Unleash the Dogs of Law: Product Liability in the World of 3D Printing

The lawyers need to guide the rest of us...
Presently I am approaching the conclusion of a major study into Additive Manufacturing - more commonly known as 3D printing. I am doing so with a sense of relief, regret, starry eyes...and something along the lines of vomit inducing terror. Relief that these 8+ months (most of my other research reports barely run into a month) of work are now reaching a conclusion, regret that what is almost certainly the most fascinating project I have undertaken is now coming to an end, starry eyed as to ongoing involvement with this amazing technology...and the terror because of - as usual - lawyers.

And no, I haven't done anything overly naughty...and been caught. Read on.

Whilst the study will remain the exclusive property of the client, there is one aspect I am being encouraged to share widely, as both the client and myself are in total agreement that this debate needs to be had now - and that is the legal aspect. And I do not refer only to the intellectual property quagmire that is now slowly dawning on people, but to something potentially far more insidious. 

Product liability.

When I undertook the study, the initial scope related to issues such as technical evolution of the systems, the supply chain impact and business models. But soon, it became obvious there was an elephant in the room. Whilst I initially thought that the intellectual property aspect could be well covered by existing research, the matter of product liability was soon elevated to an absolutely critical nature. And the more we looked at it, the more concerned we all became - namely because we don't want a future where our income goes to various lawyers Ferrari payments.

Product liability is one of the more technically challenging aspects of law as it stands, but with 3D printing, the complexity increases significantly as to the possible causal chain - i.e. who caused what to happen and to what degree has it resulted in harm?

With 3D printing, we have a number of potentially involved parties:
  1. The designer of the 3D printer / scanner
  2. The manufacturer of the 3D printer / scanner
  3. The retailer of the 3D printer / scanner
  4. The supplier of the 3D printed feedstock (raw material)
  5. The vendor for the 3D control software
  6. The designer of the printed product
  7. The operator of the 3D printing device
  8. The end user of the 3D printed product
In some cases there may be certain additions to the above, in others a single entity can play multiple roles. But one thing is certain: you don't need to be a lawyer to quickly see a migraine coming on as you try and negotiate this minefield.

Say, for example, I go to a 3D printer store, tell them of a situation I have and they tell me..."Here, I suggest this" and walk out with a printer, scanner, software and feedstock. I use that 3D printer and scanner I bought to create a pushrod for the braking system of a 1969 ZL-1 Camaro - a magnificent car that is worth as much as some classic Ferraris. However, that component fails on the road after a few months and I cause an accident, with some injuries and damage to property.

Clearly, I have liability, and there is no getting around that...but am I exclusively liable? Maybe not.

Some questions to be asked...
  1. Did the scanner fail to properly register the component correctly?
  2. Did the software I use have an omission?
  3. Did the 3D printer not work as intended?
  4. Were there impurities in the feed stock that contributed to the premature failure?
  5. Was the failure actually premature?
  6. Did the store give me poor advice?
  7. Should the store that sold me the 3D printer have known I am idiot who would do this sort of thing?
And if I actually printed the part at a 3D printing facility...well, that's for another day.

Each one of these questions opens up a possible causal chain that extends liability beyond me, possibly lessening my burden. But here we have that word...possible. There are no real precedents so far, but they are not far off. The common law systems of the US, Canada and Australia require some precedent for guidance and at present, that simply does not exist for this technology. 

As is so often the case, the technology - or more correctly its application - is moving ahead of the law.

But for this technology to move forward freely and fully, there needs to be certainty - well, at least more than there is now. We need precedent, we need guidance, we need a path to understand where the chips may fall, because right now we have a murky, uncertain way forward. Many of the the business models that we are creating today are heavily dependent on an understanding of how product liability will apply.

And until we know about accountability, the specter of an explosion of Ferrari driving lawyers remains the most likely view of our brave new world...