Microscopic End User License Agreement (EULA) for Physical Objects
3D printers will spawn new battles in contract law. Just as computers brought us software with EULAs, and just as the web gave us "terms of service" found through a hyperlink at the bottom of a web page, 3D printers will motivate makers of physical objects to attach contracts and EULAs to those objects. The EULAs might have clauses like this: “By accepting possession of this object, you agree not to create a three-dimensional software representation of it or to reproduce a likeness of it using a 3D printer or other means.”
Here’s an industry example showing the incentives and economics at play. An innovative dentist named Farrand Robson has developed techniques for making oral appliances that help patients with breathing problems. The techniques apparently include making something like a bight splint, custom-fitted for the patient’s mouth, with special features and contours to channel the patient’s tongue forward in his mouth.
Dr. Robson and dentists who have studied under him apparently charge many thousands of dollars to create one of these oral appliances and then to adjust it ever-so-gingerly to suit the patient’s unique mouth. To get a proper adjustment, a patient may have to pay for multiple office visits, which could include distant travel.
Some patients rave about the benefits of Dr. Robson’s appliance, which they wear day after day . . . indefinitely into the future . . . years and years to come.
Over the long term, Dr. Robson’s appliance could be quite expensive, and may not be covered by insurance. Periodically, the appliance may need to be re-evaluated and adjusted, for the patient’s mouth and greater physiology change. Plus, the appliance will presumably wear out and need replacement.
Patient Incentive to Use 3D Printer
A patient could have economic incentive to create/reproduce Dr. Robson’s appliance by himself, or maybe with the help of a professional who charges less than Dr. Robson and his students.
3D technology could help. The patient might scan a 3D image of the appliance into software and then reproduce it using a 3D printer. As 3D printers reduce the cost of producing small, intricate objects, a do-it-yourself patient might make dozens or even scores of versions of the appliance. He might create a custom fit through trial and error . . . try a version of the appliance with one contour, then try another version with a slightly different contour and so on.
In 2004 Dr. Robson filed a US patent application (publication number 20060078840) to seek protection for substantial aspects of his techniques. But my limited research does not find that Dr. Robson has obtained a patent under that particular application. In other words, it appears that some (maybe a substantial portion) of Dr. Robson’s contour techniques are not patented. Dr. Robson does hold older US patent number 5752822, but that patent and any others he may possess probably do not cover all of his techniques.
Incentive to Use Contract Law
Given that an innovator like Dr. Robson cannot rely entirely on patent law to protect his work, he has economic incentive to use contract law. (See note at bottom.)
An innovator like Dr. Robson has incentive to require a patient to sign a contract that the patient will not attempt to reproduce the appliance.
Stranger things are happening in healthcare contract law. Some doctors require a patient to sign a contract that chills or restricts the patient’s freedom to comment about the doctor in public media such as Yelp!
Microscopic Contract Terms and Conditions
An innovator like Dr. Robson has incentive go one step further. He could affix a contract (like a EULA) to each appliance. How might he do that? For one, he might affix a small QR code (barcode) to the appliance. When an observer reads the code with an app on a smart phone, the phone could take the observer to a web page that presents the contract terms: “By accessing this oral appliance, you agree . . . ”
In addition, an innovator like Dr. Robson might embed the contract terms microscopically into the material of the appliance itself. Dr. Robson himself might use a 3D printer or other precision technology to incorporate tiny words into the appliance. The appliance might feature a larger notice that can be read with the unaided eye: “Subject to terms written microscopically herein.” That may be enough to put smart people on notice that they are subject to the terms and need to get a microscope to read them.
Mr. Wright teaches the law of data security and investigations at the SANS Institute.
Note: I have no information about what Dr. Robson actually does with contracts, and I'm not trying to single him out for criticism or endorsement. I am just using Dr. Robson’s publicly-known situation to illustrate my analysis of law, technology and economic incentives.