Update 3/15/18: I filed this brief reply to Stratasys’ comments in the proceeding as well. This blog post is a better reply.
I was kind of hoping that this wouldn’t happen, but has Stratasys filed an opposition to my request to make it easier to unlock 3D printers. The background is here, but the short version is that the petition is about making it clear that copyright law should not prevent people from using third party materials in their 3D printers. If you read that and thought to yourself “why would copyright law prevent someone from using third party material in their 3D printer?” you have arrived at the crux of this issue. You have also grasped something that Stratasys appears to have missed. From its opposition, Stratasys appears to believe that copyright law is well suited to industrial health and safety, preventing airplanes from falling out of the sky, and keeping out hackers.
To be clear (again, background) on its face this petition, which is in front of the US Copyright Office as part of the “1201 Triennial” process is pretty narrow. It is only about removing qualifying language from an existing rule that clarifies that using third party materials in 3D printers does not violate copyright law. The problem with the qualifying language is that it is highly ambiguous and could be read to swallow the entire rule. Since the qualifying language appears to be intended to address a concern that does not actually exist, it should be safe to remove it.
Stratasys’ Opposition
Stratasys explicitly does not oppose renewing that existing rule on unlocking 3D printers to use third party materials (the rule needs to be renewed every three years - hence the “Triennial”). However, Stratasys opposes removing the qualifying language from that rule. Unfortunately, its opposition does not really address the qualifying language (which is probably good because Stratasys effectively advised against inserting the language three years ago).
Instead Stratasys’ opposition quasi-re-litigates the original exemption, defends the concept of closed systems as a thing, and urges the Copyright Office to address selected ills of the world. The opposition never addresses one of the key points of the petition: to eliminate copyright law from any discussion about third party materials in 3D printers because copyright law does not belong there.
I’m not going to dwell on that first section of the opposition. It is strange to me that Stratasys spends time trying to re-litigate the terms of an exemption that it does not oppose, but Stratasys does not appose the renewed exemption so that’s Stratasys’ problem. Stratasys also raises a number of procedural arguments that every opponent of every exemption always raises. While I appreciate the liberal use of italics to show which party properly carriers which burdens in those sections, it isn’t worth dwelling on those here either.
Instead, I want to focus on what I see as the real problem with the opposition. That’s Stratasys’ belief that copyright law should be used for things that are totally unrelated to the purpose of copyright law.
Copyright Law Should Protect Industrial Supply Chains?
Stratasys first argues that closed industrial systems have significant benefits. For the purposes of this discussion I will note, but not dwell upon, the fact that Stratasys seems unable to conceive of a world where an informed operator of a 3D printer weighs the value of closed industrial systems against the value of third party materials for their printer and concludes that they prefer third party materials.
Stratasys describes three benefits of closed systems in commercial applications:
- “The ability to consistently produce outputs that match established benchmarks by controlling system inputs”
- “A closed-loop feedback process that produces real-time quality and performance data to pinpoint performance issues and speed innovation”
- “Steady improvement in reliability and service levels permitting expansion to new classes of customers”
These benefits have a few things in common. The most obvious is that they are concerns that are completely beyond the scope of copyright law. A related similarity is that they are unrelated to protecting the software that runs 3D printers from infringement. A nexus with the purpose of copyright law would be the type of thing you might expect an opponent to raise in this type of proceeding. Stratasys appears unable to find one here.
Copyright Law Should Protect Airplane Safety?
Airplane safety was actually raised in the 2015 round of this proceeding, although it was largely abandoned by the time the final exemptions were issued. In this opposition, Stratasys details the work it has done to create the “Aircraft Interior Certification Solution” to provide “aerospace companies with a detailed verification process that tracks down the material and standards needed to install 3D printed parts in aircraft.”
That’s great! However, the integrity of components in airplane parts is totally unrelated to copyright law. We have a number of other regulatory regimes (and regulatory agencies - more on that below) specifically dedicated to making sure planes are safe. Which is good because a law passed to make it harder to rip DVDs is ill suited for that purpose.
Copyright Law Should Protect Occupational Safety And Cybersecurity?
Similarly, Stratasys points out that it has created closed systems to address the “need to mitigate risks involved in the use of a specific material, such as fire hazards or hazardous fumes.” This could be a pretty compelling reason for someone to not hack their 3D printer and change all the settings. It is totally unrelated to copyright law.
Stratasys also raises the specter of some sort of cybersecurity catastrophe, stating that “[a] 3D printer in a commercial setting with compromised or disabled TPMs would likely be more vulnerable to hackers, disgruntled employees, and other malicious actors.” Again, this may or may not be true. But we have entire branches of law designed to address hackers, disgruntled employees, and other malicious actors. In the context of any one of those groups monkeying with the settings on a 3D printer, copyright law is not one of those branches.
The Copyright Office Should Regulate Everything To Relieve Other Agencies of Their Burdens
This is probably my favorite argument. Stratasys describes my argument that the Copyright Office should stick to its knitting and leave things like regulating medical device safety to other expert agencies in this way:
“In essence, Petitioners want the Copyright Office to pass the buck, putting the burden on other agencies to anticipate and regulate the hacking of 3D printers.”
This characterization of my desires is totally accurate. I believe that we have government agencies besides the Copyright Office for a reason and that those agencies should decide how to handle the problems within their purview.
Stratasys actually describes exactly this concept of other agencies deciding how to handle the problems within their purview, although it attempts to frame the behavior as some sort of doomsday scenario:
“This would force federal agencies not only to grapple with the changes brought by 3D printers, but to contemplate scenarios where TPMs are legally circumvented, and possibly to pass new regulations to ban the circumvention of TPMs on 3D printers within their regulatory arena.”
(note that if the TPM - that’s DRM or digital lock - was circumvented for a purose other than using third party material in the printer, such a circumvention would fall beyond the scope of this exemption).
I agree with this vision of the future as well. Federal agencies should be forced to grapple with the changes brought by 3D printers within their regulatory arena. That is what we pay them to do. In fact, Stratasys immediately goes on to cite an example where the FDA ran a multi-year process to grapple with changes brought by 3D printing and then issued guidance within its area of regulatory expertise.
Stratasys’ kicker to this point is kind of beautiful: “In the current environment, this [agencies grappling with challenges and addressing them with regulation] would be a challenge to accomplish” (citing here as evidence).
What Now?
Where does this leave us? One of the major purposes of this entire process was to try and keep copyright law out of an area where it had no business. Stratasys’ opposition - presumably its strongest argument - effectively gives up the game. Its arguments are far removed from the world of copyright law because they have to be. Within the narrow context of copyright law there is no reason to object to this exemption request.
The next stop is will be hearings in DC on this petition in the spring. In the meantime, keep on eye on organizations like Public Knowledge. They (along with a number of other advocacy organizations and law school clinics) are helping to organize ways for everyone to get involved in this process.