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.