Open source hardware traces its roots directly back to the open source software community. Despite these roots, hardware is very different from software.  As a result, while some of the norms of open source software port easily to the world of hardware, some are an imperfect fit.  One of the areas of imperfect analogy is in the world of licensing. Fundamentally, this is because open source hardware is not as completely wrapped up in copyright as is open source software.  As a result, open source hardware licenses generally lack one of the two major features of open source software licenses.

Software Licenses

Software is, as a category of work, eligible for automatic copyright protection the moment it is written.  As a result, software can be thought of as “born closed.”  By default, in most cases using (which requires copying) someone else’s software without permission violates their copyright.  In order to change this default state, creators of software use licenses to allow other to use their software without risk of a copyright infringement lawsuit.  Fundamentally, these licenses can be thought of as binding promises not to sue a user for copyright infringement as long as the user complies with the terms of the license.

These license serve at least two purposes.  For users, licenses clear the threat of a copyright infringement lawsuit by laying out clear rules of use. Users can be confident that as long as they follow the rules of the license, they cannot be sued for copyright infringement by the original author of the software.

For creators, licenses let the software out in the world while still allowing the creator to exercise some control over the software via license conditions.  The creator gives up some control over the software, but can be confident that future users are required to comply with whatever limitations incorporated into the license (be it sharing future work, buying the creator a beer, or whatever).  

The single license achieves both of these purposes: assuring users that they will be free of infringement liability, and assuring creators that future users will have to comply with restrictions that the creator cares about (this can also be thought of requiring future users to ‘follow the rules’).

Hardware Licenses

Unlike software, hardware is not completely protected by copyright. While some parts of hardware are eligible for copyright protection, many functional elements simply are not.  While they may be eligible for patent protection, since (unlike copyright protection) patent protection is neither free nor automatic, generally speaking many parts of hardware will be unprotected by any type of intellectual property.  This is especially true for open source hardware, where the creators are unlikely to elect to spend time and money obtaining patents on their goods.

In many ways this is a positive thing.  Unlike software, hardware is largely “born free” and does not require a license to make it available to the larger world.  This is the reason that you can legally hack hardware you own in a what that does not really have a parallel in the world of copyright.  However, this very freedom complicates open source hardware licenses because it makes them harder to enforce.

That does not make open source hardware licenses without value.  They can still accomplish the first purpose of open source software licenses, which is to relieve end users of anxiety related to IP violations that might occur with use.  To the extent that the hardware is protected by some sort of intellectual property rights (and many piece of hardware have at least some protected component that this would be relevant for)*, the license can give users confidence that using the hardware within the limits of the license will prevent them from being sued for infringement.

However, most open source hardware licenses are less good at achieving the second purpose.  As noted above, while many parts of any given piece of open source hardware may be protected by copyright, many parts will not. That is especially true for functional parts of the hardware.  Since these parts are not protected by IP, using them does not require permission from a rightsholder (because that rightsholder does not exist because there are no rights to hold).  As a result, there is no penalty for violating the terms of the license that purports to limit the use of these parts.

The outcome of this is that in many cases end users will be able to violate the restrictions that a creator places on a piece of open source hardware without fear of an infringement lawsuit.  In these instances, the open source hardware license has failed in that second purpose outlined above because they do not allow creators to control the behavior of downstream users.

Can This be Fixed?

To give a lawyerly answer, that depends on your definition of “fixed” is.  One way to fix this problem would be to make it easier to get some sort of IP protection on hardware.  That would make it more likely that licensees would be able to enforce the terms of their licenses. However, because the law works for everyone not just people doing open source hardware, any expansion of IP protection on hardware would also be used by people who don’t care about openness to make hardware more closed.  As I’ve written a number of times, it would be tragic if the legacy of open source hardware was to make hardware more closed.

The other way to fix this problem is with education.  The inability to impose conditions on end users is only a problem if creators have the expectation that they can impose conditions on end users.  That expectation creates a likelihood of frustration for creators who think that a bad actor is violating their license, just to find out that their license does not really apply.  However, if creators understand the purposes and limitations of open source hardware licenses, that expectation can be eliminated (or at least reduced) and the problem is essentially resolved.

That’s the direction I’m inclined towards.  Admittedly it requires altering norms and expectations that have been built up by open source software for decades.  However, it won’t be the the only time that open source hardware has to alter some of what it inherits from open source software.  

*This highlights a second major educational challenge around open source hardware. With open source software, teaching people about IP is fairly easy: they can assume that all software is protected by copyright. Hardware is much more complicated.  While any given  piece of hardware is likely at least partially protected by copyright, what that copyright actually covers will be somewhat idiosyncratic to the hardware itself.  As a result, it is going to be hard to develop everyday rules of thumb for what open source hardware licenses really do and do not control.  I’m hopefully that at some point a taxonomy of some sort will emerge, but that probably won’t happen anytime soon.

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