Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...
A case involving the online sharing of 3-D printed gun files may lead the Supreme Court to clarify whether digital blueprints are entitled to free-speech protection.
The high court is weighing whether to review a lower court ruling that denied 3-D printing company Defense Distributed’s bid to block the Department of State from requiring the company to obtain approval before posting its files online. The high court is scheduled to consider Defense Distributed’s petition for review at its Jan. 5 conference.
If the court hears the case, it could open the door to answering the underlying question of whether 3-D printing files are protectable speech.
Defense Distributed is asking the Supreme Court to determine whether the U.S. Court of Appeals for the Fifth Circuit erred by not considering the merits of its claim—that applying a pre-publication approval requirement to online computer-aided design (CAD) files allegedly violates the First Amendment.
3-D printers have been used to create products ranging from jewelry to airplane parts to prescription drugs. Applying First Amendment protection to CAD files would “make it difficult as a practical matter to regulate the content of 3-D printing,” James Beck, counsel at Reed Smith LLP in Philadelphia, whose practice includes 3-D printing, told Bloomberg Law. The government would bear a “hefty burden” to show a regulation passes muster under the applicable First Amendment test, he said.
A Supreme Court ruling that CAD files are covered under the First Amendment would restrict the government’s ability to regulate the files due to constitutional protections for free speech, Kelsey Wilbanks, an attorney at Smith Pachter McWhorter PLC who counsels on 3-D printing issues, told Bloomberg Law. The Food and Drug Administration, for example, would be restricted in limiting the distribution of CAD files for 3-D printed pharmaceuticals under such a ruling, she said.
“This is a case where new 3-D printing technology can test the limits of free speech,” Wilbanks said.
Defense Distributed sued the State Department after the department asked it to remove its CAD files for 3-D printed guns from the internet. The State Department said the company needed to get prior approval before posting the files online because they potentially included technical data related to defense articles which foreign nationals could find and download.
Defense Distributed sought a preliminary injunction to stop the State Department from enforcing the requirement. The district court, in denying the injunction request, ruled that national security interests outweighed Defense Distributed’s interest in protecting its constitutional rights. The 5th Circuit affirmed. Both courts sidestepped the issue of whether Defense Distributed had First Amendment rights in its CAD files.
CAD files command a computer to perform some action and are therefore “inherently functional,” Christopher J. Higgins, senior associate and co-leader of the 3-D printing group at Orrick in Washington, told Bloomberg Law. He said CAD files don’t contain expressive elements such as those found in video games, which the Supreme Court has held are protected speech.
Creating or downloading a CAD design file is the first step of the 3-D printing process. After the file is uploaded to a printer, the printer adds the desired material—one layer at a time—onto a “build tray” until the object is created. The coding within the CAD file supplies coordinates to the printer so it knows where to move the print head to extrude the material.
Defense Distributed’s counsel argues that CAD files are entitled to free speech protection because people use them to exchange information and ideas with one another.
“If the court holds that 3-D printing files don’t have the same level of constitutional protection as old school computer files, that would be a tremendous setback for the technology,” Alan Gura, counsel for Defense Distributed and principal of Gura PLLC in Alexandra, Va., told Bloomberg Law.
The Department of Justice, representing the State Department, declined to comment.
The case is Defense Distributed v. Dep’t of State, U.S., No. 17-190, conference scheduled 1/5/18 .
To contact the reporter on this story: Alexis Kramer in Washington at email@example.com
To contact the editor responsible for this story: Keith Perine at firstname.lastname@example.org
Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)