DMCA hearings: 3D printing

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 26: Software – 3D printers
This proposed class would allow circumvention of TPMs on
firmware or software in 3D printers to allow use of non-manufacturer-approved
feedstock in the printer.
 
Proponents: Sherwin Siy, Public Knowledge: be specific about
the copyrighted work at issue. The software embedded in the printer, not
anything produced by the printer, and not even necessarily the software
embedded on the chip.  Since 2003, when
2D printers came up, Lexmark has
moved that a bit more out of the arena of discussion.  Adverse effect: Stratasys is quite clear
about how they view their ability to lock TPMs to particular printers can
benefit them, and their incentives are clear.
 
Charlesworth: tell me more about the software as you
understand it at issue here.
 
A: we’re concerned about whether accessing the software in
the printer would constitute access under 1201. 
 
Charlesworth: reading through submissions, seemed that there
are two components: (1) the chip on the cartridge that (2) then locks into the
software on the machine. How does your exemption deal with both, or does it?
 
A: Ultimately what we want is to be able to use a chip that
was not created by the original mfgr or use feedstock not created by the
original mfgr. Both programs are involved, but the © work at issue would be the
one in the printer, as in the Lexmark
case. 
 
Charlesworth: what’s the nature of the circumvention?
 
A: number of ways. Could copy software on the chip.  That would interface w/the computer program
on the printer.  Q is whether access by
using the printer and creating potential RAM copies triggers 1201. Substitute
chip.  You could also reuse/modify an
existing chip.
 
Charlesworth: and in copying software is there circumvention
involved in the chip?
 
A: I don’t think there’s circumvention.  It’s likely to access a noncopyrighted
program. But to the extent that’s necessary … It would vary based on the nature
of the system. 
 
Charlesworth: what TPM is on a chip?
 
A: it protects the interface b/t the chip and the printer
itself.  In many cases there is no overt
TPM, it’s just a question of reading off the chip itself. It depends on other
variables.
 
C: there might be a © issue but not a TPM issue.
 
A: yes.
 
C: and the machine?
 
A: the circumvention would be circumventing the measures
that require a mfgr-created chip to operate. 
Authentication. The TPM controls the authentication. 
 
Q: are you doing anything to the software itself?
 
A: it depends on what the feedstock is. You might want to
change some of the variables in the program itself.  It would vary depending on the model of the
machine and other factors.
 
Michael Weinberg, former VP at Public Knowledge, now Shapeways,
here in personal capacity: Part of the issue is that once you get past an
abstract level: feedstock container and chip verifying that the container came
from mfgr—there are a number of technical ways to implement that verification.
You could make the chip very dumb, with most info/action on the software side.
You could structure the system w/ more info in the feedstock container chip so
the two pieces talk to each other more intensively. Depends on how you
implement it. The key thing is that at a high level of abstraction, there is at
a minimum software on the printer waiting to be used until it can verify that
it has approved input and that software is likely protected by © so the only
way you can access the interface is to convince it you have approved feedstock.
Implementation varies from machine to machine and mfgr to mfgr.
 
C: the TPM is the need for the chip to make the printer run?
Explain what the TPM is.
 
Siy: the system in its entirety that requires the presence
of the chip. Whether the code is on the chip or more likely on the printer,
that software code is the TPM, the part that requests authentication.
 
Weinberg: it’s easier to describe a dumb chip on a cartridge
and a smarter printer, but I want to be clear that we aren’t restricting our
request to that specific type of system.
 
C: what do you mean by a dumb chip?
 
Weinberg: may be as simple as serial number or RFID.  Information presenting to be read.
 
C: like a key.
 
Weinberg: like a swipe card to get into a building. It’s not
doing any processing, but w/out it the locks on the building won’t work. You
could have a smartphone that would communicate back and forth with the
building.  The level of technical
sophistication in keycard v. phone is different.
 
Q: is this intended primarily for consumer use or at the
manufacturer level?  Larger 3D printers?
 
Weinberg: Motivated by consumer use, but no reason to
exclude manufacturing/more sophisticated commercial players. Worth noting there
may be and likely are noncopyright related restrictions on what owners or
possessors are doing—contractual, warranty. The focus is the ©/DRM part.
 
Q: This is just about feedstock bypass, not software that
reads 3D modeling.
 
Weinberg: exactly correct. Nothing to do w/models going into
machine or coming out. Not even related to software running the machine except
for the feedstock part.
 
Q: does breaking TPM for feedstock affect 3D modeling
software?
 
A: the process that reads and verifies the input doesn’t
have to be linked to the process linked to slice the model.  One thing the machine will do is slice model
horizontally into thin layers and establish a traveling path through each layer
to create it. While the path is determined by the type of material, it’s not
determined by the origin. It could be implemented in a tied way on a machine.
 
Opponents: Ed Kerry (sp?), Stratasys Ltd. (or designated
alternate Stratasys witness): The output is very dependent on the material and
authenticity, though the input is not.
 
A: agree.
 
Siy: though that only means product quality, not © status.
 
C: might different TPMs protect the basic software v. the
modeling software? Or once you break it do you have access to everything?
 
Weinberg: there’s no technical reason. Mfgr can decide how to
implement it differently. You can choose one that simply governs feedstock
source.
 
C: what’s in the market?
 
Weinberg: I don’t know b/c no one is particularly interested
in making unauthorized copies of the software that runs the machine. The reason
people worry about these is that they want to use unapproved feedstock; not
discussion about accessing the software to copy it.
 
C: do you need to copy the software to modify the feedstock?
 
A: depends on the mfgr.
 
C: What is the legal basis for your exemption?
 
Weinberg: two core harms. 
Both flow from a cloud of ambiguity over whether this behavior even
triggers 1201.
 
C: what is the noninfringing use? [um, making stuff, which
doesn’t itself implicate ©?]
 
Siy: We want to figure out §106 uses—RAM copies made in the
utilization in the printer itself, or modifications necessary to use the
feedstock.  Both fall within §117.
 
C: if you alter the software you might be creating a
derivative work.
 
Siy: allowed by §117: adaptations
or copies created as essential step. They aren’t being made to distribute or
even leave the machine.
 
C: who owns the computer program in the machine?
 
Siy: the person who owns the machine.
 
C: what’s the evidence of that?
 
Siy: you could recognize that to the extent owned by the
hardware owner, §117 requires; MDY ruled that any contracts were covenants when
the Q is whether the use of the software is licensed or not.
 
C: what are the typical mfgr practices?
 
Siy: regardless of language of license, that will allow you
to use the printer.
 
C: but are they even claiming it’s under license?
 
Siy: it will vary from mfgr to mfgr.
 
Weinberg: especially in the consumer market, while I don’t
have a study of current licenses, there are probably 70 desktop 3D printer
companies of highly variable legal sophistication. It would be highly
surprising if you didn’t see almost every version of © license theory applied
to software in this space, including silence.
 
C: have you seen any purported licenses?
 
W: not in context of these proceedings.
 
C: any you’re sure are sold without a claimed license?
 
W: there are printers that are open licensed.
 
Q: have you looked at the printers using TPMs for their
licenses?
 
A: no.
 
Kerry: VP for Stratasys. 
Deal w/ top 120 manufacturers in the world. Prototypes/mfgr of parts. Those
same customers buy low end Makerbots as well. 
New 3D companies this year: 150. We have revolutionary technologies,
including using inkjet heads. Our software calculates droplets and can use 3
different materials at a time. My customers also use our service business,
where we make parts for customers. We are helping them go to direct digital
manufacturing of tools and end use parts.
 
A large airplane manufacturer is putting 1000 plastic parts
on a plane; we spent years certifying this plastic for airplane parts. The
highly integrated machine that prints it as FAA certified part is very
important.
 
C: Are the airline companies making those parts?
 
A: they’re airline companies and downstream manufacturers.
 
C: why do they care?
 
A: customers don’t want anybody to be able to get into that
integrated system. They want a reliable part that is exactly what they declared
it to be. They don’t want people using cheaper feedstock. Traceable and
reliable to be kept for years. [And that is related to © how?] Important that
no derivative works are created and no feedstock introduced.
 
C: are there specific regs on making airplane parts?
 
A: The FAA. The FDA regulates medical devices. I’m not an
expert.  [Why is the © Office making
decisions about this?] We help our customers certify parts and materials to the
FAA and FDA.
 
C: these are manufacturing type customers, not Makerbot
customers.
 
A: correct.
 
Q: can you test the part itself to make sure it’s used the
right material?
 
A: The customer does test the part, though I don’t know if
they test the material. Test it as they’d test from any manufacturer.

C: do they test every part? [© Office lawyer as airplane mechanic.]
 
A: depends on what the part is. 
 
Q: Is the fear that someone not in the normal manufacturing
stream gets ahold of inferior materials and then tries to put that part into
the stream via passing off?
 
A: that’s my customers’ fear. They have multiple suppliers
who supply counterfeit parts, which would affect our brand and that of the
customers.  [Wouldn’t that already be
illegal and violate the suppliers’ contracts and probably trademarks?]
 
Our printers are fully integrated systems. They’re servers,
not printers. We’re talking about the operating system and derivative
works.  Have to meet tight
tolerances.  Controlling the slicing is
important. We track lot numbers, enabling verification of parts.  Inkjets sold 600 million printers last year;
we’ve only sold 120,000 systems and we’re the biggest—nascent industry.
 
C: answer Makerbot v. more sophisticated: how do you handle
the software?
 
A: by license. 
 
C: do you provide ongoing updates?
 
A: yes, we have an ongoing relationship. Thingiverse. We
accept files made by different design software.
 
Weinberg: But Thingiverse doesn’t update the software.
 
C: do you send out patches to the Makerbot?
 
A: don’t know, but on the other lines we do.
 
Weinberg: I own a no longer supported Makerbot.  There are machines that are no longer
upgraded.
 
C: how do you get upgrades if they were there?
 
Weinberg: SD cards were required. As machines get more
sophisticated they might be able to do direct downloads; it depends.
 
C: in many cases, you might be receiving upgrades for a
consumer device.
 
A: it’s possible.
 
Q: is that software encrypted?
 
Kerry: it’s compiled to run on the printer. The feedstock
chip is encrypted.
 
C: what is your warranty policy if someone modifies your
printer?
 
Kerry: it’s no longer warranted. 1 year warranty otherwise.
 
Q: are you claiming the feedstock chips are copyrightable?
 
Kerry: not today, but we anticipate it might be.
 
3D printing is more complicated than 2D printing.  IP is critical to the industry to justify
investments for future development. I’m not a lawyer or DMCA expert, but I
understand it was enacted to prevent circumvention of TPMs designed to prevent
copying of IP. Exemptions were to be exceptional—a fail safe where there are
substantial adverse effects on noninfringing uses.
 
Petitioners’ proposed exemption would deprive industry of
useful tool during critical period. They aren’t seeking lawful access, but misusing
the exemption process to encourage users to bypass controls where DMCA doesn’t
apply and encourage users to infringe. Showing is insufficient.
 
C: Cheaper feedstock is a benefit, no?
 
Siy: and different.
 
Kerry: today that chip is not copyright protected, though we
do plan to have one.
 
C: are you saying you don’t object to doing something w/ the
chip?
 
Kerry: we highly object to counterfeiting the chip and to
the exemption.  This industry is just
starting. They will not do medical devices, airplane parts, or car parts if
they can be hacked.
 
C: on the consumer end, if I buy a makerbot and want to use
different feedstock and break my warranty, so what?
 
Kerry: if the part comes out not right it affects our
brand.  Bigger concern on high end b/c
derivative works of our server system is a huge issue b/c of our competitors in
other companies. Opening that up for competition and un-integrating the system
will stunt the industry.
 
C: are you familiar with the Lexmark case saying that using a different cartridge didn’t violate
©?
 
Kerry: yes, but that wasn’t a server.  Printer toner is basically all the same. We
print 100s of different kinds of plastics in different ways. Not a fair
comparison.  People rely on the objects
we make.
 
C: respond to concern about the integrity of mfg chain?
 
Siy: in both consumer and commercial context, the person
making use of the exemption is the person using the printer. They’ll be fully
aware they’re the ones using 3d party feedstock.  That’s their responsibility. [And has nothing
to do with ©!]  As for the commercial
context, the FAA regulations will dictate what’s relevant. If you need a
certain plastic, then the certification will say so.
 
C: but the concern is that bad guys will sneak bad stuff
into the chain, b/c it will seem legitimate to use cheaper stuff.  
 
Siy: Q of integrity of product as functional object depends
on manufacturer and supplier. If they’re counterfeit, they’re counterfeit. The
TPMs don’t solve the problem of unreliable suppliers.
 
C: makes it more likely that suppliers would circumvent and
use inferior feedstock.
 
Siy: people would be violating their contracts.
 
Kerry: there are plenty of open printers w/ no encryption.
 
Siy: people who want to produce parts on the cheap can do
that already then.
 
C: do you have specific examples in the record of people who
want to circumvent commercial/mfg type printers as opposed to consumer
printers?
 
Siy: no.
 
Weinberg: there are companies actively developing
alternative feedstocks for industrial printers. They see themselves engaging in
an activity unrelated to © and don’t understand why they should come to this
proceeding.  One thing that can easily
get lost: you have the idea of the primary benefit being lower costs of
existing materials, but there also new materials for existing printers that are
already owned. They’re looking at specific printers b/c different printers
compete on different tech/functional capabilities—they aren’t a commodity.

C: why not just target it to open printers?
 
Weinberg: there are in desktop space, less so commercial. But
the reason is some printers are the only printers that can achieve particular
tech goals. If some are locked down you can’t necessarily achieve the same
goal.
 
C: example?
 
Weinberg: Stratasys says there are things only they can do.
 
C: others?
 
Weinberg: the people who’ve developed open bio-3 printing
started w/ a Stratasys machine b/c that was the machine w/ the technical
ability they required for initial stages of their process.
 
Kerry: we regularly offer licenses for research/development
for this exact reason. There are a lot of developing materials, and we’re the
#1 material developer. It’s our greatest area of investment.
 
Weinberg: some of the techniques are patented, and by
definition they’re only found in one printer. 20 years of patents tied to
specific manufacturer.
 
Q: how useful 1201(f) could be?
 
Siy: That was pre Lexmark—we don’t know about the printer
engine.  About reverse engineering, not
about interoperability. Copying chip directly makes 1201(f) uncertain
alternative. As for reverse engineering the software itself: the Q is what the allegedly
infringing use. If the act is reverse engineering, 1201(f) works, but the use
itself doesn’t get certainty from (f). 
It does not obviate the need for an exemption across the uses necessary
depending on the circumvention at issue.
 
Q: specifics?
 
Siy: no b/c of wide number of ways in which TPMs can be
implemented. Kerry just said they wanted to include more
sophisticated/copyrightable software on chips. Where the circumvention is
necessary might change.
 
§117 is one of the ways in which the use by a consumer of a
3D printer of third party is feedstock is noninfringing. There are other
reasons for noninfringing uses—use with permission. Even the most restrictive
license will provide for the use of software. The only way in which use of a
third party feedstock could infringe would be if you believed that a functional
condition of the grant was not using third party feedstock.
 
C: but you might be altering the software.
 
Siy: but you have the right to use.  [I don’t know why alterations in parameters
would create a derivative work—if it’s swapping one set of physical facts about
a material for another, that’s not enough creativity to create a separate work.]
Also fair use.
 
Q: how much change in the software would be necessary?
 
Kerry: we test and tune the machine for new feedstock, and
sometimes up to a year before the machine produces a high number of reliable
parts. Motion control, heating, distribution, and layering b/c customers demand
precision parts.
 
Q: but how much of the code is changed?
 
A: don’t know.
 
Q: any other distinguishing characteristics b/t high end and
low end consumers? We say prosumer, tends to be professional. Home market is
lower end. Pro engineer will use one on his desk.

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