Any specialists on Open Source licenses?

General
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Hi all,

I’m trying to organize a lecture at the University of Tuebingen on alternatives to IP/Patent etc. The focus would be to give participants an overview of “open source licenses” CC, copyleft, GNU GPL, MIT, CERN, etc. and their benefits/problems over classical patents. In a way I think this would also be good for the community, as a lot of people here are inventors/creators that could benefit from a overview on the topic?

So, my message is to ask if anyone is interested in preparing material for this and maybe giving a talk over the internet, in case you are not reasonably close to Germany.

Thanks and regards.
Andre

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Dear Andre,

Really excited to hear that you are organising a lecture like this! I feel strongly that this should be done more. :slight_smile:

Is the lecture happening soon? Earlier this year I organised an evening where we discussed this topic. Depending on how soon you need to have this lecture I might be able to help a little bit. BTW the material I used are under CC BY-SA 4.0 so I can send them to you if you want.

alternatives to IP/Patent etc

By this do you mean you want to talk about a world without intellectual property laws? That is an interesting topic, but the licenses you list (CCs, GNU GPL, etc.) all rely on the existence of copyright law (which is one kind of intellectual property law). There is also the issue of jurisdiction.

Another thing is that “intellectual property” is often a misnomer because it conflates and confuses different sets of rules. Typically those rules are about patents, copyright, trademarks, and trade secrets, which are all different. Do you want to cover them all or just some?

their benefits/problems over classical patents

The licenses you mention deal mainly with copyright-related issues and they are less about patents (though some licenses have clauses that deal with patents, I think). And what do you mean by “classical” patents?

Sorry to sound pedantic and I hope this is not patronising!

And what kind of audience are you expecting? Are they very much the “general public” (in which case, based on my experience, you have to expect them to know next to nothing about copyright and patents)? Or are you aiming for the maker community (in which case there will be some people who think they understand but may still have many misconceptions)?

Anyway, I’d be happy to help if/when appropriate. Thanks for doing this!

  • Pen

P.S. Oh and to be clear, even though I’ve been following licensing issues for many years, IANAL! :slight_smile:

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Hi @hpy,
thanks for the fast reply!

Don’t worry you are not being pedantic at all. Although I’ve been working with open source things for a while, I actually never stopped to read all the legal stuff and really understand the differences of patents/copyright, etc. (I know, ,I know, shame on me… :P). For me it has always been: “create it, put it online, stick some license that seems to fit what you are trying to convey, and done…” Just trying to say that for me some of these terms were meaning the same thing, but from what you are saying they are obviously not… Sorry!

Anyway, here are some answers to your questions:

The lecture doesn’t have a date yet, but it would be somewhen in August.
The audience for this one specifically are a group of people in the University who are going through a “startup program” where they are trying to take ideas and create businesses from them https://www.startupschool-tuebingen.com/.

Today they had a whole morning of IP, patent, design licensing, copyright.

When the person giving the module was asked “what about open source licenses?” the answer was: “uh, geez, there are so many, and they are so complicated, and you have to be really careful to get signatures from every person in an open source project if you are planning to use some part of the project in your idea… So it is quite messy and I would stay away from it…” I don’t know much about IP and patent and so on, but that sounded incredibly wrong and misleading. This is why we are planning this lecture/event.

Another colleague and I could come up with examples, companies, history around open source, and it would be great to have a speciallist talking about the legal aspects of it…

I think the idea would be to make clear to people what is available out there, what can “substitute” or work together with what, and what practical things could be done if open source projects need to be incorporated into new projects/ideas…

Audience wise, I think we could say they have next to zero experience (except for this one module this morning…) --> On a longer term view, we could also think about creating a “booklet/manual” for people trying to get the first steps in these issues?

Thanks again,
Andre

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This punkish: Babel of Licenses and this http://punkish.org/How-Many-Licenses-is-Too-Many might help. Gosh, I wrote those more than a decade ago !!

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Hi @amchagas!

First of all, FYI the material I made (presentation and handout) can be found here:
DOI

The audience for this one… going through a “startup program”… When the person giving the module was asked “what about open source licenses?” the answer was:… So it is quite messy and I would stay away from it…"

I find this response from the person to be very concerning and worrying! To me it perpetuates a big misconception that being “open source” is incompatible with business. This misconception is especially dangerous at such a beginning stage for a “startup program”. But this makes me more glad and thankful that you are organising an open source lecture!

One point I’d like to emphasise is that “open source” is a very loaded term, where if you ask 10 people what it means you will get 10 different answers! In the workshop I ran, we actually used this as an ice-breaking activity where we asked everyone to try to define it and post their answers on sticky notes in the front of the classroom. But what I want to say is: For this lecture I strongly recommend that you very clearly define what you mean by “open source”.

I’d also like to point out that there is a seemingly subtle but important difference between “open source software” and “free software” (as in freedom, not price). Open source generally (but, like I said, it is not well defined) refers to the technical aspect of access to source code, etc., while free software refers to the freedoms that should come with software as defined by the Free Software Foundation: What is Free Software? - GNU Project - Free Software Foundation I believe in any discussion or lecture the freedom aspect should be covered, which is in line with what GOSH is about. And to be clear, free software is about freedom not price, in fact profitable business have been built on the development of free (as in freedom) software.

As you might see in the link above, as part of my workshop I showed the documentary Everything is a Remix. This short film explains the iterative nature of creativity and how creativity is always built on what came before. I really like it because it shows how ideas and creativity do not have clear boundaries, and the problem with copyright and patents is that they forcefully and arbitrarily tries to enforce clear boundaries between creations. An appreciation for this will help one understand the usefulness of “open source” licenses. Let me know what you think!

On a longer term view, we could also think about creating a “booklet/manual” for people trying to get the first steps in these issues?

Very cool! I’ve been thinking about doing something like this for a long time! I envision part of it being a FAQ that addresses common misconceptions (for example, a big misconception is that anything open source has to be free of charge and non-profit). Maybe a web version like a wiki would be good, too?

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Hi there,

The only help I can give you is to suggest this video.

It’s a discussion focusing on Brazilian legislation between Pedro Ramos (a Brazilian lawyer), Bruce Perens and Javier Serrano (who had helped to write the CERN license).

o/

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Hi André, please share this as it would be really most interesting – would be looking eagerly forward to reading it ! Cheers =)

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Whenever I get involved in OSHW licensing discussions I bring up Eli Greenbaum’s article which gives a good summary of the current licenses and their shortcomings.

Greenbaum’s proposed license (a modified Apache license which stipulates a certain mark has to be left on copies of a digitally fabricatable design) is the only license that, aside from the Creative Commons ones, has ever made sense to me in the context of OSHW.

I have huge respect for the people at CERN and their endeavours to promote OSHW of course, but I can’t feel that the CERN OHL muddies the waters. If we have copy-left for hardware fabrication, then we also have copy-right. The OHL is actually not based on copy-right but on contract law, if it is enforceable (which is questionable), what are the implications on people’s freedom to reverse engineer and copy proprietary designs?

I have to say, the person giving this advice is not wrong. Well, getting signatures from contributors (a contributor license agreement) is probably too much for most cases but the rest seems right.

I think my question to students looking at getting into doing HW startups would be: are you ok with getting copied? Because if your design is successful that’s what will happen, open source or not.

If you are ok with being copied then you might as well make it clear to everyone. In the current “market” it might not be much benefit, you might get some community goodwill and, if you are really lucky, some contributors. But if you accept that it will be copied anyway, there are no downsides.

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Hi Kaspar!

Eli’s publication predates the publication of CERN OHL v1.2. and I was inspired by his article while helping draft OHL v1.2. For example, the notion of a Documentation Location Notice to help recipients of physical hardware have access to the design files comes from there. I was later reminded that this idea of embedding some kind of pointer to the design files in the physical object appeared earlier, and I indeed found a trace of it in the CERN OHL mailing list archives. So I should ultimately acknowledge Andrew Katz for it.

Anyway, the thing is: Eli’s criticism of CERN OHL refers to version 1.1 of the licence, and version 1.2 incorporates his ideas.

It all depends on what you want to achieve. The CC family of licences focuses on the documents only (i.e. the design files in our case most of the time). They don’t take into account that these documents will one day be the basis of hardware manufacturing and distribution. As such, they don’t say anything about e.g. patents. If I publish a design under CERN OHL, and you use it, I am promising you (because of the licence I chose) that I will not sue you for patent infringement related to the design I published. With CC licences you don’t get such a promise. Another example: in the CERN OHL we did our best to maximise the chances that a recipient of a physical object whose design was licensed under CERN OHL gets access to the design files. Again, here licences which are not meant specifically for hardware say nothing about the matter.

Please ask me any questions you have about CERN OHL and I’ll try to answer. CERN OHL does not make any assumptions about the underlying rights which could be invoked to give it solidity in a given jurisdiction. Copyright is definitely one of them. There is no relationship whatsoever between CERN OHL and people’s rights (or absence thereof) to reverse engineer proprietary designs.

Agreed! In practice though, licensing is an effort to grant freedoms to a subset of people (those who are willing to respect the law) in exchange of their commitment to fulfil a number of conditions. If I go by our own experience at CERN, that subset of people is a majority. So it is important to be very clear as to what their rights and obligations are when they use this or that licence, either as licensors or as licensees (or both).

Yes, of course, if you are coming from a “permissive” mindset, i.e. if you would use e.g. a BSD licence for your software project, then a licence like Solderpad is perfect. Notice that absence of licence is not a good option because copyright law is “all rights reserved” by default, i.e. you need to use a licence to give users some basic freedoms like that needed for copying and distributing the design files. CERN OHL tries to provide a licensing solution for those who come from a “copyleft” mindset. That is, those who would like that design improvements get fed back for everybody to benefit with the same set of freedoms provided by the initial licensor.

We are currently working on CERN OHL v2, in particular to cater for the absence of a good reciprocal licence for HDL designs. We were planning to open the floor to discussion in the CERN OHL mailing list once we have a good draft, but if there is something you are not happy with in v1.2. I’d be happy to discuss it here and take it into our current drafting effort. Thanks in advance for your help.

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As an ex-CC staff, I can second what Javier is saying. He is absolutely correct in that CC licenses are not advised in any situation where patents may be implicated. That is one of the reasons CC licenses are not appropriate for software. (side note: I use CC0 for my software, but then, I use CC0 for everything I create.)

We dealt with this issue in the open hardware licensing workshop I organized at NYU Law a couple of years ago. See http://punkish.org/science/hardware/workshop/index.html (the final report draft is embedded in that page)

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Hi Javier!

As I said before I really appreciate the thought that has gone into the OHL, and all the efforts you and others at CERN are putting into the OSHW community. I really like the “spirit” the OHL but I think Eli Greenbaum does still have a valid point, event with OHL 1.2.

I must read up on the exact changes that were introduced in 1.2 (and subscribe to the OHL mailing list!) but quickly reading over the discussions and announcements now it doesn’t seem to address the fundamental concern that licenses based on contract law are not enforceable. From Greenbaum’s article:

The formation of a contract, however, generally requires the satisfaction of elements of offer, acceptance and consideration, so contract-based license conditions may not be enforceable against entities not party to the contract

I don’t really think this is solvable without setting some dangerous legal precedents.

And from a higher level it’s what irks me about the OHL. Copyleft is a hack on copyright that turns it on it’s head. But for the manufacturing of physical goods, copyright does not apply (largely – the exception being IC masks). If the OHL is enforceable then what about a license, based on contract law, that says I am not allowed to reverse engineer, copy and sell a proprietary design (that is not patented)? Surely that would be enforceable too!

Yes, an explicit patent grant in the license makes things clear. The CC licenses don’t provide this but the Apache and derivatives do. It can also be achieved with a separate explicit patent grant.

Ah, that’s interesting too. I thought GPLv3 would have that covered. Maybe best to take that discussion to the OHL mailing list like you say though. I feel like we are hijacking @amchagas thread a bit already. :smile:

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I am curious: where exactly did you read that CERN OHL is a licence based on contract law? As I said, CERN OHL does its best to emulate copyleft for hardware. I does not always succeed, but we come as close as we could. Let me give you an example: you take my CERN OHL-licensed design and make some copies, or modify something. In principle, you don’t have that right. The licence says “By exercising any right granted under this Licence, the Licensee irrevocably accepts these terms and conditions.” So you are now a Licensee and must comply with all the clauses of the licence, including those related to manufacturing and distribution of products. Is it perfect? No. It’s as close as we can (today) take OSHW licensing to the idea of copyleft. One thing we should do is write an article so people know better what to expect (and what not to expect) when they use the CERN OHL.

Yes, as I mentioned, Solderpad is a good licence if you are looking for a permissive option, and is based on Apache. And yes, you can add a patent grant to any licence you want, if that is your preferred way. I can see reasons for including the patent grant in the licence text though, especially for reciprocal licences.

So did I! I even gave a talk about it. There was an interesting debate after it. It’s a long story, but it’s mostly about difficulties in mapping to the HDL world, both conceptually and considering the existing technological scene in terms of vendors (FPGA vendors, foundries), tools, flows, etc. I agree this is way out of the scope of the original post, so I propose that, if you have an interest in the HDL side of things you contact me through email. We are not discussing in the CERN OHL list yet, but there’s a group of people in the FOSSi Foundation currently looking at this, and you would be welcome to join in the discussions.

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IANAL of course and I may be using the wrong terminology but mostly from Greenbaum’s article actually. I quoted the relevant section in my previous reply. Greenbaum cites:

Ayass & Serrano, supra note 18, at 72 (stating that the license to design documentation could “be the basis on which to form a contractual relationship” on which the CERN license is built). See also Static Control Components, 615 F. Supp. 2d at 587 (allowing contract claims to proceed even though patent claims were barred as a result of the patent exhaustion doctrine).

Whether it’s the right terminology or not will probably vary by jurisdiction. To me the fundamental worry is still if you can tell me by law to open source my derivative design through the OHL then what is to stop a different license, that works by a similar mechanism as the OHL, telling me what I can and cannot do with designs I have reverse engineered or found leaked documentation of.

To me the freedom to "rip off’ designs is underrated, I think it’s fundamental to a thriving open source eco system, and having the OHL proven in court would undermine it and indirectly hamper people’s existing freedoms rather than give them new ones.

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Well, if that’s the source of the confusion, it should be relatively easy to disentangle :slight_smile: I am not a lawyer either, but I think the basic English grammar within my reach should suffice here. I am sure Eli is not trying to be misleading in his quote, but the result is really confusing, at least to me. Take the part between quotes: “be the basis on which to form a contractual relationship.” He takes this from an article Myriam and I published in 2012. Here’s that same quote from that article, with more surrounding text so the context can be better understood: “a licence to the documentation could well be the basis on which to form a contractual relationship between the licensor and the recipient wishing to either modify the design or manufacture products based thereon.” The way I read it (this is Myriam’s sentence) is the following: you are free to establish a contract with whoever you want and have the CERN OHL play a role in that contract. For example, you and I can sign a contract and specify that regarding a certain design we will go by the rules described in the CERN OHL. Now take the combination of the quote and the text Eli adds right after it:

“be the basis on which to form a contractual relationship” on which the CERN license is built

Notice that the “on which the CERN license is built” is Eli’s, not Myriam’s. I very much doubt Myriam would agree.

Anyway, I gave you an example of how CERN OHL clauses could kick in in a practical design, and there are many others, which bear no relationship with contract law at all. I still think writing a clarification article could be very useful. If we do write it, would you be willing to check it before publication, to make sure we addressed all your questions and concerns?

But wait, do you have a similar worry with GPL when you do software? And you see GPL bears no relationship with your ability to reverse engineer some random piece of code elsewhere, right? CERN OHL only appeals to existing rights. It does not “try” (whatever that means) to create new rights.

That’s a really strong statement. Have you got any solid argument to back it? As you can understand, I am genuinely interested insofar as I try to make sharing of designs easier through the CERN OHL. If I understood correctly, your opinion is that CERN OHL does the opposite of what it’s intended to do. So if I manage to understand what your concerns are, maybe there is something I can do about it. To be honest, if your concern is that CERN OHL could be (mis)interpreted by judges in common-law countries and thereby create new law (through mechanisms I don’t fully grasp), I must say you are not the only one. Bruce Perens shares that concern. So that seems to me a legitimate concern, and I can take it to our legal specialists and see if there is something they can do about it. Can you confirm that is it? Is there anything else? Thanks.

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Hi @punkish, @kaspar, @Javier and @hpy,
Thanks for keeping this thread going! I was away for a few days, and now I have a lot of material to read and catch up for this talk at the startup program. @hpy, I think we can keep our conversation going via DMs as it is a more focal thing and leave this thread for the ongoing discussion. Of course we can share later what we come up with, as suggested by @kelu124.

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Hi All

Javier - thanks for your responses on this. Yes - I concur with what you say. It seems there’s some understandable confusion on this thread, and I will try to clarify from a lawyer’s perspective.

There is zero attempt to create new intellectual property rights using the CERN OHL, and the licence only applies where the licensee is exercising any right otherwise restricted by intellectual property rights in the Documentation. Section 4.1, for example, says:

4.1 The Licensee may manufacture or distribute Products always provided that, where such manufacture or distribution requires a licence under this Licence…

The part in italics we inserted to make it clear that the conditions in the licence do not apply if no licence is required in the first place.

So why is the CERN OHL a contract at all? Common Law jurisdictions (England, Ireland, and most of the US, for example) recognise the possibility of a bare licence. This is a non-contractual right granted by the holder of intellectual property rights whereby the holder of the rights promises not to sue the licensee for infringement of those rights provided that the licensee complies with the conditions in the licence. The GNU General Public License v2 falls within this category, and was designed as such for good reasons. However, this does cause problems for interpretation in many (if not all) civil law jurisdictions, such as France, Germany and Scotland, which do not recognise bare licences, and try to interpret them as contracts. Accordingly, the CERN OHL has (in common with other open licences, such as the Eclipse Public License, to name but one) been expressly drafted to be a contract, with a view to consistent interpretation between common law and civil law jurisdictions.

There is no intention to try to impose obligations on any third party who would be able to make use of the design documentation without infringing any intellectual property right. In other words, if you can rely on some sort of exemption (fair use?) for your use of the documentation is outside the scope of intellectual property rights in the first place, the CERN OHL will not impose any terms on you.

I can’t recall the detail of the timeline, but the wording referenced above and inserted in clause 4.1 was not intended to modify the effect of previous versions, but just to clarify the scope of the licence.

Javier - please feel free to contradict me if my analysis is off.

Thanks

Andrew

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@hpy, I think we can keep our conversation going via DMs as it is a more focal thing and leave this thread for the ongoing discussion.

Sounds good, will do. Great conversation here, too!

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@amchagas
Sorry for not having kept track of the forum ( I thought I signed up but must have messed up my notices)
Anyway happy to help/get involved if you still need it:
Just so you know for Open Knowledge International (OKI) we are currently looking at the ODL licenses.

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Hi @freyja.vandenboom,

@hpy and I moved this to a direct message thread. I just sent you an invite. If anyone else is interested, drop me a line!

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Hi Andre. I’m interested in this topic!