As the open source world has grown, so have concerns about the context in which openly licensed items are used. While these concerns have existed since the beginning of the open source movement, today’s larger and more diverse movement has brought new urgency to them. In light of this revived interest within the community, the time may be ripe to begin encouraging experimentation with open source licensing again.

How We Got Here

While the history of open source software is long and varied (and predates the term open source software), for the purposes of this blog post its early evolution was driven by a fairly small group of individuals motivated by a fairly homogeneous set of goals. As the approach became more popular, the community developed a wide range of licenses designed to address a wide range of concerns. This ‘First Cambrian Explosion’ of open source models and software licenses was a time of experimentation within the community. Licenses varied widely in structure, uptake, and legal enforceability.

Eventually, the sprawling nature of this experimentation began to cause problems. The Free Software Foundation’s Free Software Definition and the Open Source Initiative’s Open Source Definition were both attempts to bring some order to the open source software world.

In the specific context of licensing, the Open Source Initiative began approving licenses that met its criteria. Soon thereafter, it released a License Proliferation Report detailing the challenges created by this proliferation of licenses and proposing ways to combat them.

These activities helped to bring order and standardization to the world of open source licensing. While OSI continues to approve licenses, for well over a decade the conventional wisdom in the world of open source has been to avoid creating a new license if at all possible. As a result, for most of this century open source software license experimentation has been decidedly out of style.

Largely for the reasons described in the License Proliferation Report, this conventional wisdom has been beneficial to the community. License proliferation does create a number of problems. Standardization does help address them. However, in doing so standardization also greatly reduced the amount of license experimentation within the community.

Reduced experimentation means that concerns incorporated into approved licenses (access to modifications of openly licensed code) have been canonized, while concerns that had not been integrated into an approved license (restrictions on unethical uses of software) at the moment of formalization were largely excluded from consideration within the open source community.

What Changed

What has changed since the move towards codification of licenses? The open source software world has gotten a lot bigger. In fact, it has gotten so much bigger that it isn’t just the open source software world anymore. Creative Commons - today a towering figure in the world of openness - did not even exist when the Open Source Initiative started approving licenses. Now the open world is open source hardware, and Creative Commons-licensed photos, and open GLAM collections, and open data, and all sorts of other things (this is a whole other blog post). The open source world has moved beyond early debates that questioned the fundamental legitimacy of open source as a concept. Open source has won the argument.

An expansion of applications of open source has leady to an expansion of people within open source. Those people are more diverse than the early open source software proponents and are motivated by a wider range of interests. They also bring with them a wider range of concerns, and a wider range of relationships to those concerns, than early open source adopters.

What is Happening Now

This broader community does not necessarily share the consensus about how to approach licensing that was developed in an earlier period of open source. They bring a range of viewpoints that did not exist in the earlier days of open source software into the open source community itself. They are also applying open source concepts and licenses to a range of applications that were not front of mind - or in mind at all - during the drafting of today’s canonical licenses.

Unsatisfied with the consensus rules that have delivered us the existing suite of (incredibly successful) licenses, parts of the community have begun experimenting again. Veteren open source lawyers are rewriting licenses with public understandability in mind. Community members are transforming their interpretation of open source development into licences that invite collaboration without intending to adhere to the open source definition. Some of these licenses are designed to address concerns traditionally excluded from the scope of open source licenses. I am directly involved in the ml5.js attempt to do just that.

The creators of these experiments are responding to a standardized approach to licensing that does not fully accommodate their needs and concerns. In some cases the standardized approach does not accommodate these concerns because the community litigated including them in the past and decided it could or should not be done. However, even in those cases, that debate happened within a very different community in at least somewhat different contexts. The conclusions arrived at then are not necessarily valid for the broader world that open source finds itself inhabiting.

In light of that, it may be time to begin encouraging experimentation in open source licensing again. Encourage people to test out new approaches by applying them to real world problems. In some cases, the decisions made in the past will prove to be robust and sustainable. In others, a new debate will reveal the decisions’ shortcomings. In both cases, the open source community will be stronger by being tested from within.

Coda: Is This Post Just a Lawyer Advocating for Lawyers to Have More Fun?

Throw out the old ways of doing things! Try something new! Experiment! Is this just a call for lawyers to have fun by screwing around with exotic licensing concepts at the expense of everyone else’s stability (and sanity)?

It could be. But I don’t really think so. The thing about lawyers (as a group - there are always exceptions) is that novelty and instability makes us nervous. Things that are tried and true will probably work. That means we do not have to worry about them. New things - who knows what will happen to them? That uncertainty makes lawyers nervous.

That is part of the reason why lawyers like today’s conventional wisdom. The canonical set of open source licenses have more or less worked for decades. It is unlikely that they will explode, and it is even less likely that they will explode in the face of the lawyer who uses them on any given project. In contrast, any lawyer who writes their own license is setting themselves up for a period of anxiety, waiting to discover what they missed or how things will go wrong.

Of course, some lawyers do think it is fun to cook up new open licenses. And maybe this post is a call for them to do more of it. But, on balance and as a whole, introducing new licenses into the world of open source will probably cause open source lawyers more anxiety than joy.

I think that anxiety is probably worth it. But that will be far from a universally held position.

Feature image: Isogelus gigas Dekay (you know, trilobites. as a vivid illustration of the cambrian explosion. NOT as a suggestion that people who insist on only using the classic OSI approved licenses are stuck in the past. I use those licenses too! They are great!) from the Smithsonian Open Access collection

The shift to digital goods has allowed merchants of digital goods to combine the advantages of both selling and renting, leaving purchasers with the disadvantages of both.¹ A better approach would be to maintain traditional sales and renting norms into the world of digital goods. Specifically, merchants should be forced to choose between licensing their goods under an ongoing duty to maintain them or selling the goods outright, removing their obligation to maintain them in the future.

Traditional Choices

Since Ye Olden Times, a merchant has basically had two choices with regard to getting money for their stuff.² The first choice was to sell the stuff. The second choice was to rent the stuff out. As is often the case, these choices come with pros and cons for everyone involved in the transaction.

Selling Pros

The biggest advantage to a merchant selling a good was that they were no longer responsible for it. A buyer bought it. That new person now owned it. Subject to any warranty requirements, once the seller sold the good, it was the purchaser’s problem. When someone figured out that you could use a pen to pick most Kryptonite bike locks, Kryptonite did not have to upgrade all of the locks they had sold up to that point. They had sold them. Newly discovered security problems were the buyers’ problem.

Selling had advantages for buyers too. Once a buyer buys something, they can do whatever they want with it. Paint it purple, break it up into a million pieces, give it to a friend, sell it to a stranger - the choice is theirs. A buyer does not need to check in with the original seller or get their permission. They own it.

Selling Cons

Of course, all of these benefits come at a cost. For the seller, it is a lack of control after sale. Maybe the seller doesn’t want a buyer to paint it purple, break it up into a million pieces, give it away, or sell it again. If the seller sold it, their opinion doesn’t matter. They lost control once the sale was complete.

Selling has costs for a buyer too. Once a buyer buys a good, they are on their own. They are on the hook to fix it, maintain it, or replace it if it turns out that it has a gaping security flaw.

Renting Pros

Renting (or leasing, or licensing) has its own set of tradeoffs. For owners, one of those benefits is ongoing control. If someone renting a house wants to paint it purple, the owner renting the house can tell them no. It’s still the owner’s house and that owner gets the final word.

Renting has benefits for renters as well. A renter does not own the thing they are renting. If it breaks, they can go back to the owner to get it fixed. Renters do not need to worry about regular maintenance in the same way that owners might (as Larry Summers may or may not have first said, ‘In the history of the world, nobody has ever washed a rental car.”) In some situations, the owner may even be obligated to maintain the thing being rented at a certain level. For example, landlords usually have an implied warranty of habitabilty that makes them responsible for maintaining the property so that it is livable for the tenants.

Renting Cons

The cons of renting are fairly straightforward. For owners, renting brings an ongoing obligation to maintain the thing being rented. Owners continue to be responsible for the thing during the period of the lease.

Correspondingly, renters lose control over how they use the thing being rented. Their use is still governed by the preferences of the true owner. That means that renters cannot do whatever they want - instead, they need to play by the owner’s rules.

Digital Choices

In a traditional marketplace, the choice between selling and renting feels like a true choice with various costs and benefits. Sometimes it makes sense to rent. Sometimes it makes sense to sell. Both options involve tradeoffs for everyone involved and there is no universally “correct” answer for either people putting goods on the market or people looking to acquire them.

That is not true in the world of digital goods. In the world of digital goods, it is almost always in the person marketing the goods’ interest to make them available to rent instead of selling them outright. Although digital goods are often framed as being “sold,” they are almost always licensed (read: rented) by the owner. Moreover, they are licensed on terms that allow owners to combine the pros of the sale and renting choices for themselves while forcing the cons of both on the people paying for them.

Pros for Owners

The digital lease model allows a seller to maintain ongoing control over how the digital good is used. That means restrictions on giving the good to others, reselling it, or any number of other things. At the same time, the terms of the licensing agreement can essentially eliminate any obligation to maintain the good over time. Security vulnerabilities, incompatibilities, and simple bugs are not the seller’s problem.

Cons for Consumers

Consolidating the benefits with owners means consolidating the costs with consumers. Consumers do not get to control the digital goods they pay for - owners can veto modifications, transfers, and anything else. Owners can even just turn the good off, or make it disappear altogether. At the same time, consumers also do not get any sort of protection against the failure of the good, or to rely on someone else to maintain it.

A Better Balance

It is easy to understand why someone offering a digital good would prefer this arrangement. It is less clear why this arrangement is something that we should support as a matter of public policy. Instead, we could work to restore the balance between owners and consumers by reviving the obligation to choose between selling and renting digital goods. This would recreate a meaningful choice for everyone involved in the transaction.

Keep Renting

Owners could continue to lease their digital goods, maintaining control over how they are used. However, that control would come at the cost of a duty to maintain the digital good over time.

What would that duty to maintain look like? For starters, it could include an obligation to patch known security vulnerabilities and maintain compatibility so that the good continues to be usable. These obligations are not impossible to meet. Today services such as Netflix or Spotify regularly update their software and release versions that are compatible with new (or updated) platforms as part of their service offering. It should probably not come as a surprise that these services clearly market themselves as rentals, where it is clear that cancelling a subscription means losing access to the service.

Meeting these obligations would look very different for digital goods that position themselves as something closer to being ‘sold.’ The version of AutoCAD someone paid for in 1997 is undoubtedly full of security vulnerabilities. It also would no longer run on generally available hardware. DRM-restricted music where the validation server has been taken offline is similarly of little value. If the owners want to maintain control over software, music, or other goods, they should also have a duty to maintain it for the term of the rental. That is true even if they decide that the rental extends into perpetuity.

Or Sell

Owners who want to avoid maintaining their digital goods into perpetuity have a simple alternative - just sell them. Selling the digital good should relieve the owner of any ongoing obligations to them. It would also mark the end of the seller’s ability to control what the buyer does with the good. Once the good was purchased, the new owner would be free to do whatever they want with it.

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While I think it might be a useful way to think about what it means to own or lease digital goods, it doesn’t even qualify as the tip of the iceberg on this issue. If you are looking for a real place to start I recommend Aaron Perzanowski and Jason Schultz’s book The End of Ownership, and not just because I work with Jason at the Engelberg Center. You can buy a physical copy, or download your own open access copy.

Feature image: Riding a Giant Corncob to Market from the Smithsonian Open Access Collection

This post originally appeared on the Engelberg Center blog

The open source hardware response to COVID-19 was one of the few bright spots in the early days of the virus. Responding to shortages of equipment and supplies, informal, distributed communities came together to design, manufacture, and distribute a wide range of medical equipment where it was needed most.

Today the Engelberg Center, in partnership with the Wilson Center, is proud to announce Stitching Together a Solution: Lessons from the Open Source Hardware Response to COVID-19. Drawn from interviews and discussions with makers, organizations, and government regulators, this whitepaper explores how these efforts came together and details their challenges and successes. It then presents recommendations to help make better use of this flexible, responsive capacity during future crises.

The paper details how grassroots communities came together, often relying on existing ties and networks. It also examines how government regulators learned to interact with these communities in an attempt to support them. While the early months of the response shimmered with possibilities, the collective experiences during that period teach hard lessons and suggest ways to work better in the future.

There are many ways that governments and the open source hardware community can prepare now to support more effective emergency responses in the future. The report contains fifteen specific steps that authorities can take to guarantee that the capacity inherent to the open source hardware community is fully available when it is most needed. These recommendations focus on recognizing the capacity, expanding its capabilities, and preparing to use it more effectively in the future.

You can read the full report here.

This post originally appeared in Volume 75 of Make Magazine

It is appropriate that, ten years after the first Open Hardware Summit, open source hardware was a key part of the initial COVID response. Engineers, designers, and medical professionals collaborated from around the world to design and deploy medical equipment to meet the world’s unprecedented need.

In many ways, this is exactly what participants had in mind during the first open hardware workshop organized by Ayah Bdeir and held in the Eyebeam art space in October of 2010. They were not the first people to discuss open source hardware — open source activists like Bruce Perens had been advocating for open source hardware since the late 1990s. Nonetheless, that gathering helped lay the groundwork for the modern open source hardware movement.

The idea of open hardware does not exist in a void. It builds on decades of engineering, legal, and cultural work by the open source software community. In fact, most of the structures of the open source hardware community started as structures in the open source software community. While many of those central tenants remain the same, a decade of applying software’s ideas of openness to hardware has created a culture all its own.

By 2020, the Open Hardware Summit (virtual this time thanks to COVID) had grown into an international event, bridging together a community spread around the world.

Why 2010?

By 2010, two related trends began to converge. The first was the arrival of “good enough” hardware. Although things like processing power continue to increase rapidly, by 2010 hardware components did not need to be on the absolute cutting edge in order to do genuinely interesting and useful things. As articulated by Bunnie Huang at the 2011 Open Hardware Summit, this dynamic made it relatively easy for small businesses and groups of people to create compelling hardware without having access to multi-million dollar research pipelines.

This relative ease of creation helped spur the second trend: the emergence of a critical mass of companies and communities creating accessible, open hardware. Adafruit, Arduino, Evil Mad Scientist Laboratories, Makerbot, Reprap, Sparkfun — by 2010 these efforts were not isolated incidents. They were a budding community that validated each other.

That community quickly began to formalize itself. That initial workshop was quickly followed by a number of important milestones, including kicking off an annual Open Hardware Summit, creating an open hardware definition, agreeing on a logo, and, led by Alicia Gibb, establishing the Open Source Hardware Association (OSHWA) to house it all. A few years later, the Gathering for Open Science Hardware (GOSH) created a manifesto specifically for bringing open source hardware to the scientific community. All of this happened in collaboration and dialogue with the larger Maker movement, which was also growing.

Growth and Challenges

The needs of the open hardware community growed as more people joined. Once the community grew beyond a relatively small group of people with in-person connections, Phil Torrone realized that writing down the unspoken rules of open source hardware would make it easier for new people to join the community. Documenting the rules acted as an invitation to new community members, giving them confidence to navigate the collective expectations of open source hardware.

This period also helped to show that open source hardware theories also worked in practice. In a prelude to today’s COVID responses, the Safecast radiation sensor project organized radiation level tracking in response to the Fukushima Daiichi Nuclear Power Plant disaster. Open source hardware companies multiplied across a wide range of industries. While there were high profile stumbles — such as the flagship open source hardware company Makerbot going closed — the trend in open source hardware was towards growth and new applications.

That growth brought additional challenges. Although OSHWA maintained the community-created definition of open source hardware, no one owned the term ‘open source hardware’. The celebrated “open gear” open source hardware logo was similarly free from any one individual or organization’s control. While this openness brought a number of benefits, it also meant that nothing prevented decidedly not-open hardware from advertising itself as if it was open. This behavior — sometimes described as “open-washing” — threatened to undermine the term open source hardware and render it meaningless.

In response, OSHWA decided to create a new open source hardware certification program and certification logo. The free program gave open source hardware creators and users an easy way to identify open source hardware that met the requirements of the open source hardware definition. Regardless of how a piece of hardware was advertised, a certification logo meant that it complied with the community definition of open source hardware.

The certification program also gave OSHWA an opportunity to consolidate information about one of the other perpetual open source hardware challenges — licensing.

Licensing is one of the biggest differences between open source software and open source hardware. Software is “born closed” — automatically protected by copyright from the moment it is written. A piece of software is fully protected by copyright, meaning that anyone who wants to use it needs permission from the creator — a license. Over the decades, the open source software movement has capitalized on the born closed nature of software, using licenses to spread the requirements of openness beyond people with an inherent interest in openness.

In contrast, major parts of hardware are “born open” — not automatically protected by copyright or any other kind of right. While some parts of hardware may be protected by copyright, other parts may be free by default. This creates a much more complicated rights situation, making it much harder to understand when a license is necessary — and when a license can require other users to be open.

Although existing open source software licenses can be used to license portions of open source hardware, the community also created licenses drafted with the specifics of hardware in mind. Various licenses, such as the TAPR Open Hardware License, the Solderpad Open Hardware License, and the CERN Open Hardware Licenses emerged as options for the community. While these licenses do not necessarily clarify when a piece of hardware requires a license in the first place, they can help give the community confidence that — to the extent that they are necessary — the licenses will perform as expected. CERN’s recently released second generation licenses use “flavor of openness” designations to help make navigation even easier.

Open Source Hardware in 2020

Ten years in, the open source hardware community continues to grow. OSHWA’s certification program includes hardware from over forty countries on five continents. Open Hardware Month activities in October include a similarly international set of events. GOSH continues to help spread open source hardware in the international science community.

The global response to COVID vividly illustrates the importance of open source hardware approaches. Teams from around the world came together to rapidly create, innovate, and distribute a broad range of medical supplies to communities that needed them most. Their open approach allowed improvements and best practices to propagate quickly, and for communities to easily modify equipment as needed.

If 2010’s original open source hardware workshop was about exploring a theory of open source hardware, 2020’s open source hardware community proves that theory out every day.

The Next Ten Years

Open source hardware is all about collaborative innovation, so the next ten years will look very different from the first ten. While we cannot anticipate all of the challenges, some opportunities are clear:

Marking the path for open source hardware success. There are scores of examples of successful open source hardware companies. While they are beginning to highlight common factors for success, we are far from a playbook (or playbooks) for successfully creating open source hardware. Further distilling the lessons for open source hardware success will make it even easier for a broader open source hardware community to succeed.

Diversify Open Source Hardware. Although the open source hardware community is already an international one, it will continue to work to be a community that welcomes and celebrates members from a broad range of backgrounds and experiences. In addition to individual diversity, the open source hardware community will also work to incorporate more types of hardware and hardware applications.

Easier academic paths. Some of open source hardware’s strongest advocates are in academia. Unfortunately, it can be hard for traditional academic structures to recognize contributions to open source hardware. The academic portions of the open source hardware community continue to work to make sure that contributions to open source hardware are valued equally with contributions to less open projects.

More open components. One of open source software’s great strengths is that any given piece of open source software is built upon a number of open source libraries and other building blocks. The open source hardware community will work to build more open components, allowing open source hardware practices to extend deeper into the hardware world.

Keep growing the community. The open source hardware community has grown in the last 10 years, but there is plenty of room to keep going. As open source hardware becomes more common and accessible, the community will continue to expand, finding (and building) new ways to use open source hardware.

This post originally appeared as part of a series on open hardware and key messages for public policy hosted by the Journal of Open Hardware

One of COVID’s early victims was the medical supply chain. As the crisis spread in the spring of 2020, public health authorities began to report shortages of everything from plastic face shields to ventilators. In response, seemingly overnight and from nowhere, a distributed network of open source designers, manufacturers, and distributors — for example, Make4Covid, GetUsPPE, Makers Unite!, and Open Source Medical Supplies — emerged to fill the void.

This open hardware community was not a formal organization. Instead, it was made up of individuals with skills that made up pieces of the puzzle — a textile designer, an electrical engineer, a 3D printer in a makerspace — assembling themselves into an open production network. Using open hardware principles, they designed new equipment (sometimes from scratch), found ways to manufacture that equipment locally with digital production tools or crafting assembly lines, and distributed that equipment to the places that needed it most.

This response is a powerful validation of open hardware design concepts. By developing in the open, and in openly licensing their work, these individuals and networks were able to quickly iterate on designs. Improvements discovered in one corner of the network were quickly adopted across the network, resulting in a rapid convergence on the most effective approaches.

The response allowed society to respond nimbly to the COVID crisis. Informal, distributed networks were able to quickly design the equipment that was needed. That equipment was free to be produced locally in order to address localized shortages. Individual communities could also easily modify the open equipment designs in order to match local medical or manufacturing conditions. Sometimes these local modifications were contributed back to the collective. Other times they were only relevant to one place at one time.

The openness at the heart of open source hardware is what made this fluid response possible. Creators who contributed to collective designs could be confident that their work would not be removed from their control by an entity assering some sort of intellectual property ownership over it. Designs could be modified without negotiating licenses, or even identifying the original creators. Equipment could be manufactured by anyone without reporting to — or obtaining permission from — a central authority.

Although the open hardware response to COVID was extraordinary, there is reason to believe that it could have been even more impactful with more formal support from public health authorities.

Most of the early open hardware development was guided by a combination of the ad hoc interests of response participants and information gleaned from public reports of need by medical responders. This meant that the alignment between the demands of medical responders and the open hardware community was imperfect, leading to inefficiencies on both sides. Public health authorities could have improved the efficiency of the response by playing a matchmaking and information distribution role, clearly communicating need to the open hardware community and capacity to the medical community.

Similarly, the informal networks of open hardware designers, manufacturers, and distributors were not well matched to the existing regulatory frameworks that control some types of medical equipment. While this regulation is important and exists for good reason, public health authorities could have worked with the open hardware community and regulators to develop clear guidelines for how the open hardware community could work within frameworks. These groups also could have worked collaboratively to build new regulations that were most appropriate for the emergency conditions at the time.

As a result, the open hardware response to COVID stands as a tantalizing example of the power of open hardware in a crisis and an opportunity to prepare even more effective responses in the future. While we hope that COVID is a once-in-a-lifetime crisis, many types of crises strain our supply chains. By taking steps to recognize and engage the power of the open hardware community, governments, public health authorities, and emergency responders can enhance their capacity for flexible, effective response to crises in the future.

These steps can take many forms, but they all rely on the decision to take the power of open hardware seriously. Building connections with open hardware networks and government supply chains in advance of the next crisis, forging paths for communication between regulators and non-traditional creators, and making publicly-funded hardware available to open hardware communities will help to supercharge the open hardware response to the next crisis. Failing to take these steps will make it that much harder for the open hardware community to make a full contribution to crisis responses in the future.