[Discuss] Legal Meetup Nov. 11th in NYC

Matt Maier blueback09 at gmail.com
Thu Oct 24 18:29:52 UTC 2013

On Thu, Oct 24, 2013 at 10:17 AM, Marketply <contact at marketply.org> wrote:

> **
>   Alicia,
> Think about charging from a different angle.
> If we don't, then it's free for certain people to muddy the image of open
> source hardware. Free to weaken the movement. Free to make businesses
> uncertain about participating.

The image of open source is already muddy, let alone the image of open
source hardware in particular, which barely qualifies as having enough
awareness to have an image.

As for "weakening the movement," open source is inherently anarchistic.
Applying top-town control contradicts the principles of open source.

And businesses are always going to be uncertain about participating in
anything. That's just what happens when your own money is on the line.

> Forget patents, a license for trademark to certify goods is much easier,
> especially if certifying is a simple matter of people in the OSHWA
> community sponsoring you.
> This system creates three kinds of incentives for genuine open hardware.
> Both sponsors and the people applying stand to lose credibility for a wrong
> certification. There is a penalty and loss of certification for the
> hardware. And the process is 100% transparent. You're motivated to uphold
> best practices in the scrutiny of fellow open hardware enthusiasts who have
> a strong ethos.

I think you're presupposing that enough open hardware enthusiasts actually
do have a strong (shared) ethos. That would make sense with regards to free
software, which is unambiguously based on a moral position (lowest cost is
good), or capitalism, which is also unambiguously based on a moral position
(highest cost is good). But open source specifically emerged as a
compromise between libre and business. In open source the moral position
takes a second place to the pragmatic goal of maximum utility. I think the
majority of open source developers participate because it's an approach
that is more useful to them.

Open source is focused on finding the best solution to any given problem,
not on finding the most moral solution (it's easy to confuse "best" with
"righteous"). So if you involve some kind of mob-like "vouching" mechanic
it's just going to be treated like any other problem to solve.

> I'm already going that route. We trademark ' freedware<https://twitter.com/freedware>'
> and will allow people to use it on truly open source and freed goods.

Thus making the "no true scotsman" argument a central function of the
community and distracting from the original purpose of solving problems. Do
we really need everyone constantly measuring each other against some
arbitrary standards of "truly" open?

Open source already has a big enough problem with project fragmentation.
People disagree about impersonal things like what language to program in or
whether to use metric. Do we really want to encourage them to disagree
about personal things like who is "true" to some standard?

>    The fee is perpetually waived except it kicks in for misuse of
> trademark on any goods that are found closed, at which point the license
> terminates after applying the fee.

Why would anyone pay to have their license removed? If they thought it was
valuable enough to obtain in the first place then removing it would be a
cost, so they have to pay a fee to incure a new cost? And all of this would
only be enforceable in court anyway, so the organization that is supposed
to be encouraging more participation in open source would be suing
people/businesses associated with open source.

And all it would take to get around the problem would be to introduce a few
new open source certifications, or for each company to just make the claim
with their own stupid little logo. And since fragmentation is already an
inherent part of open source, the natural method of "organizing" open
source would lead to the dilution and irrelevance of any attempt to certify
what is "truly" open source.

>    The community decides if the goods violated the spirit of open source.
> Simple as that. And we don't chase after anyone to pay the fee, the
> incentives are strong enough that most people who stray will pay up and
> clean up their act.

What incentives? The two most powerful incentives for individuals to
participate in open source are self-respect and community-respect. And
businesses only do it because it makes them money.

If you want an example of how little relevance community outrage has just
look at Makerbot. When Makerbot went closed-source that was one of the most
vocal uprisings I've seen in this young community and it had precisely zero
effect on Makerbot. Thingivierse is busier than ever and the company is
introducing new products and expanding their size and number of locations.

Again, open source is about solving problems; it's utilitarian. Indivduals
do it because the challenge is rewarding and sometimes because they want
respect for solving hard problems. Businesses do it because it gives them
some kind of competitive advantage (same reason they do everything). Why
would the community as a whole spend their time policing businesses when
that doesn't advance their goals? Why do you think people still show up to
open source conferences and give their briefing using a Macbook and
Microsoft Powerpoint? I assert it's because they're concerned about what
works, not about making a principled stand.

>   You can wait to see how it works out for us before trying it out, of
> course. It'll be an honor to have you as 'competition'. Which in any case
> is good for everyone!

For what it's worth, I personally think that any open source organization
would provide the most benefit by enabling more participation, no matter
what form that participation takes. Allowing other people to do what they
will is the most important enabling principle of open source.

An OSHW organization shouldn't become a gatekeeper standing between those
who "belong" and who "don't belong." It shouldn't become a cudgle for one
business to beat on another business.

Instead it should build expertise in the areas that all open hardware
developers have in common, but that are better performed by an organization
than an individual. Legal research is a great example of something that all
OSHW developers are affected by, but that they don't each individually have
the resources to do on their own. Providing OSHW-specific information on
complex topics is valuable to all developers everywhere and lowers barriers
to entry instead of raising them.

> Matt,
> The fee is accompanied by a loss of certification. We don't charge a fee
> for them to be falsely certified as open.
> Rest assured, friend, that a lot of thought has been put into this! We
> welcome input, however. Open door policy.
> 😃,
> Marino Hernandez
> (just a founder of Marketply <http://www.marketply.org/>)
> 203-429-4205
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