Monday, 25 January 2010

Grand Unifying Theory of Open Source Hardware Rights

This is a small excerpt from the Open Source Hardware Economics book that I've been writing. There have been a number of posts and comments in recent weeks about open source vs. intellectual property, and I think there's a lot of confusion. This small excerpt was created as a result of notes I made while reading line-by-line through dozens of "open source" licenses, from the web, from companies, and from law firms. I've spent more than a hundred hours pouring through these contracts, so hopefully others don't have to! I hope this helps...

Open Source and Intellectual Property are one and the same. Open Source is the process of granting rights, Intellectual Property is in some ways the process of restricting rights. They aren't opposite ends of a spectrum, they're just different ways to frame the exact same topic. Like the glass half full vs. the glass half empty, you're still talking about a glass and some water. Likewise, with Open Source and Intellectual Property, we're talking about information, and the rights associated with it as it sits, encapsulated in a set of source files that occupy disk space. Creators of these source files (like you) have a set of decisions to make. Some of these decisions you make knowingly, after thinking about them. Some of these decisions you make instinctively, immediately without much thought. The point is, you’re making decisions whether you think about them or not. Let’s run through the types of decisions you’re making, one by one. Each of these decisions is a decision about Intellectual Property rights.

I'll try to frame each from the perspective of Intellectual Property as well as from the viewpoint of "Open Source":

Entity – Can anyone use the files and information you’ve created, or are there restrictions on the types of entity? For instance, is the information for individual use only, or can institutions and companies use it too? Can any government use the information, or are there restrictions imposed by trade and political policy that restrict some governments or groups of people?

Branding / Attribution – If someone else takes the work, must they provide recognition and attribution back to the original author, or are they free to take it, brand it in a new way, and distribute it without recognition or attribution?

Naming – Can someone rename the project once they build it themselves, or must they keep it named the same thing the original author named it?

Field of Use – Can the project or information you provide be used in any field or domain of use, or is it restricted? Can someone build missiles and weapons that kill people with your idea, or are they restricted to public service and commercial domains? Can people use your idea in any industrial use, or only in specifically defined, narrow ones that don’t compete with you?

Share-Back – Can someone make changes to your idea and keep their changes to themselves, or are they obliged to share them back with you, perhaps for inclusion in future versions?

Replication – Do you restrict people from copying or reproducing the information, or can they make as many copies as they want?

Reselling / Transferability – Can the information be resold to others, or is it permanently assigned to a single recipient, and non-transferrable?

Economic Rights – Assuming someone else has a version or copy of the information, can they sell their copy, or resell multiple copies for a profit? Can they charge any price at all, or are they restricted to transferring the information in a non-monetary transaction?

Ownership or Leasing – When someone else has a copy of the information, do they own it legally, or are they only temporarily leasing partial rights from someone else, the original author, or the distributor?

Upgrade Rights – Assuming there are versions of the information, and those versions change over time, does owning a previous version of the information entitle you to all future upgrades, or must future upgrades be re-evaluated, re-purchased, or re-negotiated under new contracts.

Derivative Licensing – If copies or derivative works are permitted, and if they are allowed to be distributed to others, does the original creative author require that the derivative works carry the same license, or are future versions permitted to be covered under different licenses?

Jurisdiction – Does the contract covering information rights remain in effect anywhere on the planet, or universe, or does it only apply in certain geographical jurisdictions? If the contract is contested, and the case goes to court, where will the court case be held, on a boat in the mid-Pacific (you’ll get away with anything), or in Delaware (pro-company), or in Texas (pro-individual inventor), or in New York (the person with the bigger budget wins), or in Washington, DC (pro-US government, pro-lobbyist), or in one of the Norwegian countries (anti-information restrictions, pro-information freedom), or in sub-Saharan Africa (the more guns and money you have, the better your chances of winning. And living).

Target – Your defining a set of information rights. You could be addressing anyone who could possibly ever come into possession of the information, or you may only be defining rights and freedoms for a certain group of people. You might not care what a non-profit organization does with your idea, but you may be very careful about restricting rights for commercial entities.

Timing – Do the rights last forever, or are they restricted in time. For instance, do the rights last for a fixed number of years, as long as the inventor or creator is alive, as long as Mickey Mouse if protected, or for as long as the government who granted those rights is around?

Fees – Does it cost anything to acquire, retain, or perhaps modify the rights granted to you? Or are the rights free to acquire, free to retain, and free to modify?

Platform and Stack – Do the rights cover the entire platform, and the entire system and ecosystem, or are other licenses permitted to cover different rights throughout the system? For instance, if a piece of software is Open Source, does it require that it be run on an Open Source operating system, or can you run it on a proprietary one? Does it have to be compiled with an Open Source compiler or can the tool-chain be closed source and proprietary? At the extreme, perhaps the license requires that everything, from the programming language, to the instruction set architecture, to the silicon masks that built the processor, be completely consistent and covered by the same self-consistent rights.

Enablement – How much is required to be disclosed by the author? Is it sufficient to merely provide the painting, or must the artist describe how the painting was drawn? This is sometimes called the “Mona Lisa” test. To paint the Mona Lisa, you get paint, assemble brushes, set up a canvas, and then … paint the Mona Lisa. In patent law, the concept of enablement requires that anyone attempting to get a patent, must describe accurately and sufficiently in the patent text itself, how a “person reasonably skilled in the art” to recreate the invention on their own.

Editability – Does the author of the information permit the information to be edited, or must it remain in its original form for the duration of its life? If it’s allowed to be edited, can anyone edit the information, or only certain people? Gun laws and gun restrictions require that only certain people, accredited gunsmiths, be allowed to maintain and modify, and fix guns.

Workaround and Trespassing – Are there punishments in place for someone who tries to work around mechanical or security restrictions, like digital trespassing? What burden of proof is required to prove that someone has violated the terms of the contract? Do you have to catch them in the act, or is it enough to associate them with the information indirectly?

Identification and Authentication – Does each copy of the art require a unique identification number, of can the information be distributed widely without identifiers? Alternatively, must the information be “activated” with codes or passwords before it is legible?

Customization and Standardization – Can the information be tailored to specific uses or applications, can it be tweaked, are there different versions of the information, or are they all the same?

Requisite Skillset – Can anyone take advantage of the information with basic education? Can children utilize the information? Must you require years of education and millions of dollars of specialized equipment in order to use the information?

Visibility and Transparency – Is the information understandable or digestable simply by looking at it, or must you peel back a cover or lid to peek inside? Do you need a key, a special set of tools or programs, in order to reverse engineer it before you can understand it, or is the information simple to convey, and described in common formats or vernacular?

Taxation and Registration – During transfer of the information and files, are there taxes or government policy-related registrations required? Owning a map of the world’s nuclear facilities, or blueprints for how to build a nuclear bomb, tend to be restricted and regulated by government authorities.

Each of these dimensions, or attributes, is a piece or part of the terms and conditions imposed on a piece of information by its creator, author, or inventor. These terms are collected from real contracts, from intellectual property law concepts and constructs, and from the field of practical contract drafting. These are the terms and conditions debated in court, addressed by the district and Supreme Courts in rulings on intellectual property rights. This is clearly not a complete list. There are many other concepts in intellectual property theory and Open Source that are clearly not addressed in the list above. That’s ok, this isn’t meant to be an exhaustive list. Rather, it’s meant to be a 90% list. These are the issues that constitute the majority of intellectual property debates and disputes that relate to Open Source and information rights.

This list of attributes is meant to convey one point: Open Source contract terms and conditions are not straightforward.

These attributes are not clear cut, and they are not all created equal. Some are not enforceable, because it would be impossible to determine, practically speaking, whether someone is violating that term. Other attributes are simply not enforceable because they may be inconsistent with government permissible activity. Violating the terms may be punishable by imprisonment, or fines, or a slap on the wrist depending on your jurisdiction and the severity of the penalty. Strictly speaking, in the US, it is only “illegal” to violate trademark, copyright, and patent law.

Once a framework like this is outlined, a logical next question is, “what constitutes the most open source” set of rights? No matter what anyone says, there is no simple, straightforward answer to this question. It depends on the audience, the target, and the nature of the work. This is a topic of significance on many web forums, where the debate has been waged for years. As you no doubt can tell, this is an emotionally charged issue.

There are “open source” licenses of various flavors, but they tend to address the narrow domain of the file itself, and get fuzzy when it comes to what can be done with that file, how it can be put to use, what it can be used for, or not. Some licenses are better than others, some explicitly address the attributes and dimensions above, while other licenses brush over the surface, skip, ignore, or only briefly touch on the dimensions. This can create ambiguity, and ambiguous contracts breed abuse and hurt feelings.

It is the author’s opinion that none of the current “open source” licenses properly covers “open source hardware” to a sufficient quality standard to be used in a widespread way. Instead, most of the open source hardware licenses in wide use today are merely repurposed open source software licenses! This is a serious problem.

Let’s examine that assertion further in the next chapter.


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