Chapter 6 discusses building encroachment, which is a topic closely related to adverse possession—at least in the common law. Chapter 6 documents the three different doctrinal approaches to dealing with encroachment over boundary and focuses on the building encroachment doctrine enacted in 52 jurisdictions. The prompt protest rule and encroachers’ not acting in bad faith are easy to justify economically (though not universally adopted). Encroachers’ good faith is increasingly unlikely given the advance of mapping technology. A two-tier building encroachment doctrine (with safe harbor and sure shipwreck) is best. Even though this doctrine has been used as an example of a put option, it is not, and will be inefficient if treated as such.

Chapter 5 turns to patent infringement. It introduces a fundamental tension between patent holders and good faith users of the technology. 3D printing will expose unsuspecting individuals and 3D print shops to patent infringement liability when they print patented objects. To spare unintentionally infringing individuals and 3D print shops the ruinous costs of litigation, I explore options for exemptions and safe harbors. At the same time, if 3D printing enables massive, individualized manufacturing, and if the law exempts each individual act of infringement, patent rights would be eviscerated. Squaring this circle will not be easy, but the chapter explores ways to alleviate the tension, particularly by strengthening indirect infringement claims and limiting exemptions to cases where the accused infringer had no knowledge of the patent. In addition, Chapter 5 demonstrates that 3D printable files will not infringe traditional patent claims directed to tangible objects. Moreover, the most commonly traded 3D printable file format will not infringe a computer-readable medium (Beauregard) claim. Attempting to alleviate some of the protection gaps for patent holders while balancing the needs of users, the chapter considers a novel theory of “digital patent infringement.”

Chapter 9 considers the role of design rights for DMFs. In it, I argue that DMFs should only receive design protection if the object they will print would receive such protection. Current practice in many jurisdictions is to the contrary. They protect any qualifying images if they appear on a computer screen. I argue that this approach impermissibly protects mere artistic images, which should be protected, if at all, by copyright law. I offer a framework for a teleological approach to design right in digital images and focus the approach on DMFs specifically. In addition, I describe how the EU Design Directive includes many important safeguards for free speech, experimentation, and private use. I recommend that the United States include similar protections in its design patent laws.

Technology companies are the sheriffs of what used to be the wild west of the internet. In the 1990s, when the internet was young, the imagery of the western frontier really seemed like a good analogy. The internet seemed to radically decentralize power: no longer could massive publishers or broadcasters control the media; anyone could be a publisher and get their message out.1 The internet seemed inherently designed to preserve the freedom of individuals. It seemed impossible to enforce laws against the apparently anonymous masses of internet users distributed around the world. The commercial internet grew out of a military design that avoided single points of failure and was resilient against both nuclear attack and interference by hostile governments.2

To an extent that nobody else has managed, the copyright industries have been able to bake protection for their rights into the very infrastructure of the internet. The challenge of limiting illicit file sharing is similar to many of the other difficult issues – like addressing offensive content, removing defamatory posts, or limiting the flow of misinformation – in internet regulation. How do you control what users do online without directly going after individual users? Legal actions against individuals are expensive; they only really make sense in high value cases. Changing the behavior of many individuals on a large scale is much more difficult, whether it’s users sharing copyrighted music and films or people using the internet to harass others. Any effective answer has to involve technology companies and internet intermediaries in some way, because they have the power to influence large numbers of users through their design choices and policies.

In August 2017, several hundred white nationalists marched on the small university town of Charlottesville, Virginia. The rally turned tragic when one of the protesters rammed his car into a crowd of counterprotesters, killing 32-year-old Heather Heyer. The Washington Post characterized the protesters as “a meticulously organized, well-coordinated and heavily armed company of white nationalists.”1