Last week Sparkfun ran a piece on their blog called “FaKey Makey” taking a deep dive into what appears to be an unauthorized derivative of the popular MaKey MaKey hardware accessory.  Briefly - and I commend the entire thing to you - it concludes that a product called the MC2 Circuit Beats manufactured by MGA Entertainment is a derivative of the MaKey MaKey that fails to give MaKey MaKey credit as the source of the idea.  

In addition to the really impressive forensics work in the post, the incident serves as a nice opportunity to reflect on the limits of open source hardware licensing.  It may also help highlight why the Open Source Hardware Association is moving towards a certification model and not an approved license model.

But first…

Some quick background may be helpful.  The MaKey MaKey is a clever bit of hardware that lets you use all sorts of physical objects as input for your computer.  If you are itching to turn those bananas in your kitchen into a piano or use the walls of your living room to control a video game character, the MaKey MaKey is a good place to start.  

It is also open source hardware, which means MaKey MaKey makes things like their schematics available under a CC (in this case attribution, share-alike) license.  

For the purposes of this post I’m going to assume that everything in the Sparkfun article is true and that MGA 1) made something that can trace its lineage back to the MaKey MaKey, and 2) failed to give MaKey MaKey attribution for that history.  Keep in mind that either of those could be incorrect.  I’ll do my best to update this post if I become aware of evidence to the contrary.

Moral/Social Issues

The moral and social issues surrounding open source hardware, derivatives, and attribution can be complex, so I’m going to skip over them here.  Instead, I’m going to focus on the legal and licensing aspects of what happened here. Specifically, did MGA - the company that made the derivative product - violate any licenses?

Does the New Board Violate MaKey MaKey’s License?

Spoiler: I don’t think so.  But I’ll go deeper than that.

MaKey MaKey puts out its schematics under a CC license.  It is important to understand what that really means.  A CC license is a copyright license and can only control the use of works that are protected by copyright.  In this case, the schematics are covered by copyright.  However, this does not mean that the MaKey MaKey itself is covered by copyright. In fact, as a functional object, it is not protected by copyright (there are some clever lawyer arguments that one could use to chip away at this simple statement, but in the interest of clarity I’m just going to work under that assumption).  That means that the license on the schematics are irrelevant to the object itself.

What does that mean?  If you copy MaKey MaKey’s schematics without giving MaKey MaKey attribution, you have infringed on their copyright.  However, if you just decide to copy the MaKey MaKey itself, the license they attached to their schematics requiring attribution doesn’t matter.  You have no legal obligation to give MaKey MaKey anything.

Even if MGA copied MaKey MaKey’s schematics, as long as they kept the attribution on the schematics they probably did not have any obligation to give attribution on the product itself.

Is it Bad that MGA Can Copy MaKey MaKey?

I don’t think that it is.  The fact that hardware can be copied is a feature, not a bug, of IP law.  

Unless MaKey MaKey had a patent on its core functionality, the fact that MaKey MaKey is open source hardware doesn’t really have an impact on MGA’s ability to copy it.  While the schematics  may have made it easier, the Sparkfun post suggests that a determined copier probably could have figured out what was going on without them.

On the flip side, I’d be willing to bet that MaKey MaKey’s openness has helped it grow a community and a market.  I also suspect that this benefit outweighs whatever “cost” making it easier for copiers to access schematics imposed on them.

This incident also serves as a reminder that hardware is open by default.  If you’ve even been frustrated with copyright restrictions, this world of open by default can feel liberating and loaded with possibilities.  If you have ever reverse engineered a piece of hardware without asking permission from the manufacturer first, you understand what that openness means.

Finally, remember that openness goes both ways.  The same legal structures that make it hard for MaKey Makey to protect its core functionality with IP makes it hard for MGA to protect whatever improvements they have come up with.  Even if MGA does not release the schematics, it is likely that MaKey MaKey can reverse engineer them and incorporate them into a future version of MaKey MaKey. (note: maybe do not do this without first talking to a lawyer).  To me, that’s an example of how the openness ecosystem in hardware can extend well beyond a core group of open source hardware devotees.  

Would A Different License Change This Analysis?

I don’t believe so. The core challenge remains that you need a work protected by copyright as a “hook” for any restrictive copyright license.  Even a non-commercial restriction on the schematics probably would not stand in MGA’s way.  (side note: would downloading a copy of the schematics in order to make a commercial product based on those schematics - as opposed to commercially selling the schematics themselves - violate a non-commercial CC restriction?  I don’t know but I’d argue against it).

Would an Open Source Hardware Certification Help in this Situation?

Yes and no.  As I hope this post makes clear, one of the reasons that the Open Source Hardware Association is looking towards certification is because copyright-based hardware licenses can leave a lot out.  Those exclusions can come as a surprise to the people who are using the license.

A certification will not directly prevent someone from making an unattributed derivative of a piece of hardware.  Of course, in many cases, neither would a license. The open by default nature of hardware makes that sort of condition very hard to enforce without patents.

However, to the extent that people see a Open Source Hardware Association certification as valuable, it can help distinguish the MaKey Makeys of the world from the MGAs of the world.  People value openness - and value it more every day.  If a product like MaKey MaKey can stand up and say that they truly are open, it can - I hope - help expand their market reach.

For now, it seems like MaKey MaKey and the MGA board can coexist.  That’s a good outcome too.  My real interest in this incident is that it gives another excuse to do concrete thinking about how open source hardware and licensing can really work.

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