[Discuss] hardware != patentability

[Matt Maier]

I have roughly the same goal of clarifying confusion. The thing that I keep
seeing, and I'm seeing again here, is conflating the different parts of
projects that do not have the same legal protections.

The "open source" part of OSHW lives and dies by how easy it is to discover
and participate, so it absolutely depends on digital files. These could be
contrasted against, say, paper designs or memories. But, ultimately, the
digital files are just a means to an end. In software projects the digital
thing is the point. In hardware projects, the tangible thing is the point.

So people often pirate software, because at the end of the day they just
want the digital thing, and people also pirate hardware, for the same
reason. The difference is that you can't pirate the software without
running afoul of legal controls because the source and the object are both
digital. But in hardware projects you can skip the source, and pirate the
object, without any legal problems, because the tangible object is not
protected by any relevant area of the law (technically patents, but they
are rare).

I think it's vitally important to separate the tangible and intangible when
discussing open source hardware, and particularly OSHW licenses.

As far as I know (could be missing something), we cannot write a license
that will actually allow a creator to take a pirate/cloner/infringer to
court and obtain injunctive relief to stop producing hardware.

That's the elephant in the room. The licenses for digital things have been
tested and found to provide legal recourse. The same cannot be said about
extending those same licenses to tangible things.

Based on my limited knowledge on the subject, it seems unlikely that the
courts would ever support the extenstion of software licenses to protect
physical things. The whole point of inventing patent law was to get
creators to explain their secrets to the public in return for a brief
monopoly. The open source community doesn't have to be bribed to explain
their secrets, because they don't have any.

There isn't actually any reason to worry about "infringing" an open source
hardware license by making your own hardware, because the license doesn't
protect the hardware. You only have to worry about upsetting the ethics of
the community and the creator. Physical items that serve a practical
purpose just are not protected.

To go a step farther, I would argue that trying to protect them is
misguided. Instead, we should focus on trying to outdo them. I like Nathan
& Sparkfun's approach to the situation: just come out with a newer, better
version as fast as possible.

By definition, an open source hardware developer only has one enemy:
litigation. They can only be threatened by a person or company that sues
them. Any copying of their hardware, any reselling of their hardware, any
improvements to their hardware, is what they agreed to embrace when they
labeled their work "open source." That's not a threat, that's a community.

That's why the OSHWA is so clear on discriminatory clauses like
non-commerical being outside of the open source umbrella. You don't get to
tell everyone how you built it, and ask for improvements, but also deny
anyone else the opportunity to participate in the marketplace.

Trying to bundle the digital and physical parts of a hardware project
together so as to, in effect, extend some sort copyright protection to the
hardware not only won't hold up in court, it violates the principles of
open source. Assuming a license which includes non-commercial isn't
actually open source, that means an open source license not only doesn't
prevent a cloner/pirate/infringer from distributing the original source
with their new retail copycat hardware, it actually encourages them to
distribute the original digital files. So no license prevents them from
doing whatever they want with the hardware, and a license which tried
wouldn't count as open source, and the existing open source software
licenses do the opposite of discourage distribution. The CC licenses are a
bit different, but that's because they are for things (art mostly) that
doesn't make any distinction between source and "compiled" object. In an
OSHW project the plans aren't artistic, they're "source code" and the
principles of FLOSS apply more than CC.

On Thu, May 22, 2014 at 1:30 PM, Jeffrey Warren <jeff at publiclab.org> wrote:

> Just trying to fork off this thread here (from this one:
> http://lists.oshwa.org/pipermail/discuss/2014-May/001083.html):
>
> But licensing efforts like the CERN OHL have used the copyright of the
> design files and the need to "distribute" those files as a kind of
> hack...If there is open source software, open source documentation, and
> open hardware licensed designs, then to some degree the value of the
> project is greater as these are all considered together, and it becomes
> less useful to circumvent the open hardware licensing if you can't
> circumvent the software and docs along with it.
>
>  just concerned that people reading on this list might make uninformed
> assumptions.
>
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