O P E N S O U R C E H A R D W A R E L I C E N S E G U I D E V S 0 . 1 - EN
+ + + Translation de>en made by Frank Sievers, Thank You Frank! + + +
On Open Source Hardware Licences
One of the most important questions concerning Open Source Hardware is the question of licensing. It makes for a lot of uncertainties. And it does so for a good reason: This question is not trivial and not easy to answer. During my search on the web, I have not found a single text that would deliver a good short introduction into the topic, answering the most important questions and giving guidance. Although there are some good – texts – concerning – this topic which were quite instructive, but there was no real summary to be found. Those text most certainly exist somewhere, but the fact that I did not find them is a clear sign that there are not so many of them yet. That’s the reason why I would like to initiate the development of such a text, as a sort of extension to the Open Source it Manuals. In order to do this, I will at first summarize the answers I have found to my question of licensing.
The version below is only intended as a start. It is the Version 0.1 of an Open Source Hardware Licence Guide. Please everyone feel free to add to it using the comment function. If you see errors in the text, please let me know, and please post questions that you have and that this text does not answer. And please tell me about whatever sources you know.
This text is NOT a legal advice! I am not a lawyer. Maybe, for the time being, it is even impossible to write a short text about this topic that provides legal certainty. This is a complex topic that at certain points leads directly into “legal no-man’s-land”; to some degree, there is uncertainty even among experts. Still, there are at least some fundamentals that are safe to say.
Lars Zimmermann, Feb2014
O P E N S O U R C E H A R D W A R E L I C E N S E G U I D E V S 0 . 1
If you want to open source your hardware designs, there has to be a license included. Sharing documents and files and collaborating on them is the essence of Open Source Hardware. If you publish documents and files about your hardware or design so that other people can study them, learn from them, share them and develop them, you have to put those documents and files under a license that gives them permission to do so. With this license, you give other people the right to use your work in a way that would be impossible if there was not such a license.
The license has to be clearly and visibly linked to the documents and files it concerns. You can either include the license in the documents and files or you publish it on the website where they can be downloaded. In most licenses you can find concrete instructions on how to endorse the license and how to make the text of the license available to others. Information about this procedure usually can be found in the license texts themselves.
a. Open Source Hardware Licenses: Choosing a license
There are several different licenses you can use if you want to open source your hardware in the sense of the Open Source Hardware Definition and its Statement of Principles. The Open Source it Manual Vs. 1.1 includes a list of examples of such licenses (The licenses are classified as permissive and non-permissive. See explanation below.):
The licenses differ in the rights they allow and the conditions that need to be fulfilled to use those rights. Simply click on the links to see what those licenses exactly mean. The Creative Commons Licenses are very popular and user-friendly, and they include comprehensible short versions of the respective license text.
There is a good and clear Comparison of those licenses by iNMOJO
THESE LICENSES ARE BASED ON COPYRIGHT LAW!
For a better understanding what sort of protection the licenses listed above give and do not give you, note that almost all of them are based on copyright law. This is most important for the scope of the licences. The copyright law differs from the patent law in some crucial points.
The copyright law only comprises intellectual works such as texts or images. In most cases, software also falls under this law. This means that the copyright law only concerns those documents and files in which an open source hardware is described.
Every author of such a work is automatically the owner of its copyright. As opposed to patents, you do not need to apply for the copyright of your work. The only prerequisite is that your work has to reach a certain Threshold of originality, which in fact is quite low – generally speaking, a simple line drawing or a longer SMS fall under the copyright law.
The copyright gives the author of a work the exclusive right of use of this work. Anyone else who would like to use the work, e.g. for copying, sharing, remixing etc., needs to get the explicit consent of its author. If he does not have this permission, the use of the work is illegal. Licenses are a way to give this permission.
That is the reason why you need a license if you want to publish documents of Open Source Hardware. They make it legally possible for others to use your documents and files for their own and published work. The open communication and collaboration on Open Source Hardware needs licenses to ensure legal certainty.
But it is important to know that the purview of the copyright law ends where the object becomes three-dimensional. The hardware that is produced does not fall under copyright law. The copyright law only protects descriptions of hardware, i.e. documents and files, but not the hardware itself. The functions that are described are not protected by copyright, only the descriptions of these functions.
Here’s an example: If I write a book that describes an innovative sewing machine, then the text is protected by copyright – no one is allowed to reproduce or distribute the text without my permission. However, the sewing machine is not protected: Everyone is allowed to use the book as a basis for producing this sewing machine and to use and distribute the sewing machine in whatever way they want without getting back to me. In order to limit the production and distribution of my sewing machine, I would need a patent on the sewing machine. A patent gives me the same rights of disposal for three-dimensional objects and functionalities as the copyright law for texts and images.
But in contrast to the copyright law, you do not get a patent automatically. You have to apply for a patent which is a long, regimented and costly process (with a processing time of at least a year and a four- to six-digit amount in Euros that has to be paid).
In most cases, Open Source is incompatible with patenting, as the sense of a patent is to exclude third parties from the use of an invention. Open Source on the contrary wants to include other people, e.g. in order to innovate and to proceed together. At the same time, one of the possible advantages of Open Source Hardware would disappear: avoiding the enormous costs and complications implied in patenting.
So licenses based on copyright law only allow you to specify to others in which way they are allowed to use your documents and files, but not if or how they can produce, use and distribute the things that are described. New descriptions of the same idea using other words or illustrations also cannot be limited by copyright law.
Given these facts, you can see that licenses based on copyright law only give you limited protection. Their most important function is to allow others in a legal way to use your documents and files openly, creatively and constructively, to extend them and to “backpublish” their extensions, i.e. to openly share them. Licences are a necessary instrument for communicating openly and collaborating on Open Source Hardware.
In other words: Licenses based on copyright law only regulate the way in which other people are allowed to use the documents that you have published. And all of this only becomes effective if the others (1) publish documents themselves – i.e. decide to open source their hardware – and (2) want to use your documents and files as a basis for this publication. In order to be able to use your documents and files as a basis for their own publications and to communicate suggestions for improvements quickly and easily back to you, open licenses based on copyright law are indispensable for your documents.
Besides all this, open licences are also a good and important way to tell other people clearly what kind of spirit is behind the hardware you are working on and how you want others to deal with it.
(You can find more information on patents further below.)
b. Permissive & non-permissive (Copyleft)
Besides a lot of differences in detail, there is one important difference that allows us to categorize licences into two groups: permissive and non-permissive (also called “Copyleft”) licences.
Permissive licences are licences that generally only give few specifications concerning the use of a given work. For example, they allow others to use the licensed work as a basis or component of a new work that will not be published openly. For software, this would mean: I take an Open Source Software that has a permissive license, extend it and make a new programme of it. Afterwards, I do not publish the programme’s source code and exclude others from using this programme unless they pay for it. An example of a permissive license is the Creative Commons Attribution License. It allows any kind of further use and only imposes one condition: The owner of the original work has to be named in a way that he or she has determined.
Non-permissive licences are licences that relate certain conditions to the further use of a work. The most important condition is the so-called “Copyleft” condition. Copyleft wants to prevent new closed works that are based on the original work. Copyleft allows anyone the further use of the work, under the condition that all works that arise from this use are also openly published. For software, this would mean: I take a source code that has this license and integrate it into a new programme. Afterwards, I have to publish the new source code and have to give it a non-permissive license. An example of a non-permissive license is the Creative Commons-Attribution-ShareAlike License. ”ShareAlike” means “sharing under the same conditions”: “If you remix, transform, or build upon the material, you must distribute your contributions under the same or a similar license as the original..”
Non-permissive licenses are also called “viral licenses”. In a way, they want to enforce the propagation of openness. If you want to use free content, you have to give back free content.
Copyleft is said to be very important for the success of free software. From what I said further above about copyright law, you can see that the Copyleft of non-permissive licenses only applies to documents and files, but not to the hardware itself. You cannot issue a Copyleft for hardware in this way. In plain terms: Anyone can study an open invention, improve it and then keep his improvements in the object secret. He can even patent them. If you want to make a license based on Copyleft for hardware, you would have to patent the hardware first. Then you have similar options, such as the TAPR Open Hardware License or the Defensive Patent License (DPL). If Copyleft was that important for the success of free software, then maybe the lacking possibility to issue a Copyleft for hardware could be a cause for slowing down the development of Open Source Hardware. But the difference between copyright law and patent law, between the description of a thing and its realisation as a three-dimensional object, is the reason why there will not be a legal solution for a hardware Copyleft in the near- or mid-term. Open Source Hardware will probably have to make without a Copyleft.
So it is even more important to promote the culture of Open Source Hardware and to find other solutions/hacks for the problem of missing Copylefts and/or to pile the pressure on the legal system so that possible solutions may arise and will one day even be enforceable.
c. Non-Commercial & No-Derivatives
Among the different licences based on copyright law, there are some licences that include conditions such as “non-commercial” (i.e. “may not be used for commercial use”) or “no-derivatives” (i.e. “no derivatives, remixes, or further developments allowed”). Strictly speaking, these licences are not Open Source Hardware licenses. They are incompatible with the definition of Open Source Hardware and its Statement of Principles. The aim, promise, and technique of Open Source Hardware precisely is the mutual, creative development. “No-derivatives” seems to undermine this principle.
“Non-commercial” is not only an intervention into the free use of others. It’s also important to know that “non-commercial” cannot be exactly defined or limited in legal terms. Here’s an example: I show my friends at a party a non-commercial document. When they leave, they give me a small donation for food and drinks. In court, this might already be understood as a commercial use.
This License Guide does not want to exclude that “non-commercial” or “no-derivatives” may be of use in certain cases, maybe even for the openness of a certain object (even if this is not an openness in the sense of the OSHW definition). But what has to be clearly stressed is the fact that using such a license with these restrictions can be hugely problematic and even counterproductive.
d. Incompatibility of Licenses
One problem about licenses is that they cannot be combined with each other. This means that certain contents are not compatible with each other. However, the recombination of components that have not been associated as yet often makes for something new. In this case, the incompatibility of the licenses hinders innovation.
Let’s have a look at an example of incompatibility of licenses. We take two licenses from the Creative Commons license family: the Creative Commons Attribution License (CC-BY) and the Creative Commons Attribution-ShareAlike License (CC-BY-SA). A work that is under the CC-BY-SA license can integrate works or pieces of works that are under the CC-BY license. The permissive license CC-BY allows a work to be republished under different conditions. So adding the ShareAlike condition is not a problem. But if you have a bigger work that is under the CC-BY license, it cannot integrate pieces of works that have been published under a CC-BY-SA license. The Copyleft condition of the CC-BY-SA license stipulates that a further use is only allowed in works that are also under a CC-BY-SA or a similar license. If the license for the bigger work that is under CC-BY is not changed, it may not use CC-BY-SA works.
Generally speaking, the risk of incompatibility of a work with another work rises the more conditions the used license contains. Permissive licenses are incompatible with non-permissive licenses – at least in one direction.
This Open Source Hardware License Guide Vs 0.1 does not want to give any recommendations which license or type of license to prefer – permissive or non-permissive. Both types of license have their advantages and disadvantages, their advocates and contradictors. There are strong arguments for both types. The debate is in full swing. Anyone should participate by giving his or her own decision.
One last note: There is one license that is compatible with all the rest and which therefore gives you the most freedom. This is the CC0 License or Public Domain Dedication. It links almost no condition to the further use of the work.
Please find below some answers to some frequently asked questions.
e1. How can I prevent others to patent my work?
“What happens if someone else finds my published documents and patents the ideas that I describe, thereby excluding me and others from using them?”
This is a very frequently asked question. The Open Source Hardware Association says that they do not know of a single case where this happened.
If you want to patent an invention, you have to fulfil several conditions. One important thing is that the invention must not correspond to the “State of the Art” (e.g. in European patent law or in Australia) or “Prior Art” (e.g. in U.S. law). This means that is has to be new and must not yet be known to the public. In Europe this means for example: Once an invention has been published in a magazine or presented at a conference, it is not patentable anymore because it corresponds to the “State of the Art”. In U.S. law, there is a so-called “Grace Period” which allows applying for a patent 6 to 12 months after the first announcement of an invention. But I am not sure if this can be anyone else than the inventors themselves.
So the most efficient way to protect your work from being patented by others is publishing it in a clearly visible way. Put it on the Internet so it can be seen and shared by anyone. Then your work will be found whenever someone searches on the Internet and no patent application that other people attempt would have the chance to be approved.
Now you understand why the Open Source Hardware Association do not know of a single case where someone patented an Open Source Hardware invention by someone else. The risk would be too high. Patent applications are very expensive and it is very probable that a patent application of a work that is already published publicly on the Internet will not be approved. That would mean losing a lot of money.
The more prominently you publish your idea, e.g. by following the Open Source it Manual, the lesser the chance of someone else trying to patent your stuff.
e2. How do I protect myself from infringing on the property rights of others?
“What happens if I invent something in my studio, publish it and start using it commercially and then suddenly it comes to light that I have – without knowing it – reinvented an invention that someone else has made before me and that they even have patented? What if that person takes me to court? How can I be sure that this will not happen?”
The answer to this question is: You cannot! There is no absolute certainty.
This is the conclusion I have made from what I read and from discussions with lawyers concerning copyright law: “You are an entrepreneur, which means you always take a risk.”
However, you can try to minimize your risk by making a patent research. This can become very complicated and quite expensive, depending on how you do your research. And however far you carry your research, there is always a certain remaining risk. But as a general rule, you should at least do one patent research before you start with an important commercial use.
Hobbyists with smaller projects should keep in mind that the patent law explicitly targets the commercial use of inventions: “A patent is a commercial property right.” Just remember that “commercial” is a term that is sometimes difficult to define.
e3. Any more questions?
Do you have any other questions? Are there things that have not been explained? Please use the comment function to tell me about the questions you have.
The most important sources for this text were:
- Christian Siefkes (Keimform.org): „Copyleft für Hardware – ein kniffliges Problem.“
- OSHWA pen Hardware Legal Meetup NYU Nov. 11
- (WP) Urheberrecht (de & en)
- (WP) Patentrecht (de & en)
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OWi Open Source it Manual is not a solicitor’s office and does not offer any legal services. The distribution, display or linking of this page does not generate a relation of any kind, especially not a brief.