[Discuss] hardware != patentability

[Javier Serrano]

Thank you Matt for your thought-provoking argumentation. I add some
complementary ideas for discussion below.

On 05/22/2014 10:54 PM, Matt Maier wrote:
> 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.

Licensing and trying to outpace your competitors are largely orthogonal.
You don't have to choose. You can try to be very good at what you do
*and* license your design files in a way that gives certain guarantees
to your licensees, e.g. that you will not sue them for patent infringement.

> 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.

Trying to make it easy for people to copy and modify your design files
is the number one reason why people should use a license. If you put a
design file out there without a license, by default, the copyright
belongs to you and all rights are reserved. I.e. people do *not* have
the right to copy, modify and distribute modified copies of that design
without your consent.

Once a designer wanting to share has understood the need for licensing
the design documents, there remains the task of picking a license that
suits his/her goals. I agree with Andrew in that none of the CC licenses
alone is fully adequate for OSHW insofar as they explicitly exclude the
grant of a patent license from their scope. This is not strictly at odds
with the OSHW definition, but leaves a door open to non-OSHW-like
behaviour on the part of the licensor, which is so easily shut with a
patent license clause, so I see no reason to use CC instead of
Solderpad, CERN or TAPR, all of which include a patent license clause.

Then, for people with a copyleft mindset, CC licenses fail to explore a
number of ways in which copyright on the design documents could affect
e.g. the probability that the end recipient of a product can have access
to the design files of that product [1]. This is normal because CC
licenses were not drafted with OSHW in mind.

The field of OSHW licensing is still in its infancy, but one should not
underestimate the amount of thinking that has already gone into it, and
the potential benefits that can arise for OSHW if we continue working on
legal tools to make sharing easier, safer and more fair. The three
licensing efforts I mentioned above can be used as a laboratory for good
ideas. None of them is cast in stone.

> 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. 

I don't know anybody who is trying to do what you describe. Regarding
the principles of open source, I guess everybody is entitled to their
own opinions, but fortunately there is an OSHW definition which gives
"open source" a very precise meaning in the context of hardware designs,
so it should be relatively easy to figure out if a given behaviour goes
against the principles of open source.

Cheers,

Javier

[1] See e.g.
http://lists.ohwr.org/sympa/arc/cernohl/2014-01/msg00003.html (you might
have to click on "I am not a spammer" and paste this URL again in your
browser after that)