Open Source Hardware and the Law

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Last month I attended the third Open Hardware Summit in New York City.  With the growth of the community and the emergence of products that target people beyond core open source hardware enthusiasts, there was a great deal of discussion about what it really means to be open source hardware and also how to be both open source and competitive in the hardware world.  This post expands upon something that I only had time to briefly touch upon during my presentation.

At the end of my talk at last month's Open Hardware Summit, I urged the community to consider that open source hardware may be more of a political and cultural movement than a legal movement.  This was an admittedly fleeting reference to a discussion that will necessarily be a large one, so I want to use this blog post to begin to expand upon what I meant.  The goal of this explanation is not to provide answers – largely because the answers are not mine to provide, and even if they were I do not have them – but rather to attempt to bring a useful framework to the discussion.

Legal Underpinnings of Open Source Software

Let me first lay out some of the critical elements of the open source software (OSS) movement, which is often pointed to as a model for the open source hardware (OSHW) movement.  While OSS is undeniably a cultural and political movement, it is also a movement firmly grounded in the law.  Specifically, OSS takes a legal regime that can restrict sharing (copyright) and use it to promote sharing.  It accomplishes this through a legally binding license on the code.

Critically, this slight of hand works because code is protected by copyright.  More importantly, code is automatically protected by copyright.  The coder does not need to apply or register in order to obtain copyright protection on the code (although there are good reasons to register a copyright) – the mere act of writing the code means that it is protected by copyright. That copyright gives people something to license and a legal way to enforce that license.

As one of last month's speakers (I believe Andrew Katz, but if someone remembers differently I'll update this) helpfully explained, a license allows you do to something that you could not do anyway.  Code is protected by copyright.  Absent anything else, copying that code is a violation of copyright.  A license gives you permission, subject to certain conditions, to make a copy of that code.  Because the code is protected by copyright and licensed under conditions, copying the code in a way that violates those conditions is copyright infringement.  If someone infringes on your copyright, you can take them to court.

This legal enforceability allows the OSS community to impose its own internal rules on people outside of the community.  Social shaming and recognition of achievement is probably enough to make sure everyone in the OSS community plays by the rules, but they are less effective for people who want to use the code but do not care about the community's opinion.  Since OSS is useful and usable for people outside of the OSS community, this legal enforceability is critical to protecting the ethos of OSS as it comes into contact with the wider world. 

(Of course, it is possible to engage in profitable, creative industries without this sort of legal protection.  The fashion industry is a great example.  For an exploration of these industries check out Kal Raustiala and Christopher Sprigman's new book The Knockoff Economy.)

Legal Underpinnings of Open Source Hardware

Hardware is different from software in many ways, but one of those ways is how it is, and isn't, protected by intellectual property.  As a general matter, copyright does not protect functional objects – objects that do things.  Copyright may protect decorative elements, or specific patterns on a circuit board, but by and large most OSHW projects and products (especially as you move away from embedded electronics) are things that do something, and thus not eligible for copyright protection.  As a result, it is all but inevitable that critical elements of an OSHW product are not protected by copyright.

That does not mean that there is no protection for OSHW.  Trademarks can be protected.  However, trademarks cannot protect the functional elements of the product either.

This leaves patents.  For the purposes of this discussion, patents differ from copyright in a few critical ways.  First, you must affirmatively apply for a patent – they do not exist simply by creating an object.  Second, there is a burden to show utility, novelty, and nonobviousness.  Third, and this may be the most important, actually getting a patent is an expensive and time-intensive process.

This combination – copyright that does not protect function, trademark that needs to be applied for and does not protect function, and patents that need to be applied for and can protect functions – means that most hardware projects are “open” by default because their core functionality is not protected by any sort of intellectual property right.  Of course, in this case “open” means that their key functionality can be copied without legal repercussion, not that the schematics have been posted online or that it is easy to discover how they work (critical elements of open source hardware).

Licensing Open Source Hardware

This difference has a critical impact on licensing open source hardware.  There is nothing preventing an inventor from applying an open source hardware license to her creation.  However, for that license to be legally meaningful, she must have a right that she is actually licensing to users.  In the absence of a patent on the project, it is unlikely that she will actually be licensing anything critical to someone who wants to reproduce or build upon the creation.

This only matters if someone violates the license.  As described above, if someone copies OSS and refuses to comply with the terms of the license, that person is a copyright infringer and can expect to be brought to court.  In contrast, if someone copies OSHW and refuses to comply with the terms of the license, that person will probably be in the clear.  Since (again, in most cases) there was no intellectual property protecting the functionality of the product, there is no intellectual property right being infringed in the violation of the license.

One response to this – to try to patent every OSHW project – is simply impractical.  Even if we assume, simply for the sake of argument, that every OSHW project could meet the utility, novelty, and nonobviousness requirements of patent (something that is highly unlikely), it is unreasonable to expect every OSHW project to pay the thousands of dollars it costs to shepherd an application through the process simply to be able to turn it over to the community.

Another – to make it easier to patent OSHW projects – strikes me as ill conceived.  No matter how good the intentions, creating additional intellectual property rights or making it easier to obtain intellectual property protections rarely advance to cause of openness.  It is almost inevitable that any such process would quickly be used and abused by people outside of the OSHW community in ways that the OSHW community would live to regret. 

Where does this leave us?

First, to be clear, none of this means that OSHW is doomed or a worthless endeavor or unable to scale.  It simply means that its expansion will require critical, creative thinking.  Moreover, open source hardware is more than a license.  It is a commitment to building products that people can access, repair, and improve, and to building documentation that facilitates these goals.  Nothing about the legal status of an open source hardware license changes that.  Additionally, nothing about the legal status of an open source hardware license prevents an organization (say, the Open Source Hardware Association) from creating a certification logo, protected by trademark, that companies that comply with open source hardware principles can affix to their products.

I believe that companies coming out of the OSHW community truly do have a desire to be open.  I also believe that they are honestly trying to find ways to compete in a broad marketplace made up of people who do not care about openness and competitors uninterested in playing by “the rules.”

The result is that they are trying to thread the needle, maintaining as much openness as possible while not making it easy for competitors to simply clone them.  Right now that path is far from clear.  Inevitably, there will be missteps along the way.  It is also possible that some “open” companies abandon their commitment and simply betray the community.

The challenge is to learn to distinguish a misstep from a betrayal while recognizing that most choices do not have straightforward right or wrong answers.  OSHW is not OSS.  The “right” license can have tremendous value as a signaling device, as a public commitment, and as a way to raise the profile of openness.  However, in many cases, the “right” license will be meaningless from a legal standpoint.  To me, the challenge of the next year of OSHW is to find a way to scale beyond the core OSHW community, maintain a meaningful commitment to openness (whatever that ultimately means), while all the while recognizing that the license itself is largely symbolic.

I am not going to pretend that is easy, or that I even have an idea of how to accomplish it.  At this point, all I really hope is that everyone is coming to this discussion with a realistic understanding of its terms.

 

Want to learn more about open source hardware?  In addition to the Open Source Hardware Association and the Open Hardware Summit, earlier this year Public Knowledge held OH/DC: Open Source Hardware Comes to DC - check out audio and video here.

 

Image: Catarina Mota.

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