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What the Library of Congress Decided This Week About 3D Printing

October 30, 2015 , , , ,

What does 3D printing have to do with the DMCA?

In November 2014, Public Knowledge petitioned the Copyright Office for a number of exemptions to the prohibition against circumventing technological protection measures (i.e. “digital locks”) protecting copyrighted works under Section 1201 of the Digital Millennium Copyright Act.

One of the exemptions we sought would allow users of 3D printers to use the replacement feedstock (i.e. the 3D printer equivalent of replacement ink cartridges or laser printer toner cartridges) of their choice. Earlier this year, we also filed comments in support of the exemption. We made this effort to ensure manufacturers of 3D printers could not use copyright law to lock printer users into using only expensive “brand name” replacement feedstock.

Fortunately, the Library of Congress, at the recommendation of the Copyright Office, granted our request, permitting users to use replacement materials that are not authorized by the printer’s manufacturer without running afoul of copyright law. However, that we even needed to seek permission for something so simple and beyond the purpose of copyright law highlights why Public Knowledge supports efforts to reform Section 1201 and end the absurdity of needing exemptions like this one. Nevertheless, this is a win for competition, tinkerers, and consumers, at least in principle. Unfortunately, the win comes with significant caveats, which we’ll discuss in a moment.

This ruling is the culmination of a process that takes place every three years, where the public must seek the permission of the Librarian of Congress to engage in what is already lawful activity (i.e. noninfringing use of copyrighted works). Other well known examples of lawful activity that requires the Librarian’s blessing every three years include jailbreaking tablets, unlocking cell phones, and allowing documentary filmmakers and educators to extract film clips from DVDs.

Before an exemption can be granted, the Librarian, with the recommendation of the Copyright Office, must first find that absent the proposed exemption, individuals who are users of copyrighted works are, or are likely to be, adversely affected in their ability to make noninfringing uses. The proponent of an exemption has to show that the use at issue is noninfringing under statutory law or established legal precedents. Additionally, the proponent must establish that the noninfringing use is, or is likely to be, adversely affected by the prohibition on circumvention. An exemption is not granted if there are alternatives to circumvention that permit the noninfringing use, regardless of how ridiculous those alternatives may be.

This process results in a constant, and often frustrating, back and forth between the public and the Copyright Office. You can read our thoughts on the flaws of the exemption process as a whole in additional comments we submitted to the Copyright Office as part of this cycle, and learn more on our Anticircumvention page.

So, the Exemption was Granted. That’s a Win, Right?

Well, yes… and no. We are pleased that the Library of Congress stands behind the theory that 3D printer users circumventing a digital lock in order to use replacement feedstock of their choice in their own printers is “likely noninfringing as a matter of fair use.” However, the Librarian added several conditions to the granted exemption, which threaten to swallow the exemption whole.

What’s the Problem?

The Librarian included the following language limiting the exemption:

“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…”

One way to translate this would be: if your printer is capable of producing something for sale (e.g., on Etsy), and that thing is subject to legal rules, you don’t qualify for an exemption to use third-party replacement feedstock. The trouble is, any 3D printer is capable of producing things that can be sold, and tort law applies to nearly everything. In short, the exemption is potentially hollow.

It’s worth asking why caveats to the exemption were needed in the first place. The Librarian has the ability to grant exemptions for 3D printers without differentiating between commercial and personal use. For some reason, the Copyright Office felt like it needed to address concerns that have nothing to do with copyright law, by imposing a somewhat arbitrary distinction between “commercial” printers and “personal” printers. Unfortunately for printer users, it’s a distinction without a difference. This is why both supporters and opponents of the exemption advised the Copyright Office against attempting to make this distinction, but the Office failed to heed the warnings.

Similarly, the Office insisted on adding language about production “subject to legal[…]oversight” in an effort to somehow address safety concerns. It is unclear how giving printer manufacturers a copyright claim against printer users helps protect the public in ways that product safety laws don’t. The result is a muddled exemption that exemplifies what happens when a well-intentioned agency attempts to use copyright law to achieve regulatory goals in which it lacks expertise.

Copyright law should address copyright issues. By trying to solve issues better left to the relevant areas of law, the Copyright Office has given us an exemption that leaves 3D printer users who don’t want to be restricted in using replacement feedstock with as much legal uncertainty as before. Unfortunately, unless Congress takes action to reform the law, this is what we’re left with for now. Maybe the Library of Congress can get it right in three years.

Contact your representative in Congress here to tell them it’s time to revise Section 1201 of the DMCA.

See what consumer advocates are saying about DMCA reform here.

Check out our latest podcast on the Section 1201 exemption process results here.

Image credit: Wikimedia Commons user Subhashish Panigrahi