Overview from http://www.ladyada.net/library/openhardware/license.html

Examples

Chumby Developers Agreement for the Chumby
TAPR Open Hardware License, a legal framework for Open Hardware projects

Discussion

Introduction by Christian Siefkes

For links, see the web version: [1]

It’s probably safe to say that the copyleft principle has been essential for the success of free software. Copyleft means that all versions of a software or document will remain free, preventing companies from creating “value-added” versions of free programs and selling them as proprietary, non-free software. The GNU General Public License (GPL)—the first and most well-known incorporation of the copyleft principle—is used for about 50–70% of all free programs, making it more popular than all other free software licenses together.

At first sight, the situation in the newly emerging field of free and open hardware might seem similar—here, copyleft licenses such as the GPL and the Creative Commons Attribution-ShareAlike License (BY-SA) are very popular too (see below for a more detailed analysis). But actually, the situation is very different for hardware design, since copyleft relies on copyright, and hardware is (in most cases) not protected by copyright law.

The Problem: Copyleft Depends on Copyright

In hardware design, the copyleft clauses of the GPL and the CC BY-SA license thus don’t work in the way you might expect them to work. Anybody who modifies and spreads the design description is bound by them, but people and companies using the design to build and distribute actual hardware are not. Vendors can modify the hardware and sell or distribute the modified hardware without having to publish their modified design, since licenses only govern the design descriptions (the instructions on how to build the hardware), not the hardware itself. Here’s how the FSF puts it in their GPL FAQ:

Can I use the GPL to license hardware?

  Any material that can be copyrighted can be licensed under the GPL.
  GPLv3 can also be used to license materials covered by other
  copyright-like laws, such as semiconductor masks. So, as an example,
  you can release a drawing of a hardware design under the GPL. However,
  if someone used that information to create physical hardware, they
  would have no license obligations when distributing or selling that
  device: it falls outside the scope of copyright and thus the GPL
  itself.

The problem is that copyright governs only the distribution of information, but not its usage. If somebody has access to information, they can use them and act upon them in any way they like without violating copyright law.

If a bookseller publishes a book describing how to build a product X, the bookseller cannot prevent me from using this information to build and sell X. The book is protected by copyright laws, but the factual information contained in it is not, and my use of that factual information falls outside of copyright laws. The GPL relaxes the restrictions of copyright, giving me more freedom to use copyrighted information than I would usually have, but of course it cannot deny me the freedoms which I always have, even with full copyright in force.

A Solution: Patents?

I know of only one license that is specifically targeted at open hardware and tries to work around this issue by relying not only on copyright, but also on a mutual patent immunity clause: the TAPR Open Hardware License, published in May 2007 (Version 1.0). The idea is that the licensor grants everybody who complies with the terms of the license the right to use any relevant patents they control. So if you don’t comply (e.g. by not publishing the “source” for physical products you build based on the licensed information), you might get sued by the licensor for patent violation, but if you comply you’re safe.

TAPR has published two versions of the license: the Open Hardware License (OHL), which emulates standard copyleft (like the GPL or CC BY-SA), and the TAPR Noncommercial Hardware License (NCL), which additionally prohibits commercial usage (like the CC BY-NC-SA).

Relying on patent law instead of copyright law for hardware makes sense, since patent law is made for hardware, while copyright law is made for information. But it’s also a problem, since getting a patent is a difficult and costly process, while getting copyright is free and automatic.

The TAPR licenses will only be really effective if the licensor possesses relevant patents, or at least if people can’t be entirely sure that (s)he doesn’t have any such patents. That’s a pretty bad limitation, since patents are difficult and expensive to get. Most peer projects will be unable or unwilling to apply for a patent, so the TAPR licenses will hardly be suitable for them.

Another unrelated problem of the TAPR licenses is that they require you to distribute the original designs you’ve received from others in addition to your own modified version—you must distribute both “before” and “after” versions of any files you’ve modified (§ 4.2 (b)). This might be extremely impractical for large version histories (think of hundreds or thousands of versions), and it makes the creation of printed versions of modified hardware documentation practically impossible. It’s also unclear what’s the point of this requirement.

Pragmatic Solutions: Just Use Standard Copyleft—Or No Copyleft Altogether

Most open hardware projects seem to care little about the specific issues of hardware licensing. Most projects aiming for copyleft just apply a standard license such as the GNU GPL or the Creative Commons BY-SA license, apparently either not knowing or not caring that is won’t apply to building hardware (see list of projects below).

Another solution is to forgo copyleft altogether and just use a permissive license such as the (modified) BSD license. This allows everybody to use the provided information in any way they like, without having to keep modifications or improvements open.

There even is a hardware-specific non-copyleft license, the Balloon Licence. The Balloon Licence is a simple MIT-style license. Since it does not try to apply any restrictions on the manufacturing of hardware (no copyleft or non-commercial clause), it doesn’t have the problems of other open hardware licenses. However, since this license is very similar to the commonly used MIT and (modified) BSD licenses and doesn’t address any new issues, there seems to be little reason to choose this special license instead of one of the standard ones.

What To Do?

As can be seen from the list below, there is a clear tendency of projects to use standard copyleft (the GPL or the CC BY-SA), protecting the design information itself but not any physical hardware built on their basis. Does this mean that projects are willing to live with a limited copyleft, or are they just unaware of the problem? I’m not so sure…

In any case, no convincing solutions seem to exist. The TAPR license, the only license that tries the address the problem of extending copyleft to the hardware itself, never became very popular—almost nobody outside the TAPR project seems to be using it. And indeed, its reliance on patent law makes the license very impractical to use for all but the biggest projects.

On the other hand, just using permissive licenses (like the Apache projects and the BSD family do) doesn’t seem to be an attractive option for the majority of open hardware projects—most prefer to get at least the partial copyleft protection that standard licenses such as the GPL and CC BY-SA can give them.

But, as described above, their copyleft protection is very incomplete in case of hardware—hardware builders aren’t required to give back their improvements. In the case of the RONJA project, this difference between hardware builders not giving back but the project maintainers expecting them to do so, has already caused tensions that contributed to the downfall of the project. Whether similar problems will appear in other projects and weaken the open hardware community, remains to be seen..." (http://www.keimform.de/2009/12/09/the-tricky-business-of-copylefting-hardware/)

The problem with existing licenses

Alicia Asín Pérez:

"Can people use a Creative Commons license to release their hardware? Some projects do that, but it’s probably not the best way. Creative Commons or GPL licenses only apply to works that can be copyrighted (for example theater plays, pictures, films, musical works, etc.). Creative Common licenses do not apply to the idea presented in the file. The only way to protect an idea is to patent it. After getting a patent you can license it, but patents are time-consuming and expensive, and most individuals can’t afford them. So, by using a CC license for releasing an schematic we are really releasing the drawing of the schematic, not the circuit that can be done with it.

There is still another question: copyright rights apply directly: this means that if you compose a song, your authorship is recognized automatically; however, the only way of getting rights over a utilitarian design or an invention is by a patent. So… you all might have released something that theoretically is not yours! Now you may wonder, what would happen if someone else patented my design? Well, in Europe, if you have published it, you have prevented it from being patented—you can’t even patent it yourself!

The TAPR organization has contributed to the Open Hardware developers community with an Open Hardware License. As they say in their website, they grant permission for anyone to use the OHL as the license for their hardware project, provided only that it is used in unaltered form. This license is based in GPL but unlike the GPL, the OHL is not primarily a copyright license. While copyright protects documentation from unauthorized copying, modification, and distribution, it has little to do with your right to make, distribute, or use a product based on that documentation. For better or worse, patents play a significant role in those activities. Although it does not prohibit anyone from patenting inventions embodied in an Open Hardware design, and of course cannot prevent a third party from enforcing their patent rights, those who benefit from an OHL design may not bring lawsuits claiming that design infringes their patents or other intellectual property”. This license takes into account aspects like manufacturing and distribution of products made with the documentation released, which are not considered in software licenses. The problem is that this license only affects the documentation related to the hardware, not to the products themselves (which is what happens with software and the GPL). However, the OHL is definitely a good start to build a more complete license." (http://www.freesoftwaremagazine.com/articles/making_open_hardware_possible)

Why "non-commercial" is a "non-good" idea for your project

From http://www.ladyada.net/library/openhardware/license.html:

"It seems like this misunderstanding about restrictions on projects has severely bogged down open hardware. A surprising large number of projects and people are not aware that by labeling their project "Creative Commons NonCommercial" they are taking it out of the Open Source pool and also likely keeping their project from being useful to people.

When talking to people, many express concern that if they remove the NC part of their license, their project will be "abused" somehow.

Let's approach these concerns and identify what is fact and what is just fear.

"I'm afraid that it will get copied by a large conglomerate and sold cheaply to people!"

This is the most common fear people have which keeps them from releasing a project under a true OS license. One thing to ask yourself is "Who is this company?" Are they real or just a figment? Try to write down some names.

What products do they have that are close to yours that would make them a contender to 'steal' your work?

Do you think that a large company that has many liability concerns would be comfortable using an Open Source project in their line of products?

More to the point: Do you think that the company would be willing to risk intellectual-property issues that would open it up to lawsuits if they misused the content, or do you think it would make more sense for the company to spend the $5-$10K dollars to just design something similar that would be wholy owned by them?

Companies are often valued by their assets. An open source project isn't really an asset compared to a internally-developed one for which they own all intellectual property such as copyrights and patents.

Chances are if you really think hard about the 'big scary guy' who is trying to rip you off, the fact is, there's probably nobody out there with that interest. It's too risky for most, and anyways the hardest part of product development is rarely the 'schematic' but rather the manufacturing, distribution, etc.

"I'm afraid my project will be used by some big company without proper credit or attribution!"

While this doesn't have much to do with "NonCommercial" it has come up. Some people figure that by making the license restrictive they avoid having people use their work without attribution. Except that in reality, the logic doesn't work. Anyone who would not attribute your work properly probably wouldn't care about the non-commercial part anyways.

If you're concerned about attribution. here are some things you can do. Most of the time attribution is just not clear!

Place your name/email/web/license on the PCB in copper layer as well as the name of the project. If you don't have a lot of space, use a name that is unique and 'googlable'

Do the same on the schematic

And with the code

Write a quick paragraph about what kind of attribution you would like. For example I often say "You must keep the attribution on the PCB and schematic and in the firmware files, as is"

Some companies with Open Hardware projects have 'requests' for attribution. For example ObDev requests "Publish your entire project on a website and drop us a note with the URL. Use the Feedback Form for your submission." It's not legally binding but most people follow the request.

I would like to sell my project as a product and I'm scared of someone becoming a competitor!

This is a slightly-more reasonable fear, and it's quite scary. But here are some things that you can remember: You can require attribution that makes it clear that you are the originator.

You can use trademarks to create a brand. Trademarks are not covered by Open Source licenses so they remain your property. Trademarks are super-cheap compared to patents, and you can file for them yourself for about $275.

Your product is more than just a circuit board. Its your service and value. Anybody who wants to make a direct copy of your project and sell it 'to make big bucks' without making a contribution to the project, is probably pretty lazy to start, and won't be able to do the very hard work of selling a product: providing support, performing upgrades, and all the other nonsense that business-owners must do.

Here is a real-life example: the Arduino project is Open Source. There is a product that the team sells, an assembled circuit board as well as accompanying open source software. The team trademarked the word (although they haven't registered it yet), so that only the original team can use the word Arduino in the name. That isn't to say there aren't clones, there are quite a few. But they have to make it clear that they are not originals because of attribution and trademark. People do buy the clones but the numbers are very small compared to those who would rather get the Official Arduino, which is already assembled, is well supported and is guaranteed to be compatible.

If you keep your project "non-commercial" it is less likely to succeed and evolve!

If Firefox or Linux (or apache or mysql or any other open source software you use) was released under a non-commercial license, how popular do you think it would be today? Think about it: nobody working at a company could use it. No e-commerce site could use this software, or any website for a company.

Redhat, Novell, IBM, Dell, etc all use Linux in their products and services, and thus use it to make (or rather, save) money. Is that a bad thing? Do you think that Dell selling laptops with Linux preinstalled has hurt Linux or helped get it out to more people?

Do you think Linus, GNU/FSF and the rest of the people who helped design Linux and subparts dont get attributed?

If you say "non-commercial" that means nobody working in a company can use your design either. That means its stuck in academia forever. It also strongly restricts who can use or contribute to it. There might be a company that could make a big improvement to your design as part of using it in one of their projects, but they'll never work on your project because they can't!" (http://www.ladyada.net/library/openhardware/license.html_

More Information

Open Hardware Licenses

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