OHS: Open hardware legal issues

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Free software projects sometimes struggle with licensing issues. The open hardware community is beginning to face the same kinds of difficulties with copyrights and patents that the free software community has grappled with. A presentation by John Wilbanks at the Open Hardware Summit (OHS) in New York discussed how these concepts apply to open hardware, and how to surmount the issues using open-source tenets and a "commons" of patent tools and free licenses.

Open hardware is a relatively new concept. The OpenCores project and website started in 1999, primarily as a collecting point for Verilog IP description files, but produced no actual hardware. SPARC enthusiasts remember when Sun "open-sourced" the SPARC implementation, leading to the OpenSPARC processors in 2006. Since then, a large spectrum of devices ranging from basic electronic designs to microcontrollers up to entire FPGAs has been created as open source. This means that the designs, in the form of design documents, CAD files, etc., are open in terms of shared ownership, community development, ready availability, low or zero cost, and permissive licensing, just as open-source software describes source code with those same characteristics.

The legal issues, however, are tricky, as anyone involved in open-source software can attest. This is particularly true in a field in which an invention can be protected by either a copyright or a patent, or even a combination of both, and that copyright or patent can be licensed in a number of ways. Hardware has traditionally been covered under patents, although that is changing as hardware is increasingly described with documentation rather than physical evidence.

The expense of a patent is beyond the reach of most individuals to obtain and defend — that has normally been the domain of corporations with lawyers. Even if a creator wants to open up a design, the cost of getting a patent is restrictive and the legal issues around patents are daunting. Copyrights, on the other hand, are free and applicable to any creative work as soon as it is published, and can sometimes be applied to hardware design documents.

John Wilbanks is the VP for Science at Creative Commons, a non-profit corporation whose stated goal is "making it easier for people to share and build upon the work of others, consistent with the rules of copyright." It accomplishes this by providing a set of free licenses and legal tools to enable creators of hardware, software, documents, and pretty much anything else copyrightable to "share, remix, use commercially, or any combination thereof," using the concept of a commons, a traditional public meeting ground in which resources are collectively owned and/or shared. Creative Commons is addressing the challenges of open hardware by creating a commons of patent tools to realize those same goals for patents.

Wilbanks spoke at the OHS about legal issues when open source concepts are applied to patents. He started by describing the problems with patent protection and restrictive licenses on "not-open-source hardware" — the traditional method for protecting hardware inventions:

• incrementalism — incremental innovation based on prior art as patents expire and are renewed on new versions
• artificial scarcity — the goal of restrictive licenses in general: to restrict access to something of value in order to make it appear more valuable, such as Internet access at an expensive hotel
• "thickets of patents" — sets of restrictive patents built on intertwining layers, making them very difficult and expensive to change or challenge

At OHS, Wilbanks described an alternative method for both protection and ensuring the ability to share by creating "zones of prenegotiated patent rights" in the form of licenses based on language that is agreeable to both the licensor and the licensee. "The whole issue of commons is coming to open source hardware" and other fields in terms of a patent tools commons, a set of licensing tools being developed by Creative Commons. CC has set up two new patent tools to help hardware creators who use patents to navigate through the maze in order to open their designs in a safe way. The Creative Commons site describes the tools as follows:

"Untested licenses are like uncompiled code," Wilbanks says. "The idea is to create zones of prenegotiated patent rights, first to begin cutting through thickets [of patents], second to eliminate problems of scarcity, and third to really start to get to the point where if you're trying to figure out what you want to do, you're not exposed" to patent issues. The Model Patent License in draft form provides sample language for a public license offer that is "capable of being accepted by anyone on a non-discriminatory basis and without additional negotiation," offering benefits to both parties. These tools enable individuals to approach hardware patents similarly to the ways corporations have traditionally done, but without the high associated costs.

Wilbanks believes that open hardware can succeed "when you do legal licensing around these systems [to] lower the transactional cost, increase the transparency, and get the need to have a highly skilled lawyer negotiating on your behalf out of the way." As with software, open hardware licensing boils down to the creator's intent. Rather than depending on safety "from the barrel of a license," Wilbanks says that to be adequately protected, open hardware projects should follow some solid basic open-source principles: start open (as opposed to starting proprietary and open-sourcing later), publish early and often (to create prior art and encourage sharing, respectively), and use prenegotiated patent rights to protect both ownership and the right to share, rather than depending on licenses for protection. Using licenses and prenegotiated rights lowers the cost of making hardware open, which also lowers the barrier to entry. Those ideas will be refined further as the open hardware movement gains traction.

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