3D Printer Jailbreaking: The Age-Old Open/Close Dilemma

Authored by John F. Hornick and Carlos J. Rosario

Two questions plague many 3D printer makers as they grow: (1) can we make our materials proprietary; and (2) what should we do when customers jailbreak our machines or pressure us to open our machines to competing materials?

The Digital Millennium Copyright Act (the DMCA) is a U.S. law enacted in response to the Internet's ability to allow widespread distribution of copyrighted material. In addition to its safe-harbor provisions that safeguard Internet service providers from lawsuits related to copyrighted works, the DMCA also prohibits circumventing Digital Rights Management (DRM) technology controlling access to copyrighted works. DRM technology is typically used to prevent the copying of music and movies, but it has also been used to block the use of competing 2D printer cartridges.¹

Every three years, the U.S. Copyright Office makes or renews rules that grant exemptions to the DMCA's ban on circumvention, to allow for legitimate non-infringing uses of copyrighted materials. For example, in 2003, an exemption for text readers of ebooks was granted. Similarly, in 2010, certain exemptions were granted for circumventing DVD's Content Scrambling System. Twenty-seven exemptions are being sought in 2015. These exemptions include audio-visual works for educational uses (e.g., Massive Open Online Courses, or MOOCs), vehicle software, networked medical devices, and 3D printer software that locks out competing materials.

If granted, "Class 26: Software—3D Printers" would allow for the circumvention of technological protection measures (TPMs) in 3D printer firmware or software to "allow use of non-manufacturer-approved feedstock in the printer."² This relates mostly to Material Extrusion machines. Advocacy group Public Knowledge has petitioned for the exemption, to permit 3D printer owners to circumvent TPMs that prevent them from using non-manufacturer approved materials.³ Public Knowledge argues that owners of 3D printers should be able to bypass these TPMs without liability.

Many-a-company has faced the proprietary vs. open-source dilemma. We need look no further than "Print the Legend" (available on Netflix) to see how this question shook the relationships between the founders of MakerBot. Manufacturers whose customers jailbreak their devices face a dilemma as old as industry: does suing customers for doing so makes good business sense?

Since the Proposed Rules regarding Class 26: Software—3D Printers appeared in the Federal Register on December 12, 2014, many stakeholders have weighed in on the issue. Ars Technica asked if 3D printing would be the next Napster.⁴ Maker Media posed the question, "Do You Really Own Your 3D Printer?"⁵

Although fledgling companies attempting to plant a stake in the 3D printing industry may find this exemption appealing, companies seeking investment dollars know all too well how much intellectual property can increase their valuation. So what is the best balance?

In the short term, 3D printer makers that lock out competing materials will probably continue to be able to do so. But in the long run, 3D printers will probably be opened to such materials, either because big and powerful customers pressure the manufacturers to do so, because a pioneering 3D printer company (a big one) opens its machines, or because jail-breaking away from control becomes widespread and possibly blessed by the law. But this need not be the end of the 3D printer companies' world. Printer manufacturers have options. For example, they could adopt approved-materials programs similar to the programs used by the developers of the CD-Disc and DVD. Those programs were win-win for the CD and DVD replicators and the developers of the technology. Although 3D printers have been around for over 25 years, the industry is not mature. As the 3D printing industry matures, business models will probably shift from strict razor-and-blades models to more creative models that are win-wins for the printer makers and the materials industry, allowing 3D printer companies to maximize profits on materials while minimizing costs.

Endnotes

¹ Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014).

² See, Fed. Reg. Vol. 29 No. 239, Friday, December 12, 2014, Proposed Rules, available at https://www.federalregister.gov/articles/2014/12/12/2014-29237/exemption-to-prohibition-oncircumvention-of-copyright-protection-systems-for-access-control.

³ See, https://www.publicknowledge.org/assets/uploads/blog/Public_Knowledge_3D_Printing_1201_filing.pdf.

⁴ See, http://arstechnica.com/tech-policy/2011/04/05/the-next-napster-copyright-questions-as-3dprinting-comes-of-age.

⁵ See, http://makezine.com/2015/04/30/really-3d-printer.