Partner
An interesting debate is emerging in the US Copyright Office: what, if anything, should the US Copyright Office do about the materials that are used in 3D printers?
Under Section 1201 of the Copyright Act, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” In the past, this provision of the Digital Millennium Copyright Act (DMCA) was used by inkjet manufacturers to justify vendor lock in, that is, integrated circuit or other digital rights protection mechanisms that force consumers to buy refill cartridges from the inkjet manufacturer. Courts previously found that these inkjet manufacturers could not use the DMCA offensively in this matter. But, much like the ink jet printer cartridges of the past, 3D printer manufacturers are now actively lobbying the US Copyright Office to adopt regulations that would allow them to claim that the use of unauthorized third-party 3D printer materials constitutes a violation of the DMCA.
In a recent administrative proceeding in front of the Copyright Office, which was intended to determine whether an exemption to Section 1201 should be granted for third-party 3D printer refills (among other things), 3D printer manufacturers asserted their fears, which included a lack of control to ensure a quality product. To connect their commercial wants with Section 1201, 3D printer manufacturers have expressed concern that unauthorized third-party refills would necessarily have to “circumvent a technological measure that effectively controls access to a work protected under this title,” which, in this case, would likely be the digital rights management software code itself.
3D printer manufacturer Stratasys appeared at the Copyright Office hearing on behalf of the 3D printer industry, and Public Knowledge, among others, appeared on behalf of consumers seeking interoperability. We will keep you updated on further developments in this area.
The battle over 3D printer vendor lock-in sits at the intersection of copyright law, competition policy, and the right to repair. Understanding why copyright law is being invoked in what appears to be a straightforward product market dispute requires examining the legal structure of Section 1201 and how manufacturers have attempted to weaponize it.
Section 1201 of the Copyright Act, enacted as part of the DMCA in 1998, was designed to protect against digital piracy of copyrighted works like movies, music, and software. It prohibits circumventing technological protection measures (TPMs)—encryption, access controls, and similar mechanisms—that restrict access to copyrighted works. The statute also prohibits manufacturing or trafficking in tools primarily designed for circumvention.
Congress intended Section 1201 to protect the economic interests of copyright holders in the digital marketplace. What Congress did not anticipate is that hardware manufacturers would use the statute as a market exclusivity tool by embedding copyrighted software code in their products and then arguing that any attempt to use the product with third-party consumables necessarily circumvents a TPM protecting that code.
The 3D printer dispute follows a legal path first blazed by inkjet printer manufacturers. Lexmark International embedded authentication chips in its toner cartridges and argued that third-party cartridge makers who bypassed those chips were circumventing a TPM in violation of Section 1201. The Sixth Circuit rejected this argument in Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004), holding that Section 1201 does not extend to preventing competition in the market for consumable supplies. The court reasoned that allowing manufacturers to use copyright law to lock consumers into proprietary replacement parts would give copyright holders competitive advantages far beyond what copyright was designed to provide.
The Lexmark precedent is directly relevant to 3D printers, but the technology has evolved. Modern 3D printers use far more sophisticated firmware and digital control systems than the inkjet printers of the early 2000s. Manufacturers can credibly argue that the DRM embedded in their systems is more integral to the copyrighted software than the authentication chips in Lexmark’s cartridges—though this argument has yet to persuade courts or the Copyright Office.
Section 1201 includes a triennial rulemaking proceeding conducted by the Copyright Office and the National Telecommunications and Information Administration (NTIA). Every three years, the Register of Copyrights accepts petitions from the public requesting exemptions to the anti-circumvention rules for specific categories of works and uses. If the Register finds that users of a particular class of works are adversely affected by the prohibition on circumvention in their ability to make non-infringing uses, it recommends an exemption to the Librarian of Congress.
This rulemaking is the arena where the 3D printer debate is being fought. Consumer advocates and repair organizations have petitioned for exemptions that would allow circumvention of 3D printer DRM to use third-party materials. Manufacturers have opposed these exemptions. The Copyright Office must weigh the competing interests and make a recommendation that the Librarian of Congress then accepts or rejects.
The 3D printer vendor lock-in debate is part of a broader right-to-repair movement that has gained significant legislative traction. Several states have enacted or are considering right-to-repair legislation that would require manufacturers to provide access to diagnostic tools, repair documentation, and replacement parts to independent repair shops and consumers. At the federal level, the Federal Trade Commission has issued reports and policy statements supporting repair rights and criticizing manufacturer practices that restrict them.
For 3D printing, the right-to-repair analysis overlaps with competition law concerns. When a manufacturer uses copyright-protected software embedded in its hardware to force consumers to purchase proprietary consumables at premium prices, antitrust law may provide an additional avenue for challenge. The aftermarket for consumables in industries like medical imaging, commercial printing, and 3D manufacturing is frequently the most profitable part of a manufacturer’s business model—a structure that antitrust authorities have scrutinized in other contexts.
Apart from the vendor lock-in question, 3D printing raises distinct copyright issues concerning the objects being printed. Computer-aided design (CAD) files used to create 3D-printed objects are generally protected by copyright as software or pictorial/graphic works. Downloading or distributing a CAD file without authorization constitutes copyright infringement in the same way that downloading a song or software program does.
The physical objects produced by 3D printing present more complex questions. Purely functional objects (mechanical parts, tools, household hardware) are not copyrightable because copyright does not protect useful articles whose appearance is dictated entirely by their function. But objects with separable aesthetic elements—a sculpture, a decorative product, a piece of jewelry—may qualify for copyright protection. The separability analysis under Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017), provides the current framework for evaluating whether design elements of a useful article are protectable.
If you have questions about copyright law in the context of 3D printing or technology products, contact Revision Legal’s attorneys at 855-473-8474.
Hitpiece.com scraped artists’ music and created NFTs without permission. Here’s how the copyright infringement dispute unfolded and what it means for NFT platforms.
Read more about Hitpiece.com and Copyright Infringement
Cybersquatting involves registering domain names in bad faith to profit from others’ trademarks. Here’s an overview of the ACPA and how it protects trademark owners.
Read more about An Overview of Cybersquatting Laws
Copyright infringement fraud involves filing false DMCA notices or misrepresenting ownership to profit illegally. Here’s how these schemes work and how to fight back.
Read more about Copyright Infringement Fraud: A Serious Problem