As we have reported, the sixth triennial rulemaking proceeding by the Librarian of Congress resulted in a wide range of DMCA exemptions. Today, in our final post, we cover a new exemption involving the use of 3D printers.
3D printing 101
3D printing technology allows users to convert digital data into physical objects. The 3D printing process requires the use of material, known as “feedstock,” that ultimately constitutes the final product. Materials used as feedstock for printing include various types of plastics, metals, nylon, epoxy resins, wax, and glass-filled polyamide. The printer applies layers of the material until it forms a three-dimensional object.
3D printer manufacturers use technological protection measures (“TPMs”), such as microchip verification systems, that require users to purchase the manufacturer’s proprietary feedstock or other manufacturer-approved feedstock.
The proponent of the 3D printer exemption wanted users to be able to circumvent TPMs in 3D printers to allow the use of feedstock that is not approved by the printer manufacturer and may therefore cost less. Opponents pointed to potential problems that could result from the use of inferior materials.
The Copyright Office adopted the following DMCA exemption:
Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data; provided, however, that 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 or a related certification process, or where the circumvention is otherwise unlawful.
As a preliminary matter, the exemption is narrowly drawn to cover circumvention “solely for the purpose of using alternative feedstock.” However, the exemption does allow the use feedstock brands as well as feedstock materials that are not approved by the printer manufacturer.
Regulated products in commerce are excluded
Many uses of 3D printers—fabrication of vehicle components, firearms, aerospace parts, medical implants, and prosthetics—raise safety and regulatory issues. As a result, the language of the final exemption excludes the circumvention of computer programs on 3D printers that produce goods that are subject to legal or regulatory oversight and that will be used in commerce.
The exemption does not provide any guidance as to the meaning of the phrase “subject to legal or regulatory oversight”. While some product categories easily fit this description – firearms and medical products – the full scope of this exclusion remains unclear. Furthermore, the exclusion requires that regulated products be used “in commerce.” Therefore, if printed products are subject to legal or regulatory oversight, but are not produced for use in commerce, the exemption is still available for the user. The Register of Copyrights explained it this way: “Users should be free to tinker with their 3D printers, but without putting those further down the stream of commerce at risk.”
The exemption does not prevent printer manufacturers from developing and implementing more sophisticated TPM systems. In fact, the exemption only applies when the TPM utilized by the printer manufacturer is a “microchip-reliant technological measure.” If a manufacturer uses a TPM that is not a microchip-reliant, the exemption does not apply.
Also, as is the case with the other exemptions, this one only immunizes a user from liability under Section 1201(a)(1) of the DMCA. The exemption does not apply to avoid liability under 1201(a)(2) or 1201(b) of the DMCA, which prohibit trafficking in circumvention tools and services. In other words, while a user of a 3D printer might be able to use the exemption to avoid liability under 1201(a)(1) for circumventing a TPM, a seller of software, tools, or instructions that assist others in circumventing a TPM will not be able to assert the exemption. Additionally, the exemption would not prevent a breach of contract claim if the manufacturer and user had entered into an agreement covering permissible feedstock.
With respect to 3D printing in general, the current exemption does not affect owners’ rights in either their goods made with 3D printing or in the directions or designs that instruct the 3D printer in how to make the goods. Consequently, brand owners may wish to consider adding – even if they are not legally required—proprietary rights notices on their goods. Although they may not be required, proprietary rights notices can serve as a warning to users that replicas may not be authorized. In addition, brand owners may wish to review the design libraries that the 3D printer manufacturers or others may make available on web sites, and, with respect to goods covered by a registered copyright, consider a DMCA “takedown” notice for those designs that potentially infringe the owner’s copyright.