[ohf-licenses] ohf-licenses Digest, Vol 4, Issue 11

[Greg London]

> But it made me wonder -- are they already "open hardware" even if the
> plans are "non-free"?

Start off with no IP law at all.
Draw a Labyrinth for that, and you get a completely open floor plan.

Add Copyright Law. Draw the labyrinth for that.
You get a couple of new rooms that didn't exist before.

Now, add a Public Domain style license, and draw the labyrinth.
The Copyright Rooms still exist, but the Public Domain license
converts the proprietary doors that gave the owner complete
control, and converts them into one-way doors that gives the
public the ability to make proprietary forks that the original
author cannot access.

Now add a copyleft license, and draw the labyrinth for that.
The copyleft license acknowledges the existence of the different
rooms, and deals with them in a very specific way:
it takes all the doors off the hinges so no one can enter a room,
close a door, and prevent anyone else from following.

That's looking a purely textual works, like software.

Now switch over to hardware. Someone can make a design and
post it on the web with "All Rights Reserved". They cannot
prevent someone from manufacturing the actual thing in the
design though. Copyright doesn't allow the author that level
of control. If the author is making the design files publicly
visible, he can't prevent people from learning from those
designs and implementing them. That is what a patent does.

Baring the existence of a patent, the author would need
to withold the design documents and enter into a contract
with whoever receives the design to get them to agree to
certain restrictions in exchange for receiving the design
itself.

This is how NonDisclosureAgreements work. We agree to give
you the design to our chip or core or whatever, and you agree
that you will only use it in one chip. If you want to use
it in another chip, you'll have to pay us more money.

So, are your windmill design guys "Open" or "Free"?
And what do those terms really mean?

The real question is not whether their license is
"open" or "free", but whether or not their approach
will enable and encourage a Gift Economy to grow
around their works.

Looking at their approach, I'd say the answer is "no".

What they're doing is entering into a one-on-one relationship
with whoever wants to buy parts from them. They are making
the plans available for gratis, but the plans are completely
copyright restricted, which means no one can make modifications
or improvements to the design.

Essentially, what they are doing is the hardware equivalent
of ShareWare. They're giving away a gratis work that is
completely locked up by ARR. You can get that work for free
and go and build your own windmill. Or you can get the work
for free and buy parts from them and build your own windmill,
but what you can't do is modify the design or redistribute
the design.


> What advantages are there to a more liberal license?

Since their designs are not patented, anyone could build
parts for the windmill. Copyright does not give them a
manufacturing monopoly. If they are giving the plans away
for free, then copyright does not give them a monetary
advantage either.

I think what they're tryign to do with being the sole source
of the plans is be like the food places at the mall where they
have people standing out in front handing out free samples
and the cash register is only a few feet away.

Get a free sample from them, buy food from them.

Or, in this case, get free plans from them, and have a
pretty good idea that you can get any of the parts from
them.

If they release the plans, then anyone can distribute
the plans, and they're not the only ones giving out
the free samples.

They would have to take it on faith that releasing the
plans would make more people aware of the design and
send more people back to them to get parts. They'd also
have to take on faith the idea that some people might
be willing to improve the design, and that if the design
is under a copyleft license, then those improvements would
be available to everyone, make the design better, make
more people want to build the design, and make it so
that more people are likely to buy parts from them.

What we've seen in software is that this is basically
how it works out. But it's one of those things where
you can't "prove" that is how it must work out, only
that we have a lot of historical cases where that is
how it ends up turning out.



> Can we construct a *free* license that would satisfy these kinds of
> concerns?

A few years ago, someone published a book called "Breaking DES"
which was about how to break the DES encryption algorithm.
You couldn't distribute software that could do it, but the
courts have a long, long history of understanding the importance
of freedom of speech, and the idea of outlawing a BOOK because
it contained an FPGA design just didn't sit well with the courts.

The book contained VHDL code, if I remember correctly, and it
was formatted in such a way as to highly encourage scanning and
optical character recognition to convert the VHDL code in the
book into actual silicon in an FPGA.

I have a copy somewhere buried on my bookshelf.

Anyway, I think that there are issues with trying to use copyright
to operate in a way that allows it to weild far more power than it
would if it were a normal book.

If you're freely distributing a work and you're relying on a
copyright license to protect it, then I think the license should
not try to extend its powers too far beyond copyright rights to
copy, distribute, and create derivatives.

When the GPL goes into the realm of patents, it is specifically
dealing with "software patents", which are specifically something
that must be implemented in an expression, in copyright.

When CC-NC says you can't use the work commercially, it is limited
to saying you can't copy, distribute, or create derivatives primarily
for commercial purposes.

Those restrictions are are inside the realm of copyright.

Creating a copyright license which says you cannot "build"
the thing that the copyright work describes is outside
what copyright allows the author an exclusive right to.

You get an excluse right to build something only if it
is unique enough to qualify for a patent.

I don't think a copyright license that tried to implement
patent-like powers would stand up in court. And I definitely
don't think that such a license would qualify as Free in a
"the ends (free project) justify the means (over zealous
copyright license)" way.

It would work as a NonDisclosureAgreement, but that would
require the work be held privately and only distributed
to those who agree to the contract, which is definitely
NonFree.

Greg