As a 3D printing lawyer I can understand that there are sometimes devices where the end user is frustrated by all the things he can no longer do due to software restrictions, while the end user knows that there are third parties who have already made better firmware than the manufacturer. So, quickly download and flash, you would then say. However, this is not allowed in all countries, as shown below.
In the USA, for example, the hacking of firmware is prohibited, at least, according to this article. It is true it is about tractors and angry farmers, but, of course, it is equally good for 3D printers and frustrated buyers. The DMCA says you cannot bypass a DRM, and apparently it also applies if you do not want to violate copyright but just want to get rid of defective software and want to use your own or a third party’s. According to this site, an exception to the DMCA must be requested for each device and this has been achieved, among other things, for the iPhone jailbreak.
3D printing lawyer: What is the situation in the EU?
What is the situation in the EU? I quote the relevant parts from the Computer Programs Directive Articles 4 to 7. Rule 1: in the EU “the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof”, “in the absence of specific contractual provisions”, “shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction.”. Rule 2: no authorisation is required for interoperability. Rule 3: without prejudice to Rule 1 and 2, forbids: “any act of putting into circulation, or the possession for commercial purposes of, any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of any technical device which may have been applied to protect a computer program”.
Therefore, you can correct mistakes—if I read correctly— by hacking or changing, unless the agreement states so. Incidentally, there is discussion in the literature about how far you can go, and there is no clear statement from the EU judge.
How do 3D printer manufacturers deal with these rules? Now we have a 3D printer manufacturer (let’s call it Printythings) that has the following in its terms and conditions:
The Customer’s right to use any Deliverables supplied by Printythings which are protected by intellectual property rights, in particular computer software and documentation (“Software”), shall be strictly limited to internal business purposes and otherwise as provided in the Contract and in these Conditions. All other rights are reserved. The source code of the Software will not be delivered unless expressly agreed. The Customer shall refrain from (a) reverse engineering the Software or reducing it in any other ways to a form perceptible to humans; or (b) modifying, adapting or translating the Software, or creating derivative works of the Software, except in each case to the extent expressly permitted in the Contract or by mandatory law. Any copies of the Software shall contain all of the copyright notices shown on the original. Neither the Customer’s right to copy and modify the Software to the extent expressly permitted by applicable mandatory legislation regarding back up or the elimination of errors nor the Customer’s rights under applicable mandatory legislation regarding reverse engineering shall be deemed restricted hereby. The Customer shall refrain from selling the Software or generally making the Software available to any third party, whether by delivering a data medium, over a network, or in any other form, whether or not for compensation, except with Printythings’ prior written consent. Unless Printythings has reasonable cause to withhold the consent, it shall be granted if the third party acquirer assumes all obligations regarding the Software under the Contract and these Conditions and the Customer destroys all copies of the Software in its possession. Lending the Software for other than commercial purposes shall not require Printythings’ consent to the extent that the recipient submits to the terms of this clause and the lending does not constitute simultaneous use of more than one copy of the Software.”
How does this article in the general conditions of Printythings relate to the Computer Programs Directive? The terms and conditions say: may not, unless the law expressly says so in a mandatory way. The Computer Programs Directive, however, does not state mandatorily but in a regulatory way that it is not allowed. Deviation by agreement is acceptable. The question that remains, however, is whether you can still speak of “specific contractual provisions” when you are hiding something so important in your general terms and conditions. In a case in which the question was whether you may hide which court is competent in your general terms and conditions, the European judge has ruled that this is allowed, provided you have also handed over the general terms and conditions at the conclusion of the agreement, and the agreement explicitly refers to the terms and conditions. Therefore, the Printythings clause works, provided that Printythings has handed over the general terms and conditions at the time and explicitly refers to them in the contract.
Those who are not contractually bound to the 3D printer manufacturer cannot, in principle, bring modchips and flashcards to the market that bypass security, except under certain circumstances. Compare the Spanish case Nintendo/Quickmovil (2009): The Spanish court considered therein an article from the Spanish Penal Code (created as a corollary of EU legislation) that an interpretation of the law that would allow Nintendo to have the exclusive right to extend the functionalities of its gaming computer, cannot be the intention. In a later Nintendo case from 2014 in the European Court, the European Court stated that if modchips/flash cards are used primarily for other things than copyright infringement, the prohibition in the circumvention of security is disproportionate.
The moral of this story is: yes, sometimes the law helps 3D printer manufacturers by prohibiting things or making a contractual ban possible. Whether you need or “want” a contractual ban is a different matter. Almost certainly, you will then have to deal with end-users who feel—whether rightly or not—either frustrated or criminalised.
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This blog was published earlier on 3dfabprint.com.