[Discuss] interview with Bruce Perens

Javier Serrano Javier.Serrano at cern.ch
Fri Jun 13 09:25:41 UTC 2014

On 06/12/2014 11:33 PM, Matt Maier wrote:

> It turns out that we have a group of people at CERN, and one of my
> favorite lawyers and Yahoo, and even me, trying to add restrictions to
> something that is, for the most part, already in the public domain. And
> it came to me that this was backwards, and that we could be working
> against our own interest that way.

When Bruce writes, I always read carefully. I have learned a lot from
him. In the copyleft mindset of those working on CERN OHL development,
restrictions are introduced only (hopefully) insofar as they are needed
to ensure that some other (worse) restrictions are not imposed on
recipients of the designs. Quoting from the GPL text: "To protect your
rights, we need to prevent others from denying you these rights or
asking you to surrender the rights. Therefore, you have certain
responsibilities if you distribute copies of the software, or if you
modify it: responsibilities to respect the freedom of others." Of
course, there is a very legitimate non-copyleft mindset too. People can
choose to use a non-copyleft license in that case. And putting things in
the public domain (which you need to do explicitly since most documents
are copyrighted by default) might be the best option for some. I think
it's good that people with different sensibilities have legal tools to
accomplish what they want.

> We all get to use the vast body of electronic designs that we've read
> about in magazines since the dawn of ham radio. Now, imagine if those
> were suddenly copyrighted and under enforceable licenses.

In my understanding, the circuit diagrams on magazines *are* copyrighted
insofar as they contain a non-negligible creative component, which is
usually the reason why they are published to begin with. You can of
course take an idea from them and do your own thing. That does not
infringe copyright. And you can do exactly the same from a diagram
licensed under Solderpad, CERN OHL or TAPR OHL. I would actually feel
safer in these latter cases because then I'd know that the creator of
the diagram has promised not to sue me with any patents (s)he might
possess related to the design in question.

> The problem is that when we start licensing things that are actually in
> the public domain, we create norms that the courts take seriously. And
> they start enforcing licenses on things that could not be licensed
> before. We really can write new law when what we do gets to a court
> case, and we want to be careful what law that is. If we were responsible
> for taking hardware designs from public domain to copyrighted status,
> we'd be shooting ourselves in the foot.

This is very troubling indeed. I initially had this very naive view that
relevant laws are pre-existent to any license you write and that there
is no way licenses can create new law. When Bruce (and Andrew Katz and
Carlo Piana if I remember well) mentioned this on the CERN OHL mailing
list, I found it very worrying. So yes, I completely agree we need to be
careful. In particular when we explore ways in which copyright could
help us achieve things we could not enforce in the past. One example is
our effort to maximize the chances that someone receiving a piece of
hardware can find the design documents for it. This is based on Eli
Greenbaum's idea of embedding a URL in the object itself, and the
assumption that taking that URL off the design documents would infringe
copyright. It is new territory, and there is indeed a risk that we end
up contributing to somebody else's effort to extend the reach of
copyright. In this particular case, I don't think we are pushing for
anything that copyright did not cover already, but you never know 100%.
So it's good to do this in public and take constructive criticism from
Bruce and others. I think OSHW licensing is still in a
laboratory-of-ideas phase.

> So, for a while I was uncomfortable with my own Open Hardware
> evangelism. Was I doing the right thing? I think I've worked out the
> right path now and will be warning the community about this issue.

I look forward to more concrete thoughts on the type of new restrictions
and risks he is thinking about. I can kind of see the point but it's a
bit abstract so far.

Thanks for the very interesting read. Cheers,


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