Should the US Copyright Office oversee whether 3D printer operators can use feedstock not approved by their machine’s maker to turn out medical devices or airplane parts, or is that the role of the US Food and Drug Administration (FDA) and US Federal Aviation Administration (FAA), respectively?
The question is part of an argument directed to the Copyright Office by a lawyer who is asking the government to toss out qualifying language to an exemption to digital rights management law that lets users modify printers to use non-proprietary feedstock. Although the request is from a lawyer, it affects anyone who wants to tinker with a printer’s software in the course of making a product to sell.
As currently written, the qualifying language cancels the exemption, argues Michael Weinberg, an in-house lawyer for Shapeways Inc. (New York), a 3D printing service bureau. (The feedstock issue is a personal effort for him and not part of his responsibilities to his employer.) The exemption approves modifying 3D printers’ software in order to use non-proprietary feedstock, but then adds the qualifying language “except for commercial products that are subject to regulatory or legal oversight.” Since “the legal and regulatory system of the United States is vast and touches on almost any good that could be created by a 3D printer,” Weinberg wrote to the Copyright Office, the exemption as written is useless. In December, he wrote his petition to remove it.
The petition is part of a process that occurs every three years. The exemption and qualification were added in 2015. Presumably, the exemption was written for product safety reasons, in order to prevent the use of substandard material to 3D print highly regulated devices or parts that are critical to human health and safety, such as medical devices or airplane components.
But, Weinberg argued, the language limiting the exemption now is overly broad. “It’s trying to stop a harm that may not exist and in doing so it prohibits a lot of activity that no one has an objection to,” he said.
The Copyright Office cited a letter from the FDA as the basis for the language, but the correspondence almost exclusively discusses tampering with software in medical devices, and devotes only one paragraph to 3D printers.
Job of the FDA, FAA?
In a separate, coincidental action of interest to medical device manufacturers, the FDA issued its final guidance on 3D printing for their industry in December. Weinberg’s point is the Copyright Office, although expert in copyright issues, is not positioned to address concerns about medical devices or airplane parts: That’s the job of the FDA and the FAA, respectively, he said.
He acknowledges there are legitimate reasons why manufacturers would want to protect their machines from the use of non-proprietary feedstock.
“The machines are expensive and often under warranty,” Weinberg said. “There is the possibility that unapproved feedstock could damage the machine.” But is there a legitimate copyright reason for the same purpose? “No. Copyright law is not the way to advance that goal,” Weinberg said.
The sole online comment on the petition, from the Free Software Foundation, a Boston-based nonprofit that promotes computer user freedom, supports Weinberg and addresses additional issues.
“Users have the right to control their own 3D printers,” the foundation commented. “In this area, the use of technical protection measures in order to lock users into purchasing particular feedstock is a gross abuse that goes far beyond the purposes of copyright law. Users should be able to use any feedstock they choose, and should further be permitted to install any software they desire on their 3D printers.”
You can submit a comment supporting or refuting Weinberg’s petition by March 14 at: https://www.copyright.gov/1201/2018/comment-submission/ and clicking on the comment submission button.
The Copyright Office will follow written comments with public hearings in April in Washington D.C., and in California on a date to be determined.