Open Source hardware – does it work?

• Open Source hardware is the next step in the development of “open” licenses;
• A review of the most important OS hardware licenses show them to be a combination of known techniques, like creative commons, and “covenant not to sue” for patents or design rights;
• Their validity and enforceability seem somewhat weaker than the software Open Source licenses, mainly because, paradoxically, there is a fundamental freedom to copy hardware (unlike software);
• it makes sense for Open Source hardware licenses to focus on patents and design rights.
  

Open Source hardware is starting to be mentioned from time to time.

Unlike Open Source software, which is now well established, it is still relatively unknown.

One of the best-known examples of Open Source hardware is the Arduino board. The Arduino board is a single board microcontroller. It was once described to me as “the hardware core of a robot-brain”, which explains it well enough.

With an Arduino board, you can direct hardware. It can work e.g. as the on-board computer of a toy car, or it can connect your fridge to the Internet, or it can be the core of a private security system in your house. And you can very easily access it, program it, connect it to other machines, engines, etc, and make it do pretty much anything you want it to do.

That flexibility shows the way towards an important development, where a growing part of our hardware will convert into a combination of computer hardware and software. Hardware becomes “programmable”, if you want.

Expect Arduino boards to be found in a product or application near you soon. Since they are Open Source, it is very easy to integrate them into other technology, and the cost of technology (as with most Open Source) is relatively low. As an example, the new “desktop” open source 3D printers use Arduino boards.

So how enforceable is such Open Source hardware? Does it – legally – work?

For software, the question has been answered a number of times. In most countries, Open Source software and Creative Commons licenses have been held to be valid and enforceable.

To my knowledge, no similar decisions exist regarding Open Source hardware. (If you know of one, please comment below and provide a link).

But we can have a look at how current Open Source hardware is put together, and take that as a basis on how enforceable it would be.

When we look at Open Source hardware, a lot of it is actually not very “open source”. Not because it’s not Open, but because it’s not Source. Hardware is – still – not software. If you copy source code of software, you can reproduce it, theoretically, at zero variable cost. For hardware, you still need the actual material to assemble, 3D-print or otherwise manufacture it.

Moreover, the Open Source software system works, because the concept of sharing back changes you make to a software product under the same license is relatively easy, both technically and legally.

So how are Open Source hardware licenses structured, and would they work as well as Open Source software?

Open Source licenses work at three levels.

The first is the design of the hardware. Design documents on Open Source hardware are distributed, either under a Creative Commons license or an Open Source hardware license that has the same effect. That means that the design information is freely available, and that changes to that information must be distributed under the same license. We know that Creative Commons licenses are enforceable. That means that Open Source hardware, at the level of the design knowledge necessary to manufacture the hardware, is probably enforceable Open Source (with the interesting side effect that Creative Commons works more efficiently at protecting content or ideas by ensuring they stay within the Creative Commons, than actual Copyright is in shielding ideas from the public domain).

The second level is software. For Arduino, e.g., the software you need to make it actually work, is licensed under GPLv2.

Again, this is enforceable. So, to the extent software is necessary to operate the hardware (as will become more and more the case), the Open Source character of the hardware is, at least partly, ensured through the software necessary to operate the hardware.

The third level is the hardware itself.

To my knowledge, there are two main licenses known: the TAPR open hardware license and the CERN open hardware license.

The TAPR license specifically states that it is not a copyright license, but an agreement. It covers distribution of the documentation of the hardware, as well as the way in which hardware is built and distributed.

However, it excludes software from its field of application.

The TAPR license works, again, at several levels.

It gives a license to documentation, and obliges the licensee to copy the documentation and share changes under the same principle. This effectively repeats the creative commons approach to design.

It incorporates a duty to attach documentation to any product manufactured using the documentation, and imposes a covenant not to sue for patent infringement against licensees or licensors.

It is the last bit that seems truly new.

What the Open Source Hardware license does, is effectively prohibiting downstream users from enforcing any patents they would have on their improvements of the design or the product.

Is such condition enforceable?

First, we need to see if such license is actually necessary to copy the product itself. In my view, this is not the case. This has to do with the fact that ideas and design information are free to be copied, unless protected by registered design or patents.

What that means is that, anyone who sees a design or a product, is in principle free to reverse engineer or copy it. The fundamental freedom to copy applies.

This fundamental freedom does not apply to software – where any copy of the code is prohibited by the general and automatic copyright monopoly. However, no such automatic monopoly exists for designs or products.

So, therefore, the Open Source hardware license would limit its application to the extent there are patent or design rights in the product or a derivative thereof (as opposed against the Open Source software license, which applies for every copy of the software).

The question then arises whether a contractual undertaking as described in the Open Source hardware license (“covenant not to sue”) would be enforceable against someone obtaining a patent on an inventive step in developing a future version of Open Source hardware. This question is still open.

A second question arises whether the remedy set out in the license (“you lose the right to produce the product if you enforce a patent based on it”) actually makes sense. It may well not.

In a nutshell, the TAPR license seems less obviously enforceable than an Open Source software license, precisely because hardware is in general free to be copied, except if covered by patent or design rights (which are the exception), whereas for most software, the opposite is true (it is automatically covered by copyright). Only certain kinds of software (e.g. software where the expression merges with function, or software code that is not original, or created by a machine, and, in the EU, the code of interfaces) fall outside copyright.

The TAPR license also has a rather interesting reference to “emailing” information. I would have expected an innovative organization to recognize that email is not necessarily the obvious communication tool of the future.

The other Open Source hardware license is the CERN license.

The CERN license differs somewhat from the TAPR license, in two important aspects.

There are also clear similarities. There is a “creative commons” kind of license on the documentation, and a covenant not to sue for patents on new developments.

The most important differences are in the fact that the CERN license acknowledges more clearly the copyright nature of the documentation license, and also clearly mentions design rights (and not just patents).

Again, the question as to how enforceable the covenant not to sue is, remains open.

The essential question is this: if I use the documentation in order to manufacture and distribute the “Product”, and subsequently then modify or innovate, and register my innovation (either as patent or design), and then try to enforce such patent or design – what happens to the products I sold, and what happens to the products (with the new, registered modification)? Can I still manufacture and sell them?

And which remedies are available to the original licensor? Because that could well determine the success of Open Source hardware licenses.

Interesting questions ahead. But first, let’s wait and see if Open Source hardware really can become as successful as Open Source software.

[This post originally appeared at jorendewachter.com.]