[Discuss] licensing with some exclusivity in hardware

[Wouter Tebbens]

Dear OSHW community,

for an EC commissioned research, as well as for some makers interested
in open, but not completely free licensing I'm exploring the following
cases.

1) How effective is the Creative Commons "NC" clause in designs on the
restriction of commercial activity with the hardware build with those
designs? Take the case of the Ultimaker 3D printer: they claim to be
"open source", [1], but their designs are under the CC BY-NC-SA license,
[2]. Now I'm not bringing this up for discussing whether using the "open
source" term is appropriate, but to check whether the Non-Commercial
clause over the design has any relevant effect on commercial activity
over machines built based on that design.

It is clear that the copyright applies to the design and can be uphold
in court, but it is less clear that that same copyright conditions the
use of the physical objects made ussing that design. In fact, this is
one of the reasons why we are developing the OSHW certification program,
which uses trademark protection to condition its use on physical
products. Please correct me if I'm wrong.

If this is true, the exclusive right of Commercial usage that the
Ultimake company reserves for themselves is not really that useful to
protect their printer business. Although it might scare off potential
competitors (interested to offer the same or a derived product), as
things are probably less clear in court, and the documentation is still
important, even to such competitor. In a sense the NC clause makes it
more costly to build a derived product, and the original authors
apparently are not really interested in that option. (as mentioned,
trademark law might be another strategy to combine true open source
hardware & reserve the use of the brand, which IMHO would be more
compatible with a community ecosystem vision).

2) Every now and then I have discussions with designers, inventors and
other makers about their willingness to share their documentation under
a free license, but they are afraid of big corporations profiting from
their work. Indeed that is what Google and Facebook do with the
GNU/Linux operating system on their server park. It happens everywhere
and maybe some of us worry about it, while others don't care: this is
part of the freedoms, that we don't distinguish about the *purpose of
use*. If we do go this way, things get non-free and complicated.

I remember the first time I met Dimitry Kleiner was in 2009, when he was
proposing a preliminary version of a CopyFair license, which he called
the CopyFarLeft license, [3]. Such license conditions commercial on a
few social factors: whether a company is worker-owned or whether it's
profit-driven or not. Michel Bauwens and the P2P Foundation have since
been dedicating more and more attention to this, see CopyFair license,
[4] and the Peer Production License, [5].

Recently we have a few real cases that use this kind of licenses, e.g.
works translated by Guerrilla Translations, [6], are under the Peer
Production License.

But applying these kind of licenses on hardware designs brings us back
to similar issues as brought up under 1). Are such restrictions really
effective when some party decides to producte a product based on the design?

Looking forward to your reflections and further references.

best regards,

Wouter


references:

[1] https://ultimaker.com/en/about-ultimaker

[2] https://www.youmagine.com/designs/ultimaker-2-source-files

[3] https://wiki.p2pfoundation.net/Copyfarleft

[4] https://wiki.p2pfoundation.net/CopyFair_License

[5] https://wiki.p2pfoundation.net/Peer_Production_License

[6] http://www.guerrillatranslation.org/




-- 
best regards,

Wouter Tebbens
--
FKI - http://freeknowledge.eu
Unlocking the Knowledge Society
--
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IoT - http://thethingsnetwork.org/
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