[Discuss] New OSHWA post up - Legal Notes

Thu Dec 12 00:28:25 UTC 2013

Hi Yahia,

If I understood it correctly, your question is: why can something licensed
NC be considered open source software and not open source hardware? Well,
the short answer is that the open source software definition does not
recognize NC licenses either. The OSHW definition was modeled after the OSS
definition and they contain the same basic rights and restrictions.

The Open Source Definition (see article 1):
http://opensource.org/osd-annotated

And here's a comment by Eric Raymond about NC clauses:

   1. ERIC S. RAYMOND <http://www.catb.org/~esr/gpsd-scan.tgz> says:
   September 7, 2012 at 4:29
am<http://creativecommons.org/weblog/entry/33874#comment-372240>

   I speak as founder and President Emeritus of the Open Source Initiative.
   The NC option in Creative Commons has always been a bad idea and should be
   removed.

   The reasons it should be removed have nothing to do with any of the deep
   philosophico/political positions usually argued in the debate, and
   everything to do with the fact that there is no bright-line legal test for
   “commercial activity”. This ill-definedness is reflected in community
   debates about whether commercial means “cash transactions” or “for profit”,
   and it is the exact reason *the Open Source Definition forbids
   open-source software licenses from having such restrictions.*

   The founding board of OSI, after studying the possibility, judged that
   an “NC” option in open-source licensing would create too much confusion
   about rights and restrictions, too many chilling effects on behaviors we
   did not want to discourage, and too many openings for vexatious litigation.
   What is only a source of contention within our community could prove very
   damaging to it if unsympathetic courts were to make even mildly adverse
   rulings.

   I have seem no reason to change that judgment, and I think it applies
   with equal force to Creative Commons. The NC option is a dangerous trap and
   should be removed.

Cheers,
Catarina

On Wed, Dec 11, 2013 at 6:12 PM, yahya <yahya.tawil at gmail.com> wrote:

> "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
> yourself."
>
> That isn't true I contribute to open hardware community check my REPOs on github
> <https://github.com/yahyatawil?tab=repositories>
> *maybe I must explain more this point :* what I mean that although there
> are situations that we can benefit form open hardware in commercial use
> (redistribution) ,there are another situations :  (ex) I'm facing problem
> in making my designs allow commercial use because of cloners in my
> developing country , and I already have business on a local re-designed
> copy of arduino ! but I can't open It for cloners in my country they have
> efforts and money so if I made my design open under OSW definitions cloners
> would win easily .
>
> So I suggest to make editions of OSH (commercial and non-commercial ) and
> let us make the designer defines which is suitable for *HIM not US .*
>
>
> "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."
> If we said that , that will be disaster . How could we advocate OSW as an
> ecosystem and a economic alternative system and then we say is just a hobby
> !
>
>
> with all respect
> Yahya
>
>
>  On Wed, Dec 11, 2013 at 11:10 PM, Matt Maier <blueback09 at gmail.com>wrote:
>
>>
>>
>> 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
>> yourself.
>>
>> 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
>> cloner.
>>
>> 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.
>>
>> Cheers,
>> Matt
>>
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>>
>
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