Talk at Open Hardware Summit 2015

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Open Hardware Summit 2015-09-19
Philadelphia
Open Source Hardware and
Developments in Creative
Commons Licenses, Compatibility,
and Policy
Mike Linksvayer
Sr Fellow, Creative Commons

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Design (scroll) Hardware (>10 items) Plenty/sharing (cornucopia)

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https://openclipart.org/detail/227535/flag-of-philadelphia-with-led

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Creative Commoners demand #FREEBASSEL · Renata Avila · CC-BY-2.0
CC Global Summit 2013

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Bassel is of a time and temperment allowing the
embrace of open ✳, organizing communities
and spaces for open culture, data, education,
hardware, government, science, software
Arguably open hardware is the most eclectic of
the opens, drawing on all others
As seen in the adoption of licenses associated
with other opens...

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http://www.oshwa.org/oshw-community-survey-2013/#section5

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Licenses
Permissions: deregulatory, would be
unnecessary without property-based restrictions
Conditions: regulatory*, would be
unenforceable via the license without property-
based restrictions**
* A copyleft/share-alike condition to preserve permissions a deregulatory strategy, would be unnecessary
without property. But there are no well known purely deregulatory copyleft licenses. CC-BY-SA, CERN OHL, and
especially GPL also seek to preserve conditions which would be unenforceable via the license without property-
based restrictions.
** Some license authors try to make conditions enforceable by licensors even when property-based restrictions
do not apply by treating the license as a contract, often when the reach of property is currently uncertain, e.g.,
for data and some uses of hardware designs.

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Permissions: deregulatory, would be
unnecessary without property-based restrictions
Necessary to create a low-risk environment for
open collaboration. Remove copyright and
copyright-like barriers, some also mitigate
patent threats. Relatively straightforward.
Conditions: regulatory*, would be
unenforceable via the license without property-
based restrictions**
Optional (e.g., CC0 has none). Subject of much
argument, advocacy, politics. Source of most
incompatibility.

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Mutually incompatible copyleft licenses :-(

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Much bigger problem: no license,
no unambigous permission :-( :-(
Non-open licenses are also a problem (most “other” above) but well-understood;
e.g., http://www.oshwa.org/2014/05/21/cc-oshw/

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Vastly larger problem not pictured...
...almost all hardware designs and designers are
unaccounted for:
Not published
Not licensed
No connection to open source hardware community
Perhaps no conception of open source hardware
:-( :-( :-(

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...almost all hardware designs and designers are
unaccounted for:
Not published
Not licensed
No connection to open source hardware community
Perhaps no conception of open source hardware
:-( :-( :-(
Remember this when finding yourself engaged in
intra-movement argument, advocacy, politics
about licenses!

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It’s still worth making licenses and license-like
tools work better.
But it’s also necessary to look beyond private
application of licenses, to public policy.

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What ought* a new license [version] do? (1)
Differentiation: does the new license implement
some policy not currently available in existing
licenses, or at least offer a great improvement in
implementation (not to provide excuses for new
licenses, but the legal text is just one part of
implementation; also consider
branding/positioning, understandability, and
stewardship) of policy already available?
* According to me, copied from my evaluation of CC 4.0 licenses at
http://gondwanaland.com/mlog/2013/12/09/scc-cc-40/

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What ought* a new license [version] do? (2)
Permissions: does the new license grant all
permissions needed to realize its policy objective?

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What ought* a new license [version] do? (3)
Regulation: how does the license’s policy
objective model regulation that ought be adopted
at a wider scale, e.g., how does it align with usual
“user rights” and “copyright reform” proposals?

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What ought* a new license [version] do? (4)
Interoperability: is the new license maximally
compatible with existing licenses, given the
constraints of its policy objectives, and indeed, to
the expense of its immediate policy objectives,
given that incompatibility, non-interoperability,
and proliferation must fragment and diminish the
value of commons?

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What ought* a new license [version] do? (5)
Cross-domain impact: how does the license
impact license interoperability and knowledge
sharing across fields/domains/communities (e.g.,
software, data, hardware, “content”, research,
government, education, culture…)? Does it further
silo existing domains, a tragedy given the paucity
of knowledge about governing commons in the
world, or facilitate sharing and collaboration across
domains?

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CC-BY-SA-3.0 CC-BY-SA-4.0

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CC-BY-4.0 and CC-BY-SA-4.0
Numerous improvements, adding up to more
global (legal systems, language, subject matter)
and easier to understand (visible structurally on
previous slide) and comply with licenses.
Changes of particular interest for open source
hardware:
Potential for one-way compatibility from CC-BY-
SA-4.0 to a strong copyleft license (GPL)
Explicit exclusion of patent rights from license

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CC-BY-SA-4.0 compatibility mechanism
1(c) BY-SA Compatible License means a license listed at
creativecommons.org/compatiblelicenses, approved by Creative
Commons as essentially the equivalent of this Public License.
3(b)1 The Adapter’s License You apply must be a Creative
Commons license with the same License Elements, this version
or later, or a BY-SA Compatible License.
Process for adding compatible licenses
https://wiki.creativecommons.org/wiki/ShareAlike_compatibility_process_and_criteria

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CC-BY-SA-4.0 now bilaterally compatible with Free
Art License 1.3
https://creativecommons.org/weblog/entry/44030 (2014-10-21)
Works under CC-BY-SA and FAL may now be adapted and released under either
license. Previously not permitted by either license, thwarting their objectives.

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CC-BY-SA-4.0 not yet unilaterally (donor)
compatible with GPLv3
It could be soon, following years of version 4.0 and CC-FSF discussions and months of
formal community consultation. Works under CC-BY-SA could then be adapted and
released under GPLv3. Links:
https://wiki.creativecommons.org/wiki/ShareAlike_compatibility_analysis:_GPL
https://wiki.creativecommons.org/wiki/GPL_compatibility_use_cases (including
hardware design)
https://creativecommons.org/weblog/entry/44832 (2015-02-02; start of public
comment period)
http://lists.ibiblio.org/pipermail/cc-licenses/2015-April/007691.html (close of public
comment period)
Enactment would mitigate the problem of
license incompatibility among open source
hardware projects.

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CC-BY-4.0 and CC-BY-SA-4.0 exclude patents from
license
2(b)2 Patent and trademark rights are not licensed under this
Public License.
Explanation
“No CC license version licenses patent and trademark rights along with copyright.
These rights are treated separately and are not covered by the license. In 4.0, this
was made explicit to avoid confusion. However, in all license versions, implied
licenses may come into play where these rights would interfere with exercise of the
rights granted by the CC license.”
https://wiki.creativecommons.org/wiki/License_Versions#Trademark_and_patent_explicitly_
Note CC0-1.0 also excludes patents from public domain waiver / unconditional license.

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Options for open source hardware projects that
want a collaboration-friendly patent policy
If/when possible move to a license that includes a patent grant
from contributors, such as GPLv3 (cheers in advance for
compatibility...)
Require contributors separately make a patent grant, as many
standards development efforts do.
http://www.jointdevelopment.org/ is a recent initiative to make
this kind of process available outside large standards
organizations.
Explore patent pledges and clubs (e.g., Defensive Patent
License). These complement rather than substitute for above;
see my analyisis http://gondwanaland.com/mlog/2013/11/16/dpl/

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Implantable cardioverter defibrillator chest X-ray
Gregory Marcus, MD, MAS, FACC · CC-BY-3.0
Self-driving car · CC0-1.0
Body worn video
Throwawaysixtynine · CC-BY-4.0
Generic Smart City / Sensor Network Image · CC0-1.0

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Things depicted are all
highly regulated
of great public interest
vulnerable to criminals and states, abetted by reliance on
security-through-obscurity
vulnerable to vendor lock-in, monopoly, non-cooperation
their hardware designs matter! (as does their software and data)
Surely open source hardware has something to offer as a
lightweight regulatory framework that encourages innovation and
collaboration, and discourages capture...

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Paths from public licenses to public policy (1)
Commons-favoring knowledge policy comes in several forms;
each can be enacted to some extent at individual,
organizational, and governmental levels.

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Paths from public licenses to public policy (2)
Policies requiring that knowledge created by the enacting entity
be put in the commons (usually, offered under an open license).
Policies requiring the knowledge creation funded by the
enacting entity be put in the commons.
Policies requiring that knowledge used (often that means
procured) by the enacting entity be in the commons.
Policies liberalizing or regulating use of knowledge by third
parties, in specific ways that protect commons-based production
from property restrictions or that make more knowledge
available for use in commons-based production. Without legal
changes, these can only be enacted in a limited way (through
analogous license permissions and conditions).

31. 31Shinkansen Tokyo by Parag.naik, available under the CC BY-SA license.White House by Diego Cambiaso, available under the CC BY-SA license.
Paths from public licenses to public policy (3)
None of these paths are novel. They have been pursued at
various levels by various open movements for years. They “just”
need to be replicated and scaled, massively. Below are two
funding policy campaigns Creative Commons has recently
participated in.

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Open licenses prototype open public policy.
What does this mean / how to implement in the
multifarious context of open source hardware?

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links: convey yourself to
https://creativecommons.org
@mlinksva Q6847682
many more in
http://2015.oshwa.org/2015/09/07/interview-with-mi
#freebassel 1284 days
https://commons.wikimedia.org/wiki/File:SEPTA_Airport_Line_approaching_Terminal_E.jpg (colorized) · Public Domain