LWN: Comments on "Open Source Hardware Definition released, first Open Hardware Summit"

I'm confused

bronson — Wed, 21 Jul 2010 16:40:47 +0000

Dang, my program is only 54 bytes. Looks like I'm going to have to unroll some loops for it to be considered creative.

I'm confused

nye — Wed, 21 Jul 2010 13:17:41 +0000

Thanks for summarising; this seems fairly sensible.

I'm confused

BrucePerens — Wed, 21 Jul 2010 00:45:31 +0000

I am a dyed-in-the-wool 56-byte-ist! We have to draw the line somewhere! To the barricades! Those who are not for us are against us! :-)

I'm confused

dlang — Tue, 20 Jul 2010 23:54:13 +0000

I think it would be safe to assume that at some point larger than 55 bytes there is creativity involved. saying that it's involved for all programs larger than 55 bytes is not the same thing.

I'm confused

BrucePerens — Tue, 20 Jul 2010 23:44:53 +0000

The appeals court in Lexmark v. Static Control Components ruled that the 55-byte program was functional rather than creative, and thus copyright protection was not applicable. This is sensible for a 55-byte program. If you want to read more about functional vs. creative, I suggest Computer Associates Inc., v. Altai. However, note that CAI v. Altai is regarding non-literal copying. Most copying is literal, and of programs longer than 55 bytes, and you can assume there is significant creative expression within the program.

Clear now

man_ls — Tue, 20 Jul 2010 23:38:10 +0000

Thanks for the excellent summary. In that case, open hardware has a meaning in these areas. I would guess that the most useful part is firmware, and the FSF has already addressed that problem (it is pure software, after all).

I'm confused

dlang — Tue, 20 Jul 2010 23:05:08 +0000

quote:
And of course a firmware program is copyrightable.

not always, see the lexmark printer ruling where the judge ruled that since lexmark was using the firmware on the cartridge as a access control device, competitors were allows to copy it bit-for-bit in order to interoperate

I'm confused

BrucePerens — Tue, 20 Jul 2010 22:39:04 +0000

OK, I will take this on.

It's a matter of how complex the design is. If it's just an electronic circuit that you can duplicate with discrete components or by writing new VHDL for a gate-array, the only viable protection would be patent. If there isn't a patent, you're free to copy.

If it is an integrated circuit VHDL program, it can be protected by copyright so you'd have to write your own. Similarly, the photographic mask or its equivalent used in some IC fabrication processes is copyrightable.

And of course a firmware program is copyrightable.

I'm confused

man_ls — Tue, 20 Jul 2010 22:31:15 +0000

O RLY?

Well, what do I know. Perhaps you can distribute cloned devices. I am not sure of any instances.

[Citation Needed]

I am not able to provide any evidence. A quick Google search yields this or this, or this; purely anecdotal. It would appear to be a gray area. Actually, I was hoping that someone (maybe you?) would provide an authoritative citation, that is why I ended the paragraph with "or am I missing something?".

In case designs (and devices implementing them) cannot be copyrighted, then this "open hardware" thing is pure nonsense.

I'm confused

nye — Tue, 20 Jul 2010 12:23:04 +0000

>But you cannot distribute a device if you don't have rights to the design.

O RLY?

>You cannot just reverse-engineer the circuitry of an electronic device and start selling clones

[Citation Needed]

Open Source Hardware Definition released, first Open Hardware Summit

BrucePerens — Mon, 19 Jul 2010 18:53:30 +0000

a license from Microsoft to give you a Windows CD I bought. (No license is required for that).

You mean the first-sale doctrine. This is not particularly an issue for Open Source licenses. There is one potential exception, which is the degree to which you are required to comply with the GPL (for example) when an embedded device containing GPL software is sold. My advice to customers is to err on the conservative side and provide GPL fulfillment on behalf of all third parties who might resell their devices.

A license to run a program that I downloaded.

The problem here is that the incidental copying required to run the program is controllable under copyright law.

Coming back to the current topic: a license to modify a piece of hardware.

In the case of an open hardware license, it's a license to create a derivative work of the copyrighted plans.

Unless there's a patent involved, no such license exists.

Well, there is the matter of contractual licenses on embedded firmware, in which you might give up any number of rights. Or DMCA, which can be applied to embedded firmware pretty easily. The license exists, it is just that you may have the right, in a particular jurisdiction, without the license. Since you might not have such a right by default in the future, the license may be useful to have.

I'm confused

man_ls — Sun, 18 Jul 2010 20:46:21 +0000

What they really don't understand is that Open Hardware is only applicable to the plans, not the actual hardware, unless you have a patent on the hardware.

But I definitely see a need for licenses that cover hardware devices, and which should force the manufacturer to release all design documents (electronic schematics, full specifications...) along with the hardware.

Our old family stereo Philips AF-571 came with full schematics so you could fix the thing. Nowadays a lot of hardware comes with weird screws and resin blobs so you cannot even look inside! A way to reverse the tendency is overdue.

For example, the Gray-Hoverman antenna is said to be under GPL3, but there are not actually any restrictions that can be enforced upon a manufacturer.

But you cannot distribute a device if you don't have rights to the design. You cannot just reverse-engineer the circuitry of an electronic device and start selling clones. So there actually are restrictions that can be enforced, and AFAIK copyright applies to designs, or am I missing something?

If so, it would make a lot of sense to have a license akin to the GPL. Open source code -> open design, compile -> manufacture, copyleft -> copyleft.

Open Source Hardware Definition released, first Open Hardware Summit

giraffedata — Sat, 17 Jul 2010 06:54:32 +0000

So, I can't agree that the license provisions have no existence in law.

I don't know what license provisions you're talking about, or what you think I said that you disagree with, because I never mentioned a license provision and I didn't give an example of the imaginary licenses I referred to. But here are a couple: a license from Microsoft to give you a Windows CD I bought. (No license is required for that). A license to run a program that I downloaded. Again, no license required. Coming back to the current topic: a license to modify a piece of hardware. Unless there's a patent involved, no such license exists.

I don't think judges have a problem with "make" as used.

I'm sure they don't, though we have to use our imaginations to find a way that the sentence in question would come before a judge. I was only talking about how it's evidence the author wasn't thinking clearly about the distinction between a mouse trap and a model of mousetrap or blueprint for one.

I think "material" will expand in meaning long before "tangible" does. Tangible is a very concrete word, which people use today when all the other words are too flexible. If tangible ever comes into common use for things that are intangible, we'll just have to think of another word to replace it.

But if you're saying that rules we apply today to tangible things will start applying more to intangible things, I agree with that.

Open Source Hardware Definition released, first Open Hardware Summit

BrucePerens — Sat, 17 Jul 2010 04:13:53 +0000

If people mean copyright and patent licenses, they should say "copyright and patent licenses" to avoid confusing people. Saying just "license" causes people to imagine types of licenses that don't actually exist in law.

Like contract law.

Sure, I know that the GPL, specifically, is meant to be a straight copyright permission, and FSF, if it were running the case, might decline contract law. But every time I'm at a meeting where attorneys discuss this, there is lots of argument that contract law does apply even to GPL. So, I can't agree that the license provisions have no existence in law.

Calling them "copyright, patent, trademark, contract, and moral rights" licenses doesn't really make the situation any clearer. :-)

I don't think judges have a problem with "make" as used. As a philosophical point, the definition of "tangible" is likely to stop being related to "material" as technology improves.

Open Source Hardware Definition released, first Open Hardware Summit

giraffedata — Sat, 17 Jul 2010 02:37:56 +0000

If people mean copyright and patent licenses, they should say "copyright and patent licenses" to avoid confusing people. Saying just "license" causes people to imagine types of licenses that don't actually exist in law.

I'm not sure what you're getting at with the Buzz Lightyear example. I mentioned a sentence that talked about making "tangible artifacts," aka hardware. It would take a huge stretch of language to call the Buzz you worked on tangible, since the word is used precisely to differentiate what you worked on for years from the thing you eventually held. You can't make the thing you're holding in your hand -- it's already made.

Looking at the sentence again, I see that it's written in the collective plural, which means it's possible to parse it so that it makes sense. You can obviously make a tangible artifact, and so you can make one whose design has been released, blah blah blah. But there's some kind of causality problem looking at it that way, since (according to the sentence) it had to be tangible (i.e. made) in order to be open source hardware and it had to be open source hardware in order for someone to make it. I still think the author was mixing up actual tangible hardware and the intangible concept of that model of hardware.

Open Source Hardware Definition released, first Open Hardware Summit

BrucePerens — Fri, 16 Jul 2010 21:09:11 +0000

Actually, it's really fortuitous that most Open Source licenses did not explicitly differentiate copyright from patent when they were written. We got an implicit patent covenant that we weren't really planning for, even in licenses as simple as the MIT or BSD. This is both through the doctrine of patent exhaustion, and because the grant of rights doesn't differentiate between copyright and patent and thus covers both.

I am similarly happy that the DFSG / OSD doesn't restrict itself to copyright.

What license we're talking about is clearer if you go to the original document, which is here. Read the whole "social contract" before the guidelines.

"Make" is actually referring to a class of transformative activity.

At Pixar, we "made" a lot of purportedly physical objects that had no real existence for a time. We handled them in a virtual way, and told compelling stories with them using the tools of the visual idiom. Then, some time before the movie came out, we sent the data to a toy company that adapted them to molds and produced physical objects. So, I knew "Buzz Lightyear" in three dimensions for years before I could actually hold one. One can argue, quite compellingly, that Buzz was "made" in different ways at different times, and that the object existed in a virtual form before the physical one, and then in different physical forms that have been made from the same plan over the years. Not just polystyrene Buzz, but gummy Buzz, etc. Giving permission to make it would have made sense.

We definitely want to have licenses that make grants and restrictions regarding patents, not just copyright.

Open Source Hardware Definition released, first Open Hardware Summit

giraffedata — Fri, 16 Jul 2010 20:47:18 +0000

What they really don't understand is that Open Hardware is only applicable to the plans

Their confusion is deeper than that. What they have written is not clearly applicable to plans. The definition refers to "the license" in many places without saying what license and there isn't any license that logically fits the sentence. The introductory paragraph refers to "licenses for Open Source Hardware." What licenses are those?

Another way I see a lack of mental clarity is in the sentence,

tangible artifacts ... whose design has been released to the public in such a way that anyone can make, modify, distribute, and use those things.

You can't "make" the artifact because it already exists. Clearly it means to say "copy," but it shows the author has mixed the hardware and the design of it in his mind.

I blame open source software people for some of this confusion. They routinely talk about "the license" and let people imagine laws that don't exist. I wish people would use the full name "copyright license" when they're talking about a copyright license. They also speak of "violating a license" as if the copyright license is a set of restrictions a person by right attaches to something he distributes. It's actually the opposite -- a set of permissions. "Violating copyright" would make that more clear.

Open Source Hardware Definition released, first Open Hardware Summit

giraffedata — Fri, 16 Jul 2010 20:30:11 +0000

Would GNU/Linux be considered open source, if the tools used to build it were not open source?

Right, so your concern has nothing to do with the hardware adaptation of open source software, because the same concern exists in software. I've wondered for a long time how the "preferred form" requirement applies to extending the Linux kernel by writing code in a language for which people don't have a compiler. Or don't know and can't learn the language.

Open Source Hardware Definition released, first Open Hardware Summit

gbraad — Fri, 16 Jul 2010 06:14:38 +0000

This does not go far enough; When a 'proprietary CAD program' is used they ask to use an 'open document format', like PDF? Use an open toolchain to design and create the hardware. KiCad is not perfect, but usable. At best, improve it.

This effort Still much like trying, but not actually doing copyleft design of hardware. Too much a level of hobbyism involved with this. It will be difficult, but one day we should also have our own synthesis tool. I have to admit we are not there yet, but Fedora Electronic Lab shows that most of the tools needed for copyleft hardware are mature and usable enough.

Open Source Hardware Definition released, first Open Hardware Summit

pabs — Thu, 15 Jul 2010 05:36:47 +0000

Some comments from someone in the business of producing hardware that runs FLOSS:

http://www.bunniestudios.com/blog/?p=1224

Open Source Hardware Definition released, first Open Hardware Summit

BrucePerens — Thu, 15 Jul 2010 04:28:58 +0000

Forget about that. What they really don't understand is that Open Hardware is only applicable to the plans, not the actual hardware, unless you have a patent on the hardware. For example, the Gray-Hoverman antenna is said to be under GPL3, but there are not actually any restrictions that can be enforced upon a manufacturer. Only upon someone who redistributes a modified version of the plans.

Open Source Hardware Definition released, first Open Hardware Summit

ahvezda — Thu, 15 Jul 2010 02:32:01 +0000

Hmmm, every time the topic of "open source hardware" comes up, I wonder about:

From section 1. Documentation:

...
The documentation must include design files in the preferred form
which a hardware developer would use to modify the design.
Deliberately obfuscated design files are not allowed. Intermediate
forms analogous to compiled computer code -- such as printer-ready
copper artwork from a CAD program -- are not allowed as substitutes.
...

I like the wording about "intermediate forms" not being allowed, but what about design files that were created using proprietary tools? Are these design files acceptable or not for the design to be considered "open source hardware" compliant? What if the the proprietary tools have usage clauses such as "only for non-commercial usage"?

Would GNU/Linux be considered open source, if the tools used to build it were not open source?