The Limits of Creativity in Copyright: Digital Manufacturing Files and Lockout Codes

As the distinction between the digital and physical worlds continues to diminish, the necessity to reevaluate the bargain struck by the copyright regime increases in importance. Digitization brings increasingly more aspects of our world into the potential ambit of the copyright system. To understand whether and how the copyright system should apply in an increasingly digital world, it is first necessary to understand doctrinally how current copyright laws apply to new digital works. This Article corrects several errors that have appeared in the literature analyzing copyright law’s treatment of 3D printing and other digital manufacturing files. This Article incorporates an advanced technical understanding of digital manufacturing files and applies that understanding to copyright doctrine to clarify misunderstandings. The analysis briefly confirms that digital files created to manufacture creative objects are themselves clearly protected by copyright. On the other hand, and contrary to several assertions in the literature, most files created to manufacture purely utilitarian objects are not copyrightable because they lack a modicum of creativity. The lack of copyright protection for these files calls into question a number of assumptions, including whether they can be protected against even verbatim copying and whether open-source licenses involving these files can efficaciously bind downstream users. If digital manufacturing files of purely utilitarian objects do not enjoy copyright protection, creators may seek to embed additional, ancillary copyrightable material in the files to secure protection. This ancillary material serves as a lock-out code, which tries to prevent what would otherwise be lawful copying. This Article analyzes that phenomenon and discusses potential ways the law may react to it.