One of the issues that continues to vex the open source hardware community is licensing. The reason for this is simple: licensing in open source hardware is hard. From an IP standpoint, open source software is basically a single blob of stuff comprehensively covered by a single copyright. That means you can pick a single copyright license and be done.
Open source hardware isn’t that easy. It is actually a mix of a bunch of different elements covered by a bunch of different types of IP. That means that you are probably going to need to pick a few types of licenses for a few different parts of your hardware. OSHWA is working on building a tool to make this easier to figure out, but in the meantime I wanted to throw up a quick post setting up a bit of a framework. This framework is largely based on the work that Ryan Lawson and Adam Alperowicz did as students at the NYU Technology Law and Policy Clinic, although all errors are entirely mine.
When you are thinking about licensing your hardware, there are at least four parts that might be involved. That doesn’t mean that every piece of hardware has all four, but at a minimum you should take the time to cross it off the list if it is appropriate.
Hardware. These are the physical elements of your hardware. This might be protected by a combination of nothing, copyright, and patent. If it is nothing, you don’t need to worry about a license. If it is copyright, you should be looking at Creative Commons licenses (note that licenses with Non-Commercial restrictions are not compatible with the open source hardware definition). If it is patent, things get a bit more complicated. The good news is that you don’t just back into a patent. If you hardware is protected by a patent it is because you paid a lot of money to acquire that patent. Talk to the lawyer who got you your patent about licensing options. Not sure what to do? If the CC disclaim and request option existed that would be best. Until then, unless your hardware includes a lot of artistic or decorative elements you can probably skip this.
Documentation. This is covered by copyright. It is a required part of the open source hardware definition. Pick a Creative Commons license and apply it to the documentation. That will let other people make copies of your documentation.
Software. This is also covered by copyright. There are many copyright licenses written precisely for software. Pick an OSI-compliant license and apply it to your software.
Branding. The name of your hardware can be protected by trademark. If you have a trademark you probably do not want to causally license it, because your trademark tells people “this version of X comes from me.” Fortunately not licensing your trademark is totally allowed under the open source hardware definition. In fact, not offering blanket licenses on your trademark is part of what makes open source hardware work because it allows other people to build on your hardware without suggesting that you are responsible for whatever they put out in the world.
And that’s it. Quick and dirty. Wherever you are posting your licensing and documentation, it might make sense to break out the various licenses. You know, something like this:
Documentation: Creative Commons Attribution 4.0
Software: MIT
(note the absence of a hardware license because this imaginary piece of hardware does not have any protectable elements in the physical hardware. I also didn’t license the imaginary trademark that is connected to the imaginary hardware.)
Thoughts, questions, or corrections? Hit me up. Want more? Keep an eye on OSHWA, where we are working to build out a much less dirty (but if appropriate to the use just as quick) version in the coming months.
*This title is not a lie. This guide is quick and it is dirty. That means that it doesn’t contemplate every possible situation, so there are plenty of right ways to do open source hardware licensing that are not listed. That also means that it is full of gross generalizations that may not apply to you. That also also means that it is not intended to substitute for legal advice. If you are thinking seriously about this issue for your own hardware, it may be worth talking to a lawyer who is your lawyer about how licensing impacts your hardware.