additional nozzles can be used to print different materials at the same time or can be used to merely print the same material faster. (43) Third, the build volume represents the maximum sized-object the printer is capable of building. Personal 3-D printers have a smaller printing volume than industrial models. While a typical personal 3-D printer might be able to print object up to 8" x 8" x 8", an industrial 3D printer can print much larger objects. (44) Accordingly, personal 3-D printers are primarily useful for printing toys and other small gadgets at this time. Fourth, the print speed affects how quickly the final product can be produced. Personal 3-D printers range in print speed from three to three hundred millimeters per second; (45) in other words, it may take several hours to print even small objects. Some industrial 3-D printers, however, can product objects at speeds 200 to 500 times faster than typical 3-D printers. (46)

    While industrial-grade 3-D printers may have faster print speeds that person 3-D printers, the typical build time is still too slow to compete with traditional manufacturing methods. As a result, 3-D printing manufacturers have targeted print speed as a key area for improvement. (47) As the consumer 3-D printing market grows, the capabilities of personal 3D printers should also expand. (48)

    The 3-D printing market is poised for significant growth among both consumers and businesses. This expected growth is reflected in the value of the market for 3-D printing, worth about $3.5 to $4 billion in 2014 and projected to reach $180 to $490 billion by 2025. (49) One Citigroup analyst,...

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