Just a note that this
is an immediate reaction to news that broke this morning, and my interpretation
may evolve over time. If it does I’ll
provide a link here.
Today the Library of Congress released its rules for unlocking 3D printers in order to allow operators to use 3D printing materials that are not
approved by the printer manufacturers. The decision is, to put it mildly, a
mess. It is as if, at the end of the long
marathon that was the rulemaking process, the Librarian of Congress decided to
slap on iceskates for the last 100 yards.
The predictable result was that it fell, broke both legs, and vomited
all over itself. Did it manage to fall
across the finish line on the way down? That’s
hard to say.
The Original Argument
Deep background on this proceeding can be found here,
and here. The short version is that this proceeding was intended to get official blessing for an activity that shouldn’t be illegal anyway:
using whatever material you want in your 3D printer without violating copyright
law. (It is reasonable for you to pause now to ask the question: what does copyright law have to do with the material I use in my 3D printer?)The Librarian of Congress ended up
granting this blessing, but in a way that highlights the problem with how the
Librarian of Congress and the Copyright Office see themselves and this
proceeding. Oh, and they included
caveats to the blessing that call the entire thing into question.
To review, the original petition consisted of two main arguments. First, that circumventing
digital locks that prevent people from using their own material in their 3D
printer does not violate copyright law.
Second, even though doing so does not violate copyright law, the
Librarian of Congress and the Copyright Office should formally grant an
exemption allowing people to do so, in order to be totally clear that people
are free to use their own material in their own 3D printers (for various
reasons that I won’t get into here there was a cloud of legal uncertainty
around this point).
Not surprisingly, the objections to this proposal from the
3D printer manufacturer Stratasys (who also owns Makerbot) had nothing
to do with copyright law. Instead,
they were focused exclusively on a parade of horribles where airplanes fall out
of the sky and medical implants kill people because counterfeit material was
used in a 3D printer to manufacture a critical part. Needless to say, these are not the types of harm that copyright law was originally intended to address.
The Decision Today
Today’s decision does a few things right. First, the Librarian of Congress and
Copyright Office state that circumventing a digital lock in order
to use your own material in a 3D printer is “likely noninfringing as a matter
of fair use or under section 117.” The
Librarian of Congress and Copyright Office do not have the power to determine
what is and is not fair use or to formally bless something as violating or not violating copyright law. However, it
is nice to see them stand behind the idea that the activity covered does not
violate copyright law.
Additionally, the Librarian of Congress and Copyright Office
actually grant the exception. That is
great news. As a high level matter, both
the Librarian and the Copyright Office are endorsing the idea that using your
own material in a 3D printer does not violate copyright law.
But then they add some caveats to the exemption. And the
caveats get weird.
During the hearing and in follow up questions, the Copyright
Office struggled with the parade of horribles from Stratasys (although the
rules ultimately come from the Librarian of Congress, the Copyright Office
holds the hearings on the exemptions). This
struggle was hard for the Copyright Office because, well, they are the
Copyright Office. They have no expertise
about medical device safety or keeping airplanes from falling out of the sky.
One way to address this lack of expertise would be to
recognize that part of the reason that the Copyright Office knows nothing about
medical and airline safety is because those are not copyright issues. Instead of trying to deal with those issues through
copyright law, the Copyright Office could rely on the federal agencies tasked
with regulating those areas to find a way to protect the public that is
completely independent of copyright law.
Such regulation is, in fact, possible.
Instead, the Copyright Office devoted part of the
hearing to exploring these issues. This
part of the hearing was essentially a waste of time because both the people
asking the questions (the Copyright Office) and the people answering the
questions (myself included) know nothing about the regulatory systems in place
to protect public safety in relation to manufactured objects.
After the hearing, the Copyright Office tried to address these concerns again by proposing a distinction between “commercial” printers and “personal” printers in
follow up questions. Both proponents and
opponents of the exemption essentially
rejected this distinction as nonsensical and tried to steer the Copyright
Office away from it.
Undaunted, the Copyright Office appears to have decided to
The general exemption is limited by caveats designed, in the
words of the ruling “to address regulatory and safety issues.” I want to pause here to emphasize again that
there is no reason to think that the Librarian of Congress or Copyright Office
has any special expertise on issues of regulatory or safety issues, and that it
is a stark reminder of how copyright has spread to every aspect of our lives
that they would even consider these far flung issues in a copyright proceeding.
That aside, the exemption grant is limited by the following
“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…”
It is here where the Librarian of Congress and Copyright
Office fall of their ice skates, break both legs, and vomit all over themselves.
What Does This Mean?
This caveat is a disaster for at least two reasons. First, “goods or materials … subject to
legal or regulatory oversight” is pretty close to being the equivalent of “everything.” At a minimum, tort laws such as product
liability oversee just about every object out in the world, and tort laws are
certainly a type of legal oversight. In
addition, there are an almost uncountable number of object-specific regulatory
regimes that could oversee any given object.
The “use in commerce” element arguably narrows the scope of that a bit,
but “use in commerce” can also be interpreted fairly broadly. Very little additional information is given in today’s rule to help interpret these terms.
This is exacerbated by the second reason. As constructed, the exemption applies to the
printer, not the use. By stating that “the
exemption shall not extend to any
computer program on a 3D printer that produces goods…” it focuses on the
possible use of the printer, not the possible specific use. Read strictly, even if you wanted to only
produce that magical good that was not intended to be used in commerce and was
not subject to legal or regulatory oversight, you couldn’t unless you had a
printer that could only produce those goods.
As soon as you had a printer capable of printing objects that could be
used in commerce and subject to legal oversight – that’s every printer – you fall
outside of the scope of the exemption. (edit: I originally included an extra “to” before “extend” in the quote above and mistyped “on a 3D printer” as “or 3D printer.” I don’t believe that these typos change the analysis, although they do highlight how quickly I was typing this morning.)
By trying to draw a distinction that both sides of the
debate cautioned against, the Librarian of Congress and Copyright Office have
created a situation where the caveats devour the entire rule.
To recap, on the plus side the Librarian of Congress and the
Copyright Office recognized that using your own material in a 3D printer is not
copyright infringement. They also
formally granted an exemption from the rules that would make breaking the
digital lock on a 3D printer in order to use your own material illegal.
On the minus side, in an attempt to address a suite of
concerns they know little to nothing about, they undermined that exemption by
creating a carve out that includes every 3D printer I can imagine.
The real take away is that when copyright gets into areas
that no one originally intended things start to break. It is unreasonable to expect one legal
doctrine to be able to regulate all possible harms in all possible arenas. Hopefully this can serve as a strong example
as to what happens when you start to see copyright everywhere.
update: Just to be clear, this entire undertaking is only relevant if your printer does a check to verify that your filament came from an approved source before printing. If your printer doesn’t do that - and certainly many personal printers don’t - then this proceeding has no impact on you. Use whatever filament you want.