[Discuss] Request for Comments: Digital DIY: Legal Challenges & Solutions Practised Report

[Wouter Tebbens]

Philosophically I would be fully against any form of "intellectual
monopoly", but as you say, there'd be no copyleft without copyright (or
droit d'auteur). And this helps us agree on the rules that we operate on
in our community.

Regarding your statement on copyleft hardware, let me challenge you to
say that there are good reasons to work on copyleft hardware and that
the current legal systems do help us. Please read section 4.3
"Non-exclusive Public Licensing" in the report.

In sum, copyleft for hardware designs works like this:
1) hardware design files can easily be protected under copyright law,
considering that copyright law protects “pictorial, graphic and
sculptural works”, which include “two-dimensional and three-dimensional
works of fine, graphic, and applied art, photographs, prints and art
reproductions, maps, globes, charts, diagrams, models, and technical
drawings, including architectural plans”.

2) Considering the design files needed for digital fabrication, the
copyright holder has the exclusive right over the reproduction of the
work, and any derivatives made of it. This should be a sufficiently
strong basis for the open source licenses (Greenbaum 2013).

3) For determining the legal status of producing physical products based
on a freely licensed digital blueprint (e.g., a CAD file), three main
scenarios can be distinguished (Margoni 2013, p.240).

4) When there's dentity between the realised product and the digital
blueprint, which is typically the case for digital fabrication
processes, there is an act of reproduction.

5) When the intellectual creation as present in the original blueprint
is identifiable in the final result in a way that may constitute
copyright infringement, we deal with a derived work.

6) Based on the exclusive rights conveyed by the copyright system, the
original author can mandate a copyleft license and that should set the
rules for acts like 4) and 5).

Several legal scholars have agreed on this to be true. Looking forward
to your comments.

best,

Wouter



On 22-09-16 09:33, Matt Maier wrote:
> Yeah, copyright doesn't force people to do anything; worst case is it
> forbids people from doing things.
> 
> And it's weird to rail against copyright from a libre perspective
> because copyleft, the legal precedent that allows for free/libre in the
> first place, wouldn't exist without copyright.
> 
> It's the courts enforcing the terms of copyleft that gives free/libre
> power. If you want to get rid of copyright then you'll also lose copyleft.
> 
> That's the exact challenge we have in hardware! There isn't any
> copyright for hardware (functional objects) so we can't use copyleft to
> enforce hardware licenses.
> 
> The absence of copyleft makes a domain open source by default. It's only
> with copyleft that free/libre can exist. You have to have the ability to
> get a court to issue an injunction against someone that wants to use
> your free/libre stuff in violation of the terms that require sharing.
> Without the option of getting the courts to side with you there isn't
> any way to enforce free/libre.
> 
> On Wed, Sep 21, 2016 at 6:14 PM, Brennen Bearnes <bbearnes at gmail.com
> <mailto:bbearnes at gmail.com>> wrote:
> 
>     Various parties wrote:
> 
>     > > 2. Alert:
>     > > Please, please, please, do not call you 3.1. section
>     > > "copyright", please, oh please, let stop this, please really
>     > > please Wouter, not for a european paper, please please please
>     > > Wouter.  Please find an other term like "right of authorship",
>     > > or "right of intellectual property",
>     >
>     > NO.  the concept of "intelligence as property" is both fake,
>     > misleading, and utterly arrogant.  how DARE you claim that you can
>     > ENSLAVE ME through OWNERSHIP of the intelligence within MY mind
>     > that is my BIRTHRIGHT.
> 
>     It kind of seems like this rhetorical mode might not be doing us
>     any favors.
> 
>     -- bpb
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