Update: If you think unlocking 3D printers (or other types of things like video game consoles, airplane black boxes) is important, please consider donating to organizations like Public Knowledge. They do the real, often behind the scenes heavy legal lifting that makes it possible to push the Copyright Office to make these types of things possible.

Today I filed the latest petition in the US Copyright Office’s review of the rules that govern unlocking 3D printing (this is part of a larger review that happens every three years concerning breaking DRM on all sorts of things).  After reading the record that informed the creation of the rules in 2015, I now believe that the evidence put forward to justify part of the rule does not actually exist.

For those of you playing along at home, at the end of October the Copyright Office renewed the existing rule that allowed people to unlock their 3D printers and use whatever consumables they want with them.  However, that rule is burdened by a significant exception that threatens to eat the rule. Today’s filing is a request that the Copyright Office drop the exception.

A charitable reading of the exception suggests that it was motivated by a fear that people might unlock their 3D printer, use third party (and sub-standard) material in their printer, create something highly regulated like an airplane part or medical implant, and then have that part fail because no one realized that it failed to meet the standards.  Unfortunately, the language that the Copyright Office chose to address this concern was so broad as to basically include every 3D printer. 

Specifically, it said it did not apply to a printer that “produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight.”  Needless to say, this is pretty broad.

My petition today asks the Copyright Office to drop this qualifying language for two main reasons.  First, the language itself is ridiculously broad and ends up blocking many users and uses that are unrelated to the underlying concern.

Second, and more importantly, there is not any actual evidence that the concern is real. My petition (and it is only about 7 pages long) outlines the history of the concern that unlocking 3d printing could create faulty medical devices or make airplanes fall out of the sky.  These concerns were originally raised by Stratasys and then further discussed by the Copyright Office.  However, they do not appear to have been actually documented anywhere.

In the recommendation to include the qualifying language, the Copyright Office pointed to a letter from the FDA that is represented as raising concerns about unlocked 3D printers creating harmful medical devices.  Unfortunately, if you actually read the letter (which is only 5 pages) it does not raise any of those concerns. 

As a result, the Copyright Office has severely restricted the usefulness of its exemption in order to address a concern that, as far as the record is concerned, does not exist. 

As a final point, even if unlocking 3D printers did create problems with medical devices, or airline safety, or anything else, the Copyright Office is poorly positioned to address those concerns.  Neither the proponents nor opponents of a Copyright Office rule are well positioned to argue the merits of medical device safety regulation.  Even if they were, the Copyright Office is poorly positioned to weigh their respective arguments.

Ultimately my petition asks the Copyright Office to focus on the copyright aspects of this decision.  To the extent that there is no copyright-related reason to limit the scope of the exemption, the exemption should not be limited.  If there are non-copyright-related impacts of the decision, the Copyright Office should let the other parts of the Government worry about those.

If you are convinced by this argument, you can submit comments in favor of my petition here by March 14, 2018.  If you think my argument is dumb, you can submit a comment to that effect in the same place on the same timeline.

Good news from the US Copyright Office.  Three years ago I petitioned the US Copyright Office asking it to confirm that using unapproved print material in a 3D printer did not violate US copyright law.  The Copyright Office granted the petition (with some important caveats).  However, the process driving the entire enterprise requires that petitions be renewed every three years.  Earlier this year I petitioned for a renewal, and last week that renewal was granted.  

That isn’t quite the end of it, but before I explain next steps I want to pause for a second and mention how the Copyright Office went about the process this time around.

This process is usually known as the Section 1201 Exemption Proceedings (or something similar) because they are technically requests under 17 USC 1201 for exemptions to the law that prohibits circumventing technical measures designed to prevent unauthorized reproductions of copyright-protected works. In english, participants are asking the Copyright Office to state that breaking DRM for a specific purpose does not violate the law that makes it illegal to break DRM.  The law creates a process for people to make these requests, and requires the Copyright Office to revisit the issue every three years.

This allows for new issues to be introduced to the process and old issues to drift out of memory.  It also creates something of a burden for exemption requests that are still relevant.  Three years ago professors who want to show short clips of movies in their classes needed to break DVD DRM in order to pull those clips from the larger works.  Those professors still need that capability today and therefore need to re-petition every three years.

Historically, the US Copyright Office has placed the burden on the petitioners to re-prove that the exemption is still necessary.  Since in most cases the people requesting these exemptions are represented by law school clinics or public interest organizations (Public Knowledge participates in this process every time around), this created a significant burden with no real corresponding value.  After all, the petitions were granted three years ago - if nothing has changed they should probably be renewed.

This time around the Copyright Office decided to change the process. For the first time, if an exemption already existed the burden was on the opponents to the exemption to prove why it was no longer relevant. The process for asking for a renewal was essentially a three sentence application, forcing opponents to decide if they wanted to take the time to fight the renewal.

The notice that came out last week showed the dramatic impact that this seemingly small change made.  Most renewal requests (including the 3D printing-related one) were unopposed and the Copyright Office simply renewed them.

This is not, however, the end of the process. Requests for new exemptions, as well as requests for expansions of existing exemptions, will battle it out in the old way.  There are 12 of these requests, including mine related to 3D printing.

What is my request?  As I noted at the top, the current exemption has some ridiculously broad qualifying language 

“The exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight…”

Briefly, this language is problematic because 1) it arguably covers almost all 3D printers because almost every object is subject to some sort of legal or regulatory oversight, and 2) it uses copyright law to enforce every area of law that is not related to copyright.  

Therefore, I am asking the Copyright Office to remove the qualifying language.  In a nutshell, I think the Copyright Office should stick to questions of copyright law.  If using a 3D printer with third party materials violates FDA regulations, let the FDA worry about that.

Comments in support of my petition are due December 18, 2017.  Responses from opponents are due February 12, 2018 (coincidentally my sister’s birthday).  Reply comments to the opposition comments are due March 14, 2018.  After that the Copyright Office will hold hearings the week of April 9, 2018 in Washington, DC and also hearings in California at a date TBA.  At some point after that the Copyright Office will make a decision.

What can you do to help?  Submitting a comment in support of the petition by March 14, 2018 would be great!  I’ll try and put together some example language before then, but the key will be asking the Copyright Office not to regulate beyond the world of copyright.

One of the issues that continues to vex the open source hardware community is licensing.  The reason for this is simple: licensing in open source hardware is hard.  From an IP standpoint, open source software is basically a single blob of stuff comprehensively covered by a single copyright.  That means you can pick a single copyright license and be done.

Open source hardware isn’t that easy. It is actually a mix of a bunch of different elements covered by a bunch of different types of IP.  That means that you are probably going to need to pick a few types of licenses for a few different parts of your hardware.  OSHWA is working on building a tool to make this easier to figure out, but in the meantime I wanted to throw up a quick post setting up a bit of a framework.  This framework is largely based on the work that Ryan Lawson and Adam Alperowicz did as students at the NYU Technology Law and Policy Clinic, although all errors are entirely mine.

When you are thinking about licensing your hardware, there are at least four parts that might be involved. That doesn’t mean that every piece of hardware has all four, but at a minimum you should take the time to cross it off the list if it is appropriate.

Hardware.  These are the physical elements of your hardware.  This might be protected by a combination of nothing, copyright, and patent.  If it is nothing, you don’t need to worry about a license. If it is copyright, you should be looking at Creative Commons licenses (note that licenses with Non-Commercial restrictions are not compatible with the open source hardware definition).  If it is patent, things get a bit more complicated.  The good news is that you don’t just back into a patent. If you hardware is protected by a patent it is because you paid a lot of money to acquire that patent.  Talk to the lawyer who got you your patent about licensing options.  Not sure what to do?  If the CC disclaim and request option existed that would be best.  Until then, unless your hardware includes a lot of artistic or decorative elements you can probably skip this.

Documentation.  This is covered by copyright.  It is a required part of the open source hardware definition. Pick a Creative Commons license and apply it to the documentation.  That will let other people make copies of your documentation.

Software.  This is also covered by copyright.  There are many copyright licenses written precisely for software.  Pick an OSI-compliant license and apply it to your software.

Branding.  The name of your hardware can be protected by trademark. If you have a trademark you probably do not want to causally license it, because your trademark tells people “this version of X comes from me.”  Fortunately not licensing your trademark is totally allowed under the open source hardware definition. In fact, not offering blanket licenses on your trademark is part of what makes open source hardware work because it allows other people to build on your hardware without suggesting that you are responsible for whatever they put out in the world.

And that’s it.  Quick and dirty.  Wherever you are posting your licensing and documentation, it might make sense to break out the various licenses.  You know, something like this:

Documentation: Creative Commons Attribution 4.0

Software: MIT

(note the absence of a hardware license because this imaginary piece of hardware does not have any protectable elements in the physical hardware. I also didn’t license the imaginary trademark that is connected to the imaginary hardware.)

Thoughts, questions, or corrections?  Hit me up. Want more?  Keep an eye on OSHWA, where we are working to build out a much less dirty (but if appropriate to the use just as quick) version in the coming months. 

*This title is not a lie. This guide is quick and it is dirty. That means that it doesn’t contemplate every possible situation, so there are plenty of right ways to do open source hardware licensing that are not listed.  That also means that it is full of gross generalizations that may not apply to you.  That also also means that it is not intended to substitute for legal advice.  If you are thinking seriously about this issue for your own hardware, it may be worth talking to a lawyer who is your lawyer about how licensing impacts your hardware.

Four and a half years ago, in the wake of HBO’s decision to send a DMCA notice removing a 3D printed Game of Thrones iPhone dock from the internet, I wrote a short blog post titled HBO, Give People a Way to Buy Your 3D Printed Stuff for the Public Knowledge blog.  Today I get to write a post celebrating the fact that Valve has decided to do just that.

The first post raised a point that was not novel at the time, and has not grown any more novel since: instead of taking down fan art, rightsholders may be better served by allowing fans to spread their enthusiasm by selling their work.  Furthermore, to the extent that fan art requires a license to produce, rightsholders could be well served by granting that license in exchange for part of the proceeds from that sale and information about what types of things are popular in the community.

While the larger point was not novel, 3D printing did bring a slightly different context to its discussion.   Unlike other types of digital-only fan art that can be reproduced for free, 3D printing involves a physical thing that costs money to produce.  That means that 3D printed fan art will involve payment much more often than other types of online fan art.  As a result, rightsholders do not have to introduce monetization into an ecosystem – it is there from the beginning.  That, in turn, makes it much less disruptive to introduce the concept of royalty payments to the community.  (For what it’s worth, a similar “I expect to pay for physical goods” mindset helps guide the development of the open source hardware community and its divergence from traditional open source hardware.)

In my Shapeways welcome post, I mentioned that one of the reasons I was excited to join was Shapeways’ unique position to bring together fans, rightsholders, and 3D printing.  One of the first things I did when I started was to reach out to Heidi Tandy (who is many things, but in this context was part of the team supporting the Organization for Transformative Works).  I asked her for thoughts on creating a program that allowed fans to create new works without exposure to threats of copyright infringement while at the same time avoiding forcing licenses on new works that did not require licenses in the first place.  As would come as no surprise to anyone who has met her, Heidi was incredibly willing to take the time to walk me through my ideas and anxieties, as well as share her insights.

I hope that the structure of the Valve deal helps facilitate licensing between fans and rightsholders when that licensing is necessary, without also creating new norms requiring licenses when none are necessary.  The former is advanced by a prominent notice that the license is available with (what I hope are) human-readable terms. The latter is advanced by making it clear that creators have the right to opt out of the license, and making it easy to do so.  

Valve deserves a great deal of credit for their willingness to support both of these goals, and for their willingness to explore this more generally.  It would have been easy for Valve to refuse to explore this opportunity at all, to make the license terms complicated or secret, or to insist that it be hard or impossible to opt out of the license. They did none of these things, for which they should be commended.

This program is a big step towards finding out what it really means to allow fans to create original physical items under a formal license, instead of shutting it down or benignly neglecting it under opaque conditions.  I’m hoping that there are many more.

In August I filed a petition with the US Copyright Office asking to renew the current rule that allows owners of 3D printers to use whatever filament or material they want in their printers.  This petition, which is part of the Copyright Office’s triennial 1201 rulemaking process, was aimed at renewing the exemption granted three years ago.  Today I filed a new petition asking the Copyright Office to go further and expand its existing petition so it makes sense.

The renewal petition was important because it is probably better to have the exemption than to not have it.  However, as I wrote at the time, the current exemption is a total mess.  Specifically, while it grants printer users the right to use their own material in their printers, it limits that right in cases where the printer in question “produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful.”

Briefly, this is nonsensical because 1) many printers produce goods for personal use and for “use in commerce” (however we’re going to define that) so making a legal distinction between the two can be extremely challenging, and 2) every item used in commerce is subject to legal or regulatory oversight, so what does that additional qualifier even mean?  For the record, while we disagreed about the wisdom of granting the exemption at all, Stratasys and I agreed that adding this type of qualifier was a bad idea because it made no sense.

That’s where today’s petition comes in.  It asks the Copyright Office to grant a new exemption that is identical to the current one except without the nonsensical limitation.  Why ask for a renewal for the current exemption and then ask for a new exemption that is just an expansion of the current petition?  Because that’s how the Copyright Office told people to do it.  And it does make sense on some level.  If they reject this request to expand the exemption, at least we all have the renewal to fall back on.

What happens now?  Today (and by “today” I mean that it could be filed today and published in the reasonably near future) we get to find out if anyone is opposing the vanilla renewal petition. If no one opposes it, it should be reasonably easy to have it renewed. (Update 9/29/17: It appears that no one opposed the original petition.  In theory that means it will be automatically renewed.  We’ll see how this plays out once the Copyright Office releases information about next steps.)  

Regardless, at some point the Copyright Office will bundle all of the requests together and ask to public to comment on them.  The Notice asking for petitions didn’t include a timeline for that, so we’ll just have to wait and see. When you start seeing stories about efforts to ask you to weigh in on using videos in classrooms and jailbreaking phones, you might pause for a moment to consider the fate of 3D printers as well.