Open Hardware is a legal fiction. There, I said it. This was the single most bitter lesson I learned in the six years of working on this project.
I used to strongly advocate for the production of Open Hardware licensed stuff, hoping to create a hardware world similar to the GPL’d world of software. The idea is that you need a layer of Open Hardware, on which rests a layer of Open Software, which you use to create a world of Open Content. Sounds good, right? I thought it did:
Here’s the problem in a nutshell. It’s a copyright-based license trying to do the work of patents and trademarks, so it has no bearing on hardware whatsoever. Other people can just copy AND THEN PATENT your work, and then they’ll own it*. Organizations you don’t like can copy your stuff and use it to do things you don’t agree with**. And trademarking is impossible if your work becomes widely used or your choice of project name is too generic.
Although some creative people I know and care about have written it more completely (see below), I no longer believe that the existing “Open Hardware” license solves the problem faced by people making things like this scanner (it’s possible that it will work better or have higher utility for circuit boards and other things that are completely machine-manufacturable) It’s a toothless license- a social contract that basically says “Don’t be an asshole”. My experience is that people will do whatever they want (and that’s how it should be), so if you care about openness, you should make your work Public Domain. That’s what I’m doing with this scanner. The design is moving from Open Hardware to Public Domain. For countries without a concept of the public domain, well, figure it out. You have my permission.
The other fiction of Open Hardware is that you can easily learn from just the design files. Most of the time, the design files are insufficient to understand the design intent of the creator. To truly be open, you have to explain yourself, and design files don’t do that very well at all. That, in fact, is why I created this giant site with history, design explanation, and page after page of text. Of course, any design file is better than none at all. But if it was created in Solidworks, and you can’t open it, and don’t have 10KUSD to spare, it doesn’t mean anything do you.
Below is the text, direct from the OSHWA, which says that Open Hardware doesn’t have a legal hook to hang on. I’m proud of them for trying, but I won’t default to an “open license” until the legal situation changes.
A. Problems with Open Software Licenses in a Hardware Context
The current open hardware licenses are based on the quid pro quo of copyright, but this in an imperfect solution. Unlike software, most hardware devices will not be protected by copyright. This means that copying the hardware without permission will not violate copyright, making a copyright-based license irrelevant. In order to be enforceable, hardware licenses need a stronger legal “hook”, or reason to create permissible copies or build upon the device. The big question to answer is where this hook will come from as people in the oshw community do not depend on patents.
B. We’re working on it : some options and resources
1. The open hardware definition: by way of using the oshw logo, entitles you to agreeing with the open hardware definition, which is a communal standard, or social contract. This is not a contract you need to sign, but is in place by the oshw community which would be considered if you ever had to go to court for prior art, infringement, etc.
2. An Open hardware license, such as TAPR, CERN OHL, or Solderpad licenses: These are licenses adapted from open software licenses to apply to hardware. We are cautioned to consider what these licenses are hooked on, which in some cases may be copyright (and the open equivalents to copyright).
3. The OHANDA trademark: This is a trademark to use if you agree to the 4 freedoms listed on OHANDA’s website. The oshw definition used these 4 freedoms when writing the definition, but flushed out further considerations for what open source hardware is defined by.
4. A Defensive Patent License : A DFL is a group of patents that is a pool of shared resources – you agree not to use your patent to sue unless you get sued first. The license is perpetual, irrevocable and royalty-free, as long as you are part of the IP pool.
5. Patent a standard: The opportunity may arise in oshw to be the first to discover a standard (think USB) and could patent the standard, then grant it to the public openly (or with restriction). However, standards are set so you don’t fork all over the place, and this is not really how open source works.
6. Crowdsource the top 10 prior art innovations to send those to the USPTO: If you take the time to find and craft the prior art argument for the USPTO examiner, the examiner will have more incentive to do the right thing. There is risk that the patent will be granted anyway and invalidate the prior art completely. Crowdsourcing (some resources below) may be a great way to do this.
*Of course, someone will say “But you just have to show that you made it!” or “You just have to find prior art”. Sure, you know who you’ll have to prove that to? The courts. Going to court is expensive and dangerous, and everyone knows it. That’s how people are able to screw you out of your own stuff – taking you to court on a frivolous charge, or even a threatening lawyer letter can be expensive enough to shut you down. The system is stacked against you because you explicitly give them permission to use your design but garner no protection for yourself.
**This is a risk with any open license.