[Discuss] Publish OSHW with CC0?

Matt Maier blueback09 at gmail.com
Wed Nov 5 17:32:20 UTC 2014

Yeah, it seems like the only plausible legal hook for OSHW (at least in the
near future) is to organize active reviews of pending patents and then
gather up and submit prior art to block anyone trying to patent a
previously published OSHW design.

But, as we've said before, nobody's been able to point to any cases of the
community being damaged by the patenting of an OSHW design. It stands to
reason that the probability will increase as the community grows, but it's
not a problem yet.

Also, patent law is not as internationally homogenous as copyright law, so
any legal hook on patents would take a lot more work to clone in different

That being said, it could be argued that the state of patent law is
actually more inherently conductive to Open Source Hardware than copyright
law is to Open Source Software. The key thing that hardware law lacks is a
hook to enforce virality or "stickiness," but that's really only important
to Free/Libre stuff; it's less important to Open Source stuff.

"Open source hardware is hardware whose design is made publicly available
so that anyone can study, modify, distribute, make, and sell the design or
hardware based on that design. The hardware's source, the design from which
it is made, is available in the preferred format for making modifications
to it. Ideally, open source hardware uses readily-available components and
materials, standard processes, open infrastructure, unrestricted content,
and open-source design tools to maximize the ability of individuals to make
and use hardware. Open source hardware gives people the freedom to control
their technology while sharing knowledge and encouraging commerce through
the open exchange of designs"

"The design" is already well handled by existing licenses. "The hardware"
is already basically legally exempt. Since the creator has NO automatic
protection for the hardware they create (the opposite of copyright) they
CAN'T stop anyone from "studying, modifying, distributing, making and
selling" the hardware. The only way to obtain the legal right to interfere
with anyone doing any of those activities is to get a patent, which takes
years, costs tens of thousands of dollars, and only works in one country.
Oh, and it only applies to that one specific thing in the drawings. A
patent is useless if someone figures out another way to do the same thing,
or a dozen different ways, which is a core competency of the OSHW community.

Additionally, if someone wants to "enforce" virality, they can go a long
way towards doing that simply by designing their hardware to comply with
the OSHW definition. If they use only open source tools to design it, and
use only commodity components, and make it modular, etc then the hardware
will be perfectly suited to sharing and will require extensive redesign
before it's worth mass producing. Just look at the difference between the
3D printer Dremel choose https://3dprinter.dremel.com/3d-printer-benefits
and the Lulzbot Taz 4

Free/Libre hardware is the thing that is probably not possible, at least
not legally. Open Source hardware is already pretty strong simply because
it's so hard to get the legal right to restrict the hardware, and the
rights are so limited (at least compared to copyright).

One wrinkle that applies to a subset of the OSHW community is export
control. Since some technologies are deemed too dangerous to allow sharing,
they are automatically saddled with legal restrictions. So, in a sense, if
you create a technology which is export controlled, no citizen of another
country is allowed to do any of the things in the OSHW definition without
extra cost and paperwork, and not at all in the case of certain countries.
However, nothing changes for citizens of the same country; they can still
treat the hardware as Open Source among themselves.

On Wed, Nov 5, 2014 at 8:12 AM, alicia <amgibb at gmail.com> wrote:

> For what it's worth, we did have a discussion around this point involving
> lawyers from the EFF. The blog post of what was recommended that day lives
> here:
> http://www.oshwa.org/2013/12/05/open-hardware-legal-meetup-nyu-nov-11/
> It was very much centered around fitting within the legal system that
> already exists.
> What Andrew infers is true, they are willing to help remove a stupid
> patent, for example, but don't necessarily think on oshw legal matters for
> us.
> Alicia
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