[Discuss] licensing with some exclusivity in hardware

[Dr. Peter Troxler]

Hi all

Here is my take on the issue(s):

In most cases a license is not so much a legal instrument as an act of communication--and that's what I would advise to highlight in the EC commissioned research (happy to discuss in depth).

I assume that most designers don't have the means to monitor and enforce the use of their designs according to the license (the classic "they have the gun but not the bullets" story)--and I am unaware of any case where such restrictions have been tested in court.

/ Peter

> On 29 Jun 2016, at 13:07, Wouter Tebbens <wouter at freeknowledge.eu> wrote:
> 
> 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
> --
> Digital DIY - http://www.didiy.eu/
> IoT - http://thethingsnetwork.org/
> ProCommons - http://procomuns.net/
> _______________________________________________
> discuss mailing list
> discuss at lists.oshwa.org
> http://lists.oshwa.org/listinfo/discuss