Today was the last public step in the 3D printing unlocking proceeding (some background here). Essentially, this is about allowing people who own 3D printers to use whatever their material they want in their printer. Since some manufacturers use chip-and-software-based verification to lock printers to material coming from them, the entire process was happening as part of the triennial “1201 process,” so named for 17 USC 1201 that authorizes it.
That last step was a public hearing. On side pro-unlock was Sherwin Siy from Public Knowledge and me from, well, me. I started this process while I was at PK but now that I am at Shapeways was participating in my personal capacity. On side anti-unlock was a representative from Stratasys. Stratasys is a large commercial 3D printer manufacturer. They also own a desktop 3D printing company called Makerbot that you may have heard of.
Rebecca Tushnet already has her always fantastic liveblog/transcript of the proceeding up so I’ll just link to it here. Some quick thoughts:
- There were a lot of questions about the copyright-protected work in question and about how the DRM mechanism would actually operate. Since the petition was (intentionally) written at a fairly high level of abstraction in order to cover all printers, this became a bit complicated.
- The Copyright Office seemed interested in exploring distinctions between a consumer/prosumer market and a commercial/industrial market. This makes a bit of sense since the original petition skewed towards the consumer market. However, it is hard to articulate a reason why it would be reasonable to grant this exemption for the consumer market and not the industrial market.
- There was also some discussion about why the underlying copying in question was not an infringement. This was a bit complicated because I don’t actually believe that there is infringement going on. However, I do worry that the absence of infringement would not prevent a printer manufacturer from bringing a lawsuit or threatening a lawsuit. Fortunately, Sherwin was able to talk about both 17 USC 117 and fair use.
- There were questions about ownership vs. licensing of the software in the machines. The Copyright Office asked for specific examples of how specific printer manufacturer handle this issue. I didn’t have specific examples. It probably would have been better if I had researched the licensing terms of a handful of printers before the hearing.
- Stratasys/Makerbot essentially restated the concerns that they raised in their opposition filing. These concerns boil down to things like people making counterfeit objects with sub-standard third party material and users hating Stratasys when third party material makes ugly prints with a Stratasys machine. The Copyright Office was encouragingly skeptical of this justification for 1201 liability. As I wrote in my obnoxious reply comments, I share most of those concerns. It is just that 1201 is not the law that we have to prevent counterfeit 3D printed parts from going into airplanes. That’s why we have product liability law. And contracts. And trademark.
- In defending their interest in using DRM to exclude third party filament, Stratasys made it pretty clear (to me at least) that they have been seriously considering adding verification chips to Makerbots.
- Stratasys was rolling deep. In addition to the person they had testifying, they had at least 4 lawyers sitting in the back. Those lawyers seemed perfectly nice, but their presence pretty much put to bed any ideas I had that a 3D printer company would never bring a 1201 action against someone who decided to use an unapproved material.
What happens now? Assuming the Copyright Office doesn’t have any followup questions, once the hearings are done tomorrow they start deciding how to handle all 27 exemption proposals. They come up with recommendations (at least in theory in consultation with NTIA - it was encouraging to see a representative from NTIA asking questions today) and give them to the Librarian of Congress. He then considers the recommendations and decides how to handle each request. When will that happen? Who knows? Maybe this fall?
Will this exemption be granted? I have no idea. The Copyright Office felt less hostile to the idea than usual and asked good questions probing how the Stratasys concerns connected to copyright. But they also seemed concerned that Sherwin and I didn’t have a detailed technical analysis of every possible DRM mechanism that could be used in a 3D printer. So we’ll see.
Oh, and if you want to watch a video of the hearing you are out of luck. The Copyright Office doesn’t know how to record things on video. At some point they will release a transcript. Until then Professor Tushnet’s blog is the closest you are going to get (and it is pretty damn close).