DiDIY and product liability
As readers of this blog (and of the other content on this website) will know, the advent of DiDIY is set to have a transformative impact on society, by allowing people to create their own tailor-made artifacts, either on their own (using devices like 3D printers) or with the help of other members of the “Maker” community. Parallel to that, however, the spread of DIY digital manufacturing among the general public also raises legal issues, which are increasingly becoming a source of concern - as recently highlighted, for instance, in a white paper produced by Dutch law firm De Clerq Advocaten Notarissen. One such concern has to do with intellectual property: 3D printers and similar devices, especially in combination with 3D scanners, will allow us to replicate various objects with growing ease. How does one uphold trademark and copyright on manufactured goods under such circumstances? A second concern, on which we will be focusing here, relates to legal responsibility in cases where someone gets injured by a defective, digitally manufactured product – the area of law known as product liability.
Consider this fictional yet ever more plausible example. You need a spare part for the stepladder that you use for your work around the home. You find that the cheapest and/or most convenient way to get it is to download the digital blueprint for that part from an online platform - either a free one like Thingiverse, or a paying one like the MakerBot Digital Store - and then print it on your home 3D printer. Suppose then that as you are using your stepladder which is now fitted with this replacement part, the part fails, causing you to fall off and injure yourself. To limit the scope of our discussion, let us assume that the cause of the accident was a problem with the blueprint for that part (say, it was defective, or did not function properly with your particular 3D printer). Who is responsible for what happened to you? Can you hold someone liable for your injuries and demand compensation from them?
On the basis of current European law on product liability, it would seem that the answer to that latter question is a negative one (at least for most European countries). The prevalent legal standard today in the European Union regarding the safety of manufactured goods is called “strict liability”: according to this legal doctrine, the producer of a defective product can be held liable for the harm resulting from its use without the need to prove that they were at fault. In the case just described, could that person be the one who created the digital blueprint that you downloaded? Not according to existing European law: indeed, the relevant legal document, Directive 85/374/EEC on product liability, defines “producers” as those who manufacture a product and put it into circulation. One would assume that the designer of a product does not fit that description – unless digital designs themselves are to count as products, which the Directive appears to deny, though not unambiguously so (products are identified with “movables” and designs are referred to separately). But even if they were to be regarded as products, the Directive exempts producers from liability if they can show that they did not create their product for economic purposes (article 7), as is the case of the hobbyists who share their designs on Thingiverse.
To further complicate things, digital designs are sometimes edited by more than one person. Even if it could be demonstrated that a defect in the design was the cause of your injury, it might not always be possible to identify the particular person responsible for introducing it (and sometimes, of course, it might actually be the user!).
What about the website from which you downloaded the blueprint? Again, if you were to try to hold them liable, the content of the European Directive would cause problems: such websites are distributing digital designs, not manufactured goods, and so may not count as "producers". Furthermore, even if they were to count as such, Thingiverse is distributing those files for free, and not for economic purposes.
Even if strict liability doesn’t apply, however, you could still pursue other legal avenues. For instance, you could try suing the author of the blueprint for negligence, or for failure to warn. This path presents other challenges, however, as you will then need to prove that the person in question was indeed guilty of that offense. And of course, we can imagine many further variations on the case we described (e.g. you might hand over the design to a local hobbyist for printing, rather than doing it yourself), leading to further potential complications.
Should we expect the rise of DiDIY to lead to “a new wave of uncompensated injuries”, as Nora Engstrom asks about 3D printing in an influential contribution relating to the American context? And what should our response be at the level of regulation? Should the laws be changed so as to extend the field of application of strict liability (e.g. by ensuring it covers online repositories for digital designs), to protect prospective consumers of digitally manufactured products like the one in our example? Or should we rather insist that users are personally responsible for choosing to acquire an object on the basis of a design provided by a site like Thingiverse, and uphold a “user beware” philosophy that would help promote innovation among DiDIYers? While it seems desirable to make the law clearer on certain points (such as who counts as a “producer” and who does not), there is room for debate as to what the best solution is to that dilemma.
Our research team at ACT is currently thinking carefully about those issues. So far, our hunch is that it is desirable to find a balance between the promotion of the conflicting values of consumer protection and promoting innovation (as well as the autonomy of consumers), and that creating more stringent laws on product liability might not be the best way of achieving that goal. More flexible solutions might be preferable: for instance, we could work to establish a new certification of quality control by an official institution for designs that had been subjected to appropriate checks. This would to offer guidance for risk-averse consumers, while still allowing others to avail themselves of freely available designs at their own risk.
We look forward to reflecting more on those issues in the coming months, in collaboration with our partners on the DiDIY project.
COUNCIL OF THE EUROPEAN COMMUNITIES 1985. Council Directive of 25 July 1985 on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning Liability for Defective Products. Official Journal of the European Communities.
DE CLERCQ ADVOCATEN NOTARISSEN 2015. The Legal Aspects of 3D Printing from a European Perspective. Leiden/Den Haag: De Clercq Advocaten Notarissen.
ENGSTROM, N. F. 2013. 3-D Printing and Product Liability: Identifying the Obstacles. University of Pennsylvania Law Review Online, 162, 35-41.