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, here, 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.

Developing the Caveats

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 press on.

The Caveats

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 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…”

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.

Going Forward

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.

EU Article 13 is not Compatible with 3D Printing Services

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