Should Rightsholders Partner with Would-be Infringers?

Michael Weinberg of Public Knowledge has a new blog post in which he suggests that intellectual property rightsholders should embrace the 3D printing community, and actively partner with 3D designers and makers. He raises the Game of Thrones example that we talked about here, where nuPROTO‘s Fernando Sosa was served a cease and desist letter by HBO for selling (frankly awesome-looking) 3D printed iron thrones like the one from the show. Weinberg correctly points out that even if HBO is successful in getting nuPROTO to take down the throne, the result is that the world may be left without a product that people wanted (case in point: I’d buy one of those thrones).

He suggests that since negotiating licenses with every unauthorized designer is cost-prohibitive, a rightsholder like HBO could have taken an alternate approach:

One way to do this would be to create a transparent, available license.  Simply put, HBO could make an offer to any designer: turn Game of Thrones into a product.  Let us know about it.  Sell it.  And give us a cut.  They could even include a caveat excluding some categories of products and reserving the right to revoke the license for specific products they find problematic.

This highlights the problems facing rightsholders with respect to 3D printing – loss of control. Weinberg’s solution is really about embracing that loss, which sometimes might be the best path. But I believe it is still up to rightsholders to decide how to protect their intellectual property – meaning a decision to disallow unauthorized use is completely valid. I also believe that demand is a powerful force, and rightsholders must move quickly to make the legal alternatives more appealing than illegal ones. In cliché terms, it means using both carrots and sticks.

In the case of digital music, shutting down Napster and suing users trading MP3s may have stopped a few music pirates. But Napster was shut down in July 2001 and iTunes didn’t exist until 2003 (and its catalog was lacking for some time longer). In the interim, there wasn’t a convenient method of legally purchasing high quality digital music that could replace Napster – in other words there weren’t perfect substitutes and there were high transaction costs. That meant pirates went elsewhere, such as to Kazaa which launched in 2001, looking for easy-to-access digital music.

Today, by offering digital music for sale through many different convenient channels, the problem of substitutes and transaction costs has been largely solved and, no surprise, legal sales continue to rise year over year.

But the music model won’t necessarily work for physical goods. Rightsholders in physical goods have to worry about issues that aren’t such a big problem for music, where the digital files are nearly perfect copies of an original master track. Brand dilution, trade-mark protection, and even strategic planning are all major challenges, especially when the unauthorized copies or uses of intellectual property are poor imitations. Fake Gucci bags don’t just cost Gucci money because someone bought a counterfeit instead of an original, they also harm Gucci’s brand by flooding the market with an inferior but confusingly similar product.

If a rightsholder offers up a license like Weinberg suggests, how do they control quality and consistency associated with their brand? Since they can’t stop the fakes, should Gucci offer the same transparent licenses to knock-off makers that Weinberg suggests for HBO? I think most people would agree they shouldn’t.

Perhaps another option is, well, iTunes again – but the app side of Apple’s store.* Apple has managed to create an app store that markets both ‘official’ Apple apps and 3rd party Apple-compatible apps. All apps are reviewed by Apple before being offered for sale. And Apple takes a cut of every penny spent on apps and within apps on its iTunes store.  Apple is often criticized for not being ‘open’, but you could see how a similar model *might* work for designs and brand-related products – offering quality control through a moderated process. One could go to the HBO online store and download official Game of Thrones designs or authorized user-submitted ones. HBO could then send cease and desist letters to anyone not using its store, without opening itself up to the criticism that there is no legal way to sell to market fan-oriented products that people want.

Either way, I do agree with Weinberg that it is a problem that can only be effectively dealt with if rightsholders are able to offer attractive legal substitutes for new unauthorized products, like 3D printed iron thrones, borne of technological and creative innovations.

*BTW – I’m not an Apple fan-boy. They’re just a really convenient example.

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