In the ongoing litigation between Defense Distributed and state attorneys general over the distribution of three-dimensional models of firearms and components thereof over the Internet (which has been approved by all federal regulatory agencies), I was asked to submit an affidavit in support of the Defense Distributed case. I have previously described this case here in my post “Code is Speech”.
Here is what I drafted which, after consultation with others whose efforts are much appreciated but will remain unnamed, will be submitted into the public record. This is exactly what was submitted, less my signature: why make it easy for identity thieves? This was submitted, as is done, in gnarly monospaced text with no mark-up. If it shows up in your browser with awkward line breaks, try making the browser window wider and it should get better. If you’re on a tablet or mobile phone, try it when you get back to the desktop.
The opening and closing paragraphs are as prescribed in 28 U.S.C. § 1746 for an “Unsworn declaration under penalty of perjury” by a non-U.S. person. This is also called a “self-authenticating affidavit”.
This may seem lukewarm to those accustomed to my usual firebrand rhetoric. In this declaration, I only wanted to state things which I knew or believed based upon my own personal experience. Consequently, I eschewed discussing the state of the art in additive manufacturing (I have never actually seen nor used an additive manufacturing machine) or the limitations of present-day machines (all of that may, and probably will, change in a few years).
Attorneys for Defense Distributed expect to lose in the original district court litigation and the Ninth Circuit, but the purpose of this declaration is to be used in higher court appeals where there is a less ideological and more fact-based scrutiny of cases.
Although I really had better things to do this week, I was glad to take the time to support the Defense Distributed case. Even if you don’t care about guns, the attorneys’ general position in this case argues that computer-mediated speech: the transmission of files from computer to computer, is not speech protected by the First Amendment. This is arguably the greatest assault on free speech since the adoption of that amendment.
I am privileged to have the opportunity to oppose it.
(This declaration is a public document which will become part of the record of the trial and eventual appeals. I am disclosing nothing here which will not be available to those following the litigation.)
DECLARATION OF JOHN WALKER
I, John Walker, pursuant to 28 U.S.C. § 1746 hereby declare and
say as follows:
1. I was a co-founder of Autodesk, Inc. (ADSK:NASDAQ),
developer of the AutoCAD® computer-aided design
software. I was president, chairman, and chief
executive officer from the incorporation of the company
in April 1982 until November 1986, more than a year
after its initial public stock offering in June 1985. I
continued to serve as chairman of the board of directors
until April 1988, after which I concentrated on software
development.
2. Autodesk is the developer of the AutoCAD® software, one
of the most widely-used computer-aided design and
drafting software packages in the world. AutoCAD allows
creation of two- and three-dimensional models of designs
and, with third-party products, their analysis and
fabrication.
3. During the start-up phase of Autodesk, I was one of the
three principal software developers of AutoCAD and wrote
around one third of the source code of the initial
release of the program.
4. Subsequently, I contributed to the development of
three-dimensional extensions of the original AutoCAD
drafting system, was lead developer on AutoShade[tm],
which produced realistic renderings of three-dimensional
models, and developed the prototype of integration of
constructive solid geometry into AutoCAD, which was
subsequently marketed as the AutoCAD Advanced Modeling
Extension (AME).
5. I retired from Autodesk in 1994 and since have had no
connection with the company other than as a shareholder
with less than 5% ownership of the company's common
stock.
Design Versus Fabrication
6. From my experience at Autodesk, I became aware of the
distinction between the design of an object and the
fabrication of that object from the design. For
example, the patent drawings and written description in
firearms patents provide sufficient information "as to
enable any person skilled in the art to which it
pertains, or with which it is most nearly connected, to
make and use the same, and shall set forth the best mode
contemplated by the inventor or joint inventor of
carrying out the invention" [35 U.S.C. § 112 (a)]. But
this is in no way a mechanical process. One must
interpret the design, choose materials suitable for each
component, and then decide which manufacturing process
(milling, stamping, turning, casting, etc.) is best to
produce it, including steps such as heat-treating and
the application of coatings. This process is called
"production planning", and it is a human skill that is
required to turn a design, published in a patent
description or elsewhere, into a physical realisation of
the object described by that design.
7. A three-dimensional model of an object specifies its
geometry but does not specify the materials from which
it is fabricated, how the fabrication is done, or any
special steps required (for example, annealing or other
heat treating, coatings, etc.) before the component is
assembled into the design.
8. Three-dimensional models of physical objects have many
other applications than computer-aided manufacturing.
Three-dimensional models are built to permit analysis of
designs including structural strength and heat flow via
the finite element method. Models permit rendering of
realistic graphic images for product visualisation,
illustration, and the production of training and service
documentation. Models can be used in simulations to
study the properties and operation of designs prior to
physically manufacturing them. Models for finite element
analysis have been built since the 1960s, decades before
the first additive manufacturing machines were
demonstrated in the 1980s.
9. Some three-dimensional models contain information which
goes well beyond a geometric description of an object
for manufacturing. For example, it is common to produce
"parametric" models which describe a family of objects
which can be generated by varying a set of inputs
("parameters"). For example, a three-dimensional model
of a shoe could be parameterised to generate left and
right shoes of various sizes and widths, with
information within the model automatically adjusting the
dimensions of the components of the shoe accordingly.
The model is thus not the rote expression of a
particular manufactured object but rather a description
of a potentially unlimited number of objects where the
intent of the human designer, in setting the parameters,
determines the precise geometry of an object built from
the model.
10. A three-dimensional model often expresses relationships
among components of the model which facilitate analysis
and parametric design. Such a model can be thought of
like a spreadsheet, in which the value of cells are
determined by their mathematical relationships to other
cells, as opposed to a static table of numbers printed
on paper.
Additive Manufacturing ("3D Printing")
11. Additive manufacturing (often called, confusingly, "3D
[for three-dimensional] printing") is a technology by
which objects are built to the specifications of a
three-dimensional computer model by a device which
fabricates the object by adding material according to
the design. Most existing additive manufacturing
devices can only use a single material in a production
run, which limits the complexity of objects they can
fabricate.
12. Additive manufacturing, thus, builds up a part by adding
material, while subtractive manufacturing (for example,
milling, turning, and drilling) starts with a block of
solid material and cuts away until the desired part is
left. Many machine shops have tools of both kinds, and
these tools may be computer controlled.
13. Additive manufacturing is an alternative to traditional
kinds of manufacturing such as milling, turning, and
cutting. With few exceptions, any object which can be
produced by additive manufacturing can be produced, from
paper drawings or their electronic equivalent, with
machine tools that date from the 19th century. Additive
manufacturing is simply another machine tool, and the
choice of whether to use it or other tools is a matter
of economics and the properties of the part being
manufactured.
14. Over time, machine tools have become easier to use. The
introduction of computer numerical control (CNC) machine
tools has dramatically reduced the manual labour
required to manufacture parts from a design. The
computer-aided design industry, of which Autodesk is a
part, has, over the last half-century, reduced the cost
of going from concept to manufactured part, increasing
the productivity and competitiveness of firms which
adopt it and decreasing the cost of products they make.
Additive manufacturing is one of a variety of CNC
machine tools in use today.
15. It is in no sense true that additive manufacturing
allows the production of functional objects such as
firearms from design files without human intervention.
Just as a human trying to fabricate a firearm from its
description in a patent filing (available in electronic
form, like the additive manufacturing model), one must
choose the proper material, its treatment, and how it is
assembled into the completed product. Thus, an additive
manufacturing file describing the geometry of a
component of a firearm is no more an actual firearm than
a patent drawing of a firearm (published worldwide in
electronic form by the U.S. Patent and Trademark Office)
is a firearm.
Computer Code and Speech
16. Computer programs and data files are indistinguishable
from speech. A computer file, including a
three-dimensional model for additive manufacturing, can
be expressed as text which one can print in a newspaper
or pamphlet, declaim from a soapbox, or distribute via
other media. It may be boring to those unacquainted
with its idioms, but it is speech nonetheless. There is
no basis on which to claim that computer code is not
subject to the same protections as verbal speech or
printed material.
17. For example, the following is the definition of a unit
cube in the STL language used to to express models for
many additive manufacturing devices.
solid cube_corner
facet normal 0.0 -1.0 0.0
outer loop
vertex 0.0 0.0 0.0
vertex 1.0 0.0 0.0
vertex 0.0 0.0 1.0
endloop
endfacet
endsolid
This text can be written, read, and understood by a
human familiar with the technology as well as by a
computer. It is entirely equivalent to a description of
a unit cube written in English or another human
language. When read by a computer, it can be used for
structural analysis, image rendering, simulation, and
other applications as well as additive manufacturing.
The fact that the STL language can be read by a computer
in no way changes the fact that it is text, and thus,
speech.
18. As an additional example, the following is an AutoCAD
DXF[tm] file describing a two-dimensional line between
the points (0, 0) and (1, 1), placed on layer 0 of a
model.
0
SECTION
2
ENTITIES
0
LINE
8
0
10
0.0
20
0.0
11
1.0
21
1.0
0
ENDSEC
0
EOF
Again, while perhaps not as easy to read as the STL file
until a human has learned the structure of the file,
this is clearly text, and thus speech.
19. It is common in computer programming and computer-aided
design to consider computer code and data files written
in textual form as simultaneously communicating to
humans and computers. Donald E. Knuth, professor
emeritus of computer science at Stanford University and
author of "The Art of Computer Programming", advised
programmers:
"Instead of imagining that our main task is to
instruct a computer what to do, let us concentrate
rather on explaining to human beings what we want a
computer to do."[Knuth 1992]
A design file, such as those illustrated above in
paragraphs 17 and 18 is, similarly, a description of a
design to a human as well as to a computer. If it is a
description of a physical object, a human machinist
could use it to manufacture the object just as the
object could be fabricated from the verbal description
and drawings in a patent.
20. Computer code has long been considered text
indistinguishable from any other form of speech in
written form. Many books, consisting in substantial
part of computer code, have been published and are
treated for the purpose of copyright and other
intellectual property law like any other literary work.
For example the "Numerical Recipes"[Press] series of
books presents computer code in a variety of programming
languages which implements fundamental algorithms for
numerical computation.
Conclusions
21. There is a clear distinction between the design of an
artefact, whether expressed in paper drawings, a written
description, or a digital geometric model, and an object
manufactured from that design.
22. Manufacturing an artefact from a design, however
expressed, is a process involving human judgement in
selecting materials and the tools used to fabricate
parts from it.
23. Additive manufacturing ("3D printing") is one of a
variety of tools which can be used to fabricate parts.
It is in no way qualitatively different from alternative
tools such as milling machines, lathes, drills, saws,
etc., all of which can be computer controlled.
24. A digital geometric model of an object is one form of
description which can guide its fabrication. As such,
it is entirely equivalent to, for example, a dimensioned
drawing (blueprint) from which a machinist works.
25. Digital geometric models of objects can be expressed
as text which can be printed on paper or read aloud
as well as stored and transmitted electronically.
Thus they are speech.
References
[Knuth 1992] Knuth, Donald E. Literate Programming.
Stanford, CA: Center for the Study of
Language and Information, 1992.
ISBN: 978-0-937073-80-3.
[Press] Press, William H. et al. Numerical Recipes.
Cambridge (UK): Cambridge University Press,
(various dates).
Programming language editions:
C++ 978-0-521-88068-8
C 978-0-521-43108-8
Fortran 978-0-521-43064-7
Pascal 978-0-521-37516-0
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.
Executed on November 22, 2018
(Signature)
_______________________________
John Walker
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