[Discuss] New OSHWA post up - Legal Notes

Matt Maier blueback09 at gmail.com
Wed Dec 11 21:10:59 UTC 2013

On Wed, Dec 11, 2013 at 11:39 AM, yahya <yahya.tawil at gmail.com> wrote:

> P.S : I've get alot of benifits from commercial distribution of
> openhardware circuits in my local community because difficulties of
> importing goods in my situation , but also our local community still
> beginner in OSW and there are a lot of cloners that mustn't give the
> ability to clone freely because the have resources and money in contrast of
> open hardwarians in my local community WHO need to make also commercial
> benifits of there open design  .
This makes it sound like you like receiving the benefits of the "no
restrictions on selling" clause but you don't want to be bound to follow it

Are you suggesting some kind of size/resources distinction? Like,
individuals can have the leeway to release their work "non-commercial" but
businesses wouldn't?

One of the complications of extending software concepts/licenses to
hardware is that it costs money just to look at hardware (shipping). If
someone wants to do any kind of development work at all they have to start
spending money right away, and the costs only increase as they begin
to support a community. Open source hardware developers don't just need to
be compensated eventually, they usually need to be compensated ahead of
time so that they can afford the costs of building something in the first
place (preorders).

Thus, the argument that open source hardware requires commercial activity,
so it can't be called open source (according to the definition) if it
doesn't allow commercial activity.

I've seen this argument come up a lot, and the more I see it the more I
personally support the "no restrictions on selling" clause. Mostly because
I have yet to see any examples of a developer actually being harmed by a

I think the biggest reason is that most developers just aren't going to go
into business at all. They might organize group-buys, and they might keep a
supply of hard-to-find components, and they might be compensated for some
of their work, but it's all just to defray the cost of their hobby. Most of
them don't want the responsibility of customers and warranties and supply
chains. If their hardware actually is good enough, and stable enough, to
attract cloners then the cloners are doing the community a favor by taking
on work that the developer wouldn't have done (running a business cuts into
hacking time).

If someone wants to go into business designing/selling hardware then
whether or not it's "open source" is not nearly as relevant as whether or
not they can run a successful business. Competitors copying their products
is only one of a ton of things working against them. Cloners don't care
about IP law, particularly in hardware, where IP law doesn't matter as
much. Cloners are constantly cloning the products from major corporations,
so there's no way they're ever going to care about a "non-commercial"
clause that some random developer added to their license.

My suggestion, for what it's worth, is that you think of open source
hardware development primarily as a hobby. If someone wants to build a
business around it, then first and foremost they are building a business,
and that businesse's stand on IP is at best a secondary concern.

An example of this distinction in the wild is how Makerbot switched from
open source to closed source when they committed to actually building a
successful business out of their full-time hobby. Another example is that
nearly everyone who announces that they're going to build open source
hardware promises to release the source only after they begin shipping.
Basically, before the thing actually exists and is functional the IP rules
attached to it don't matter, at least not if you're running a business.

That being said, I don't yet have harder data on the practical implications
of this clause. It's something that I'm working on collecting.

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