May 1 marked (what is probably) the final written phase of the Copyright Office’s 1201 proceeding, a proceeding which includes the petition to allow users to “unlock” their 3D printer in order to print in materials not approved by the printer manufacture.  The original petition is available here, and the original comment in support from while I was at Public Knowledge is available here. After responses in opposition from the 3D printer company Stratasys and the trade group the Intellectual Property Owners Association, the final written round was an opportunity for supporters of the exemption to respond to the opposition. My response is here, and Public Knowledge’s response (written by Sherwin and Raza) is here.

PK’s response is better than mine, challenging some of the procedural and legal assertions made by opponents and highlighting why people advocating for the exemption should not have the burden of explaining every possible way someone might want to circumvent any possible technical protection measure.  This is important because such a requirement would essentially mean that only people with access to fairly sophisticated engineering resources could apply for an exemption.  PK argues (correctly, of course) that the proper reading of the requirement is that proponents of an exemption simply describe a category of works.  This significantly lowers the burden for average people who might want to apply for an exemption without having a dual law and engineering degree.

My response was more straightforward and focused mostly on Stratasys’ opposition (in my defense, the IPO’s opposition comments were brief and pretty much every point it made was also found in the Stratasys opposition).  The theme of my response is summed up fairly well in its introduction:

In defending the practice of leveraging copyright law to limit customer choice in 3D printer material, opponents argue that limiting customer choice helps support development of new 3D printing material.  Opponents argue that limiting consumer choice helps support servicing and maintaining printers. Opponents argue that limiting consumer choice helps keep printer prices down. Opponents argue that limiting consumer choice helps with print precision.  Opponents argue that limiting consumer choice helps to monitor the status of prints and of printing materials.  Opponents argue that limiting consumer choice helps avoid fire hazards and leads to an increase in positive health outcomes.

I find many of these claims suspect.  However, they do not matter. None of them have anything to do with copyright law. As such, for the purposes of this proceeding, I do not question any of these claims.

Stratasys spent over 30 pages of legal argument explaining how preventing consumer choice in 3D printing materials might make Stratasys’ machines work worse and undermine Stratasys’ ability to use profits from materials sales to support innovation in machines and materials.  3D printers and 3D printer materials are beyond the scope of copyright so, even if these claims are true, they are irrelevant to the Copyright Office proceeding. In fact, they pretty much highlight one of the problems created by this process in the first place: it gives manufacturers of goods that have little to nothing to do with copyright industries a pretext to try and control goods after sale.  Essentially they are trying to use the provision of the law as a way to undermine the fact that their customers actually own the printers the customers purchase.

Stratasys also commissioned a 15 page study about how preventing consumers from using other sources of 3D printing material actually helps consumers.  I didn’t spend very much time addressing that point.  Suffice to say that there isn’t anything special about 3D printing in regard to this sort of cost recovery, so if the report is true consumers really should be clamoring for the elimination of all sorts of third party vendors in all sorts of industries.

Now that the written comment rounds are over, we move onto the hearing phase later on this month.  If you are in LA or DC you can come and see them in person.

Finally, I’d like to say a huge thank you to everyone who weighed in both through the right to repair site and as individuals through the Copyright Office site.  This kind of mass public participation is critical to proving to the Copyright Office that this is more than some theoretical problem conjured up by some pesky advocates.

Last week Shapeways announced a partnership with the personal drone company DJI (maker of the Phantom line of drones).  The first part of the partnership is a curated shop of DJI-approved accessories for Phantom drones.  This partnership is exciting on its face (drones + 3D printing is always a fun combination), and it is also interesting as a potentially new kind of model for how existing brands can embrace 3D printing.

Thus far there have essentially been two major ways for companies to embrace 3D printing  (not including “we used 3D printing to make this complex thing”-type announcements, which are also cool but a somewhat different animal).  The first, and earliest, was essentially the “here are some files” model.  This was the model used by Nokia/Microsoft when they released design files that allowed people to create their own shells for the Lumia 820 phone.  It was similarly used when the synth company Teenage Engineering released design files so customers could print out their own replacement sliders and knobs for the OP-1 synthesizer.  This first model essentially releases some internal files into the wild and invites people to use (and potentially modify) them as they see fit.  Generally speaking the functional parts represented by the files aren’t protected by copyright and the release is more about getting “good” files for fans to work with into the wild than any sort of IP license.

The second way is still best exemplified by the Shapeways/Hasbro brony deal.  When confronted with a vibrant and passionate community of My Little Pony superfans making their own 3D printable fan art, Hasbro did not respond with lawsuits shutting everything down.  Instead, Hasbro decided to embrace the community and, through a partnership with Shapeways, give some of those fan artists a way to license their creations and sell them without fear of an infringement lawsuit.  Unlike the first model, Hasbro didn’t provide any digital files.  Instead, they simply decided to embrace a passionate fan community and give it a license instead of burying it with copyright infringement lawsuits.

The DJI deal may begin to exemplify a third approach.  DJI did not release 3D files to its users.  Similarly, because they are by and large functional objects outside the scope of copyright, DJI doesn’t necessarily have a powerful copyright threat to use against fan-created Phantom accessories (not that a copyright threat always needs a clear basis in law to intimidate a community…).  Instead, in this instance we have a community that is largely not of DJI’s creation and largely outside of its legal control.  

DJI could have responded to such a community in a number of different ways, from ignoring its existence to a campaign of hostility and harassment.  However, in this case DJI has decided to embrace it and (at least to a degree) endorse it.  When faced with a group of superfans spending their time testing and developing new accessories for its drones, DJI knew a good thing when they saw it and invited them in.  By legitimizing and embracing this community DJI is signaling to its customers that it wants to meet them where they are.  It also, not incidentally, gets some great (practically-free) R&D to learn what its most passionate users really want.

It is unlikely that any of these approaches is “best,” and it is unclear if all of them will be viable in the long term.  Furthermore, it is unlikely that they will remain the only approaches that existing brands use to 3D printing.  For now it is enough to note that each of them are interesting and can work, and to be encouraged that some brands are seeing 3D printing as an ally instead of an interloper.

While the IP saga of Left Shark lives on, at this point I think we have enough distance to try and determine if there are any larger lessons to be learned from this entire enterprise.  From where we stand today I think it is safe to say that there is at least one.

As I’ve said more than once, one of the biggest issues connected to IP and 3D printing will simply be the process of people figuring out that not everything coming out of a 3D printer is protected by copyright.  This is a huge shift from the past 15+ years, where the thing that most non-lawyers thought they needed to know about IP was “everything on your computer screen is protected by copyright.”  The idea that just because someone (or some brand) is associated with an object doesn’t always give them the right to control that object flies in the face of that “folk copyright” and will take years to explain to people.

Sometimes neither side in a dispute will fully understand this concept.  Other times one side will and the other won’t, and hijinks will ensue.  But it may be that the real legacy of Left Shark will be to illustrate what happens when large purported rightsholders try and bluff their way through a conflict.

Although there are plenty of reasons to be annoyed at Katy Perry because of her attempts to control Left Shark, the one that seemed to annoy the most people was that she was trying to assert rights she simply did not have.  Given the content (and missing content) of the letter, it seems at least likely that her lawyers understood that they did not actually have the right to demand the takedown of Left Shark but sent a scary letter anyway.

That gives rise to the lesson of Left Shark - however mad people get when a rightsholder pulls something beloved down from the internet, they get even angrier when someone pretending to be a rightsholder pulls something beloved down from the internet.  In other words, there are real costs to overplaying your hand and trying to control objects, files, and ideas outside of your legal control.  There are people willing to push back.

It is way too early in the history of widespread access to 3D printing to know if this type of reaction is a one-off or the beginning of a trend.  And I don’t know if we will be richer or poorer as a people if “to left shark” evolves into a verb for overplaying your IP hand in the world of 3D printing.  So for now all that needs to be said is that there is a lesson to be learned here and that I hope that rightsholders are paying attention.

This post originally appeared on the Make: blog on April 30, 2015.

The Copyright Office needs to hear that people want to be able to use whatever materials they choose in their 3D printers. Click here to add your voice.

Want to know more?

For the past few months, the Copyright Office has been holding a process designed to decide if people can do all sorts of legitimate things like unlock cell phones, make fair uses of videos on DVD, and repair their cars and tractors without violating part of copyright law in the Digital Millennium Copyright Act (DMCA). Objections to doing those things were released earlier this month, and replies to those objections are due May 1.

One request that is part of this process is a request to prevent copyright law from getting in the way of people using the materials of their choice in their 3D printers. The request is necessary because some 3D printer manufacturers use control technologies like verification chips and RFID tags to make sure that their printers can only work with materials that the manufacturers themselves sell. If you try and use “unapproved materials” in these printers — even if you own them — you could be sued for violating the DMCA.

The biggest objection to this request came from the 3D printing company Stratasys. Among other things, Stratasys dismisses the idea that anyone actually wants to use unapproved materials in their 3D printers, or that legal uncertainty would reduce the chances of someone feeling comfortable doing so:

“The only alleged evidence of any person experiencing uncertainty [around using unapproved materials in a 3D printer] consists of a single quote from a comment on a web forum … [a]t a minimum, this comment is merely conclusory or anecdotal evidence that is insufficient to meet the substantial adverse impact standard required by the statute.”

The coalition fighting for a right to access and repair digital objects needs your help to show that there is more than a single person on a web forum interested in using materials in 3D printers without permission. We need you to tell the Copyright Office that copyright law should not stand in the way of using whatever material you choose in a 3D printer.

Please click here to weigh in, and please spread the word!

The Radio Free Culture podcast at the Free Music Archive (which is at the Bergmayer-approved WFMU) let me come on to talk about 3D printing and IP this week.  They also gave me some soap.