Let’s start this post off with a massive lawyerly caveat. Every software license is different and your specific license and situation probably has details that impact this analysis. Because of that, this post is not legal advice. Instead, it is mostly a thought experiment to try and spot some legal issues. So if you are worried about your own exposure to liability you should talk to a lawyer that actually understands your situation. Also, this is my opinion and not the opinion of the Open Source Hardware Association. That being said….
Let’s say you are in a university setting. And let’s say that setting gives you the good fortune of having access to some expensive software packages that can be used to design open source hardware. Can you even use that software to design open source hardware?
Wait,
what? Why is this even a question?
Educational software licenses often include a non-commercial restriction. On its face, this restriction appears to be reasonable. The software is sold with the understanding that it will be used in an educational setting for educational purposes. Students get access to powerful software, but if they want to start a business they need to pony up for a full commercial license.
Why would using this educationally licensed software to create open source hardware be a problem, even if you had no intention to sell the resulting hardware?
The fifth principle of the open source hardware definition is free distribution, specifically that the license used “shall not restrict any part from selling or giving away the documentation.” The eighth principle is no discrimination against fields of endeavor, including not restricting the hardware from being used in a business.
The result is that if you put documentation for your open source hardware project online, you are by definition allowing people to use the project commercially. To put it another way, you are failing to limit the use of that project to non-commercial situations.
Arguably, that means that you are using your educationally licensed software knowing that the result can be used commercially – even if you have no intention of using it commercially. And that may very well mean you are violating the terms of your license.
The Two Key Infringement Questions
Whenever you are thinking about infringement liability, it can be useful to think about two separate, but related, questions: 1) are you infringing?, and 2) if yes, is it likely that you will be sued? We’ll take these in turn.
As to the first question – are you violating the license and therefore infringing on the software owner’s copyright? – the answer will turn on the actual text of the license. However, it is certainly technically possible. A commercial restriction is likely to be written in a way that basically says “you can use this software as long as you aren’t doing it in connection with a commercial purpose.” The implication – and depending on the wording of the license it may be more than implied – is that you have to avoid any commercial uses of what you are doing with the software. That means taking reasonable steps to prevent the program’s output from being used commercially. Since open source hardware explicitly avoids taking such steps, opening up your project could very well violate the terms of your license.
Of
course, there are two questions, not one. Once you step away from the world of theoretical legal blogging and into the real world, the second question is arguably more important than the second one.
While the answer to the first question may very well be “yes,” the answer to the second question – are you likely to be sued for your violation – seems likely to be “no” in most small open source hardware cases. Mostly, that is because it is hard to think of a way in which it would be in the software owner’s interest to go after someone who merely licensed a project as open source hardware. Doing so would endeavor ill will in the open source hardware community and make even people in educational settings a bit less comfortable using the software package out of fear they might step across a licensing line by mistake and get sued.
That would change if the designer started selling the project commercially – such activity would arguably violate both the spirit and the text of the license. It would also change if someone was pretending to put files online for anyone to use, knowing that their partner would pull them down to start commercial production. But if the creator is just putting the files online and not restricting anyone else from exploiting them commercially it seems unlikely that the software company would go after them.
Unfortunately, a “highly unlikely to actually be sued” conclusion
to a hypothetical license analysis is only worth so much. It would
be great to see software companies come out and publicly embrace open
source hardware, even if created on educationally licensed software.
It might be hard to get it through their legal department –
crafting an open source hardware exception that does not turn into a
massive loophole for bad actors isn’t trivial – but many of these companies have
big legal departments full of smart lawyers. Making it clear that
users are free to use their educationally licensed packages to
contribute to the rich open source hardware ecosystem would be a nice
use of some of that lawyer time. Forcing users to rely on “it is technically a violation but we probably
won’t decide to sue you” for comfort is not an ideal outcome.
Bonus Analysis
Reading this, you may ask yourself “but what if at the time I’m using the software I’m not thinking about open source hardware and only decide to open source the files later?” This is a perceptive question and one that highlights the interesting (at least to me) temporal intent nature of parts of copyright law. I would argue that what matters is your intent at the time you are using the software. If you change your mind once your use of the software is done, the nature of the license shouldn’t matter because you are not making any copies of the software that require licensing.
Another version of this issue is illustrated by CD ripping. If you rip a CD you own in order to shift it onto your phone for later listening, that copy is pretty clearly fair use. However, if you rip a CD with the intent of being able to return the CD to the store or resell the CD while keeping your new digital copy, that copy probably isn’t fair use. The temporal issue arises if you rip the CDs with shifting intent but then decide months or years later to resell the CD. The digital copies were legitimately created - they probably shouldn’t become retroactively infringing just because you changed your mind later.
Of course, if any of this was ever litigated it would turn on proving true intent at the time of copying. That’s never easy.