Originally posted in the IFLA SpeakUp! blog, run by IFLA’s FAIFE Committee.
Libraries have traditionally acted as facilitators of access to information. In this role, libraries serve as intermediaries not gatekeepers or watchdogs. Libraries diffuse the use of new technologies to their patrons, empowering and unleashing the potential of human mind. The law generally views such intermediaries, especially libraries, not as primary actors when it comes to legal liability. In fact, libraries are risk averse and strive to “do the right thing” by the law. Assessment of library culpability typically focuses on concepts of so-called secondary liability. As a result, the circumstances when a library or other intermediary would be responsible for the unlawful acts of its patrons is quite limited. This is no different when considering the adoption of 3D printing into maker and other creative library spaces.
Existing reproducing technologies in libraries can of course raise issues of liability based on copyright law but a 3D printer allows patrons to print 3-dimentional objects from a replacement part for a home appliance like a toaster oven to container shapes of your favorite beverage be it the fluted Coca-Cola bottle or the distinctive Haig Pinch-bottle scotch. These can raise additional issues of patent and trademark or trade dress, respectively.
A few simple practices, based on established legal concepts of secondary liability should assuage any legal concerns.
The copyright laws of many countries contain specific protection from secondary liability for unsupervised use of reproducing technologies, in qualifying libraries, often requiring the library to post a copyright warning notice. As not all countries have this limitation on liability, IFLA through its efforts at WIPO (World Intellectual Property Association) and elsewhere advocates for such protection across the globe. such provision should apply to 3D printing technologies.
Patrons may also post infringing design files on the library’s web space. Again, many countries have provision for ISP (Internet Service Provider) protections, often known as “take-down” rules. These provisions should also apply to the library when it acts as an ISP. As with copyright law in the realm of patent law secondary liability is easily avoided if the library does not benefit financially from the service—engaging in cost recovery only such as charging for the 3D printing filament—and refrains from active assistance in the printing process. In other words, providing instruction and training in how to use the 3D printer is acceptable but avoid active monitoring or assistance. If intercession is necessary because the device is not functioning or the patron has forgotten how to operate the device, perform the teaching moment then allow the use to continue unsupervised.
Because the 3D technology produces tangible objects, concerns beyond the intellectual property laws may arise. What if harm occurs during or after the printing process? This could occur by printer malfunction, e.g., the printer is spewing molten filament. It may be that one patron has printed a dangerous object such as a plastic knife or firearm and uses it to harm another patron. Concepts of liability in injury law, known in some countries as tort law or the law of delict in others, protects intermediaries. The law may deem a purveyor of equipment, who knows or has reason to know that the equipment may cause harm but fails to warn others, be responsible for that harm. Solution? Let’s return to our facts. When the librarian notices that 3D printer is malfunctioning, burning a patron the likely response is turn off the device and post a warning notice: “printer temporarily out of service.” In the other example a patron uses a printed object to harm another. Here too the law also intervenes. In injury law, the concept of superseding cause breaks the chain of legal causation. Even if one could connect the dots so-to-speak the law says otherwise. When a patron uses a printed object to harm another patron, an unlawful act is committed. An unlawful act is a superseding cause. It would stretch the concepts of legal obligation to hold a person liable because another put their product to nefarious use. As tragic as events may be, it is unreasonable to hold the chef knife producer or automobile manufacturer responsible when someone use their knife to stab another person or run-down another in the street.
What if the library provides instructions (“cheat-sheet” or a LibGuide) that are incorrect? At least in the United States, due in part to the First Amendment, publishers are in very rare circumstances held to be the guarantor of the information produced. This is the case even when the error causes harm such as misidentifying mushrooms as edible when in fact the variety is poisonous and highly toxic.
From the U.S. perspective these concepts are discussed further in the attached file and in MARY MINOW, TOMAS A. LIPINSKI AND GRETCHEN MCCORD, THE LIBRARY’S LEGAL ANSWERS FOR MAKERSPACES (ALA Editions, 2016), https://www.alastore.ala.org/detail.aspx?ID=11548.
Tomas A. Lipinski, a librarian and lawyer is Dean and Professor of the School of Information Studies at the University of Wisconsin Milwaukee and Expert Advisor to the IFLA CLM Committee. He can be reached at email@example.com