[ohf-licenses] ohf-licenses Digest, Vol 4, Issue 7

[Greg London]

> I've heard from both sides on this -- some people want the narrower
> copyleft and some want the broader one (in fact some people won't be
> happy with ANY limits on domain, but I think there always has to be some
> limit -- because if we don't pick it, the courts will).

Yes, and the courts have already said that
once you get into apurely functional, physical device,
copyright no longer applies.

If Alice's processor design were built out of many
different chips on a PCboard, you can't possibly expect
Alice to be able to *choose* whether her design is
monolithic or not. The way copyright is limited would
make that choice impossible.

If her design called for a "fifo" chip at some spot,
it would not be a "derivative" to replace that
fifo with some proprietary version of a fifo.

Copyright doesn't give you that sort of leverage
over physical things.

> Again, that's only if they don't want to honor the license,
> and that's not our market. We're not designing this for the
> benefit of people who want to take content out of the
> free-licensed domain.

Except we're talking about the software equivalent of someone
writing proprietary software to run on a Linux OS.

There are people who, if they had their wish, would figure
out a way to force proprietary applications to be
copyleft/FLOS if they want to run on Linux. They would argue
that these proprietary applications on Linux do not
"honor" the copyleft aspect of Linux.

But copyright law wouldn't call it a derivative, so
copyleft would not apply.

> We're just trying to have some sensible limits so we don't
> try to copyleft all technological civilization on the basis
> of one little bolt (because if we do that, that won't
> actually happen, what will happen is that the courts will
> draw a line for us -- maybe not where we want them to, and
> maybe not consistently).

Right. And more importantly:

*Alice can't make the decision as to where the line is drawn*

It's about finding a boundary that makes legal sense,
makes design sense, and makes sense for the FLOS community,
and it's proprietary users. (like those guys who use Linux
machines to host All Rights Reserved websites. )

A hardware design is hierarchical. The different levels of
hiearchy represent functional boundaries. If by chance, that
hierarchical design is implemented as several different chips
on a PC board, then it is no longer a matter of copyright if
someone takes out one chip in Alice's design and substitutes
their own proprietary chip.

This isn't about what Alice WANTS. This is about where
copyright protection disappears because the expression has
been converted into a physical device. And at that point,
the license can't prohibit Bob from swapping out one chip
for another.

Alice may as well wish for unicorns because she can't
prohibit proprietary alterations to be added to her design.
The boundary where this occurs is at a functional boundary.

It is possible to say in the license that if you modify
some EXPRESSION inside the functional boundary then you must
release that modification to the public.

If Alice has a FIFO in her design, and Bob modifies the code
for that fifo, using Alice's code as a start, then that
modification is a copyright derivative, and Bob must make
it public.

But you can't prohibit Bob from swapping in a different fifo
that he designed himself. At a board level, you can't use
copyright to prohibit someone from changing chips.

So, Alice can't make that choice. It is outside her control,
because it is outside of copyright law.

>> The hardware license I propose is diagrammed on page 46.
>
> Of course, that may not be the same as what I'm aiming for here.

But did you at least read it before disagreeing with it?


> The idea for OHPL is to be the strongest reasonable copyleft you can put
> on hardware. We *want* to actively encourage the growth of a copylefted
> domain of design elements that can be used in copylefted designs. We're
> not really trying to protect the interest of people who want to escape
> the copyleft.

You're invoking emotionally charged words here.
Above you said you weren't interested in helping
people who didn't want to "honor" the copyleft license.
Here you're talking about people trying to "escape" copyleft.

I'm talking about a functional boundary like people running
a proprietary application on Linux. Or people hosting
a proprietary content website on a Linux webserver.

Whether you like that sort of behaviour happening on a
linux machine, it's beyond copyright and copyleft to prevent it.

Alice has a Processor design. Her design contains fifos.
Bob comes up with a new fifo design. Maybe he even patents it.
You can't use copyright law to prevent Bob from doing that.
You can't use copyright law to demand that Bob make his
fifo publicly available. And you can't use copyright law
to prevent Bob from swapping out physical parts to put
his own fifo into Alice's processor design.

Yes, some poeple would love to require that anyone who
uses linux must make all their uses publicly available
under the same license as linux. But that will overstretch
copyright law and no court would support it.

I'm trying to tell you that you're overstretching copyright
law, and you're taking it as if I'm trying to
"protect the interest of people who want to escape the copyleft".

They're not escaping copyleft because they're not working
inside copyright anymore.

If Bob uses Alice's code, YES BY ALL MEANS it is a matter
of copyright and you SHOULD require Bob to make his changes
to Alice's code public.

Stop. Read that paragraph again. No, seriously, go back and read it.

But if Bob creates his own piece, and plugs it
into Alice's design, or if Bob creates his own piece and
uses it as a replacement for some component in Alice's
design, or if Bob creates his own piece and uses it as
a wrapper for Alice's design, then you're not really in
the domain of copyright anymore, because anywehre there
is a functional boundary, the design can be reduced to
a physical level where copyright doesn't apply anymore,
and you can't prohibit functional connections or modifications.

Alice cannot declare that her multi-chip design on a printed
circuit board is to be treated as some monolithic design.
If Bob decides to replace alice's FIFO chip with his own,
if Bob decides to replace Alice's USB chip with WIFI,
if Bob decides to replace ALice's DDR with EEPROM,
then she cannot via the license prohibit that.

It isn't that Bob isn't "escaping" copyleft or that he
isn't "honoring" copyleft, it's that these sorts of modifications
are outside the realm of copyright and copyleft and no
license can prohibit it.

And as I said before, the license should be clear in
what its limitations are. Not to help the Bob's of the
world, but so that the various Alice's out there don't
get a false sense of security in what the license can do,
and then Alice gets extremely upset when Bob does something legal,
but Alice thought the license would prevent it.

If Bob modifies Alice's source code, instant copyleft and
the modifications are to be made public.

If Bob only uses part of Alice's source code, doesn't
modify any of it, and just uses the functional boundaries
to define his own code, then Bob can push Alice's design
out of the realm of copyright and make his own functional
connections. He can change functionality without creating
a derivative because Alice's design always has to enter
the physical domain.

And Alice cannot wrap her design in some sort of
super-interllectual-property law that covers both
written expression and physical functionality as some
sort of monolithic design monopoly.

Greg