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

[Greg London]

Le samedi 15 mars 2008 à 15:18 -0400, Greg London a écrit :
> What could happen to the CC-NC applied to a work, does its scope go
> beyond the work in this case, that is to say, building the hardware from
> the work for commercial purpose?
>
> Would a court conclude that the CC-NC license is solely about the work?

I think CC-NC is limited to saying you cannot Copy, Distribute, or
Create Derivative works Primarily Commercial Purposes (tm).

If Alice created a hardware design for a processor core
and put it under a CC-NC license, I do not believe that it
would hold up in court that Alice could prohibit Bob from
converting her design into hardware and *selling* the hardware.

Alice could prevent Bob from *Distributing* written copies
of the design for commercial purposes because "Distribute" is inside
the rights of copyright. But copyright cannot restrict manufacturing.
If you want to restrict manufacturing, you need to have a patent.

Or a NonDisclosureAgreement. And I can't see how an NDA is Free,
Libre, or Open anything.

> Maybe I have miss something but right now I understand that any license
> cannot prevent to build and sale hardware on the back of the opener.

That is my understanding.

I don't see that as the goal of the OHL either.

The point of the OHL is to find a way to protect the
community from people using the community version of
a design, modifying it, keeping those modifications
private, not letting the community access those modifications,
and competing against the community that gave them the
original design.

The GNU-GPL is a copyleft license that is "triggered"
by *copyright distribution*. Alice puts a work under GNU-GPL.
Bob can create a private derivative and is not required
to put it under the GNU-GPL and make it availabe to the
public.

We can see this loophole in the GNU-GPL when the work
is web-hosting software. Alice creates some web-hosting
software. Bob modifies it. Bob puts the work on his
hosting computers. Surfing Sam comes along to Bob's website.
Bob does not *distribute* a copy of the work to Sam.
Instead, Bob *executes* the work locally, and Sam interacts
only with the program output.

Bob is not required to make his modifications public.

This loophole can be closed by a license such as the
Apple open license. The apple license does not require
*distribution* to trigger copyleft. Instead, it only
requires *derivation* to trigger copyleft.

If Bob makes a derivative of Alice's work, even if
he never distributes it, he must make his derivative
publically available under the same copyleft license.

This is the only way the OHL can protect the designs
in any meaningful way. And what it would do is allow
Alice to put her processor design under the OHL,
and it would allow Bob to manufacture that processor,
and it would allow Bob to make derivatives of that
processor and sell those as well.

The thing is that selling silicon is not an act of
copyright *distribution*. It is patent law concepts
of "manufacturing" and "selling". So, the GNU-GPL gives
Alice almost no protection. Something like the Apple
license would allow Alice to make her design public,
and would allow Bob to do what he wants with it, with
the requirement that if Bob makes any changes to the
design, he must make those changes public as well.

Even if he doesn't "distribute" the work.

If you're going to put your hardware design under
an existing software copyleft license, the Apple
license would actually offer some level of protection,
whereas the GNU-GPL fails to protect the work in any
meaningful way. When used on hardware designs, the
GNU-GPL is much more like the BSD license because it
allows derivatives to be kept private.

The thing about any hardware license is that it is going
to be limited by functional boundaries because once Bob
converts the copyrighted design into silicon, then Bob
can alter the design without it qualifying as a derivative.
If Alice's design gets implemented as a bunch of different
chips on a printed circuit board, then no copyright license
can tell Bob that he doesn't have the right to pull out one
of Alice's chips and put in his own.

Most corporations that sell printed circuit boards protect
those board schematics under copyright and an All Rights Reserved
license.  But that doesn't mean they can prevent you from
taking their board and soldering in a jumper or hacking it
in some way.

When it comes to hardware designs, physical designs, the
functional boundaries in a design are pretty much as far
as you can expect copyleft to follow.

Alice has a processor design under OHL. Her design contains
some FIFO blocks.

Bob implements Alices design in a pcb with several chips.

Bob can pop out those fifos and put his own chip in instead.

Anywhere the design has a functional interface, Bob could
convert it into a physical device and make changes on the
physical level without it being a derivative of Alice's code.

If Bob changes ALice's code, then those changes should be
made public. But Alice needs to understand that no copyright
license can forbid reverse engineering or functional modifications
that occur on a physical level. And I think the license should
explicitely acknowledge that limitation and declare where the
functional boundaries exist so the Alices of teh world understand
what the license will and will not be able to do for her.

Greg