I originally wrote this post on April 14, immediately after the hearing it describes. At the time I assumed that the video of the proceeding would be released soon, so I held it in drafts until I could add the relevant videos. As it is now early July, I decided to post what I have as is. I’ll add the videos if/when the Copyright Office ever posts them.
On April 13 the US Copyright Office held a hearing on my petition for a rule to make it clear that unlocking 3D printers does not violate copyright law. Specifically, the request is for a rule to make it clear that using consumables (filament, powder, whatever) that do not come from the company that made the printer does not violate copyright law. Background on this process starts here. You can watch the entire video of the proceeding here (nb - see note above - I’ll add this link when it exists). I’ll pull out some clips and explain what happened in the rest of this post.
How We Got Here
As always, it is worth noting that it is strange to even imagine that copyright law would have anything to say about what kind of stuff you put in a 3D printer. In fact, I don’t believe that it does. However, there is enough ambiguity around the question that I think it is worth asking for clarification from the Copyright Office on the issue. The connection with copyright law is this: the same law that makes it illegal to break digital locks on DVDs so you can rip them might also make it illegal to trick a 3D printer into using material that did not come from the company that manufactured it. (These locks are often referred to as “DRM” - Digital Rights Management - or “TPM” - technical protection measures.)
In 2015 the Copyright Office issued a rule that exempted tricking 3D printers into using third party materials from that law. However, the Copyright Office’s rule was narrow. It did not apply if the printer was making things that are used in commerce and whose physical production is subject to legal or regulatory oversight. Those qualifications are pretty broad. This hearing was reducing or eliminating them.
I have argued that the carve out swallowed the rule because all physical production is subject to some sort of legal or regulatory oversight. The 3D printing company Stratasys argued that the carve out was important because it helped protect the safety of manufactured physical parts. My response to that argument is that the safety of manufactured physical parts is entirely unrelated to copyright law.
Prior to the hearing, the entire debate had taken place in the form of written petitions and comments to the Copyright Office. In my comments I had largely argued my position on policy grounds: the carve out language was unreasonably broad and appeared to address a concern that 1) was not supported in the record, and 2) better addressed by the expert regulatory agencies such as the FAA and FDA. Essentially I was arguing that the carve out imposed costs in the form of ambiguity without any corresponding (copyright-related) benefits.
The Less Good Parts of the Hearing
At the start of the hearing, the Copyright Office immediately called me out for not providing specific examples of individuals harmed by what I feel is a problematic carve out:
(I’ll add a video montage here of me being called out by the Copyright Office as soon as it exists)
They repeatedly asked for specific instances of non-theoretical harm. I had not provided any in the record and was not prepared to provide any during the hearing. In part this was because I felt at the time that it was unreasonably burdensome to require an individual to provide that level of evidentiary support as part of a request.
Nonetheless, I am sympathetic with the idea that the Copyright Office may feel that they need evidence of specific, non-theoretical harm in order to grant an exception to a law. By the end of the hearing it appeared that if the Copyright Office felt that they needed specific examples of harm they would request it from me. At that point I will ask the community to help me identify those examples. (note 7/5/18 - the Copyright Office has sent out post-hearing follow up questions to some participants. They did not send any to me or Stratasys. Only time will tell what that means.)
The Better Parts of the Hearing
Fortunately, that was not the extent of the hearing. The Copyright Office took time to try and understand why the supply chain integrity arguments made by Stratasys were relevant to a copyright rulemaking. There were two specific lines of questioning that struck me as encouraging.
First, there was a discussion focusing on the harms that would occur if the digital locks (the TPMs) were broken on the 3D printer software. As it had in its written comments, Stratasys focused on the impact that broken TPMs would have on the physical integrity of printed parts. When the Copyright Office asked Stratasys about the impact that broken TPMs would have on infringement of the software itself, Stratasys stated that it had never really considered that question.
(I’ll add a video here when it exists)
Since the entire purpose of the copyright law against breaking TPMs is to prevent infringement of the work protected by the TPM, this was a telling admission from Stratasys. To me it highlighted how unrelated Stratasys’ concerns were to copyright law. Hopefully the Copyright Office sees it that way.
Second, there was a discussion around testing of parts. Stratasys provided examples of parts that had failed various quality checks (the nice thing about 3D printing hearings is that there are always physical things to pass around). Stratasys explained how important it was to do testing of physical parts and how third party materials might result in parts that failed to meet the quality standards.
At that point the Copyright Office asked if the same quality testing needed to be done on parts printed with Stratasys material and third party material. Stratasys answered that it did.
(I’ll add a video here when it exists)
I also found this to be an encouraging answer. If Stratasys had stated that its materials allowed manufacturers to skip the quality testing, then it might be able to argue that third party materials could introduce undetected defects into the supply chain. However, if every part needs to be tested no matter where the input material comes from, it is unlikely that third party material will introduce hidden defects into the supply chain.
It is, of course, worth noting again that supply chain integrity has nothing to do with copyright law. Nonetheless, it is still helpful when an opposing argument falls apart, even if that argument is not particularly relevant.
Now, we wait. At some point the Copyright Office will make a recommendation to the Librarian of Congress. The Librarian will then issue a final decision. I’ll add a new post when that happens.