Fwd: [Legal] Report from the Legal committee
2 views
Skip to first unread message
Bryan Bishop
Feb 17, 2012, 9:40:49 AM2/17/12
to Open Manufacturing, Bryan Bishop
From: Andrew Katz <Andre...@moorcrofts.com>
Date: Thu, Feb 16, 2012 at 4:12 AM
Subject: Re: [Legal] Report from the Legal committee
To: Bruce Perens <br...@perens.com>, "le...@lists.openhardware.org" <le...@lists.openhardware.org>, "gen...@lists.openhardware.org" <gen...@lists.openhardware.org>
Cc: Katie Hill <Katie...@moorcrofts.com>
All
There are a few basic questions which arise in relation to open hardware, and to which the answer is not at all clear, and, worse, I suspect varies significantly from jurisdiction to jurisdiction.
Open software licences work because they are dependent on copyright, and because copyright impinges very frequently on software when it is used, amended or compiled, so a set of conditions can be applied at each point.
It seems to me (and I may well be wrong) that there is an assumption that the same applies to hardware (and I find it instructive to think about dirty machine-shop-style mechanical hardware here, rather than electronic devices). I am not at all sure that this is the case. These questions impinge on whether an open hardware licence, especially a copyleft open hardware licence, is effective.
1. Is it an infringement of copyright, database right or design right (or other IPR -I'm ignoring patents for the time being) in an article to copy an article?
2. If an article is copied, is it an infringement of the IPR in the article itself, or in the underlying design documents?
3. Are there any other IPRs we should be thinking about (e.g. petty/design patents, semiconductor topography rights)?
4. Does distribution of an article require a licence of any of the IPRs? Does it make a difference to this distribution if it is private distribution between (1) private individuals; (2) to the public or (3) between entities within the same group?
5. Where do/should the boundaries and interfaces lie? In a copyleft licence, to what extent can or should incorporating one copyleft component require the entire article to be subject to the same copyleft licence?
6. If an act would not itself be in breach of IPR (e.g. private distribution of an article in many jurisdictions), should the (copyleft) licence seek to control that activity, and, if so, how?
My (legal) issue with copyleft licences is that I'm not at all sure that these issues are sufficiently well understood for the drafting to grounded enough to give a degree of certainty to the effect of a licence. (I have other, extra-legal problems with copyleft hardware licences, but it's probably not appropriate to discuss them on this list at the moment).
I'm wary of approving licences of which the legal effect is uncertain. This is why I took the coward's way out and adapted the Apache license, which largely avoids these issues! It's also worth mentioning that I am actively involved in the drafting process for the next version of the CERN Open Hardware Licence, and have raised these concerns also.
I'm happy to provide preliminary answers to these questions in my jurisdiction (England and Wales) and I'd be interested in hearing comments from elsewhere. I'd also welcome any other questions which can usefully be added to the list. I am trying to stress-test some basic assumptions which seems to have been made in relation to open hardware licences, with a view to being able to determine whether they are likely to have the desired legal effect.
Kind regards
Andrew
Andrew Katz
Moorcrofts LLP
Corporate Law | Technology Law | Commercial Law | Employment Law
Employee Incentivisation & Share Schemes | Intellectual Property Law
Commercial Property Law | Secured Lending
James House, Mere Park, Dedmere Road, Marlow, Bucks SL7 1FJ
+44 (0) 1628 470003 (phone) | +44 (0) 7970 835001 (mobile)
Skype: andrewjskatz | Twitter: andrewjskatz
mailto:andre...@moorcrofts.com
www.moorcrofts.com
Partners - Adrian Phillips, Andrew Katz, Theresa Hunter, Craig Havard, Andrew Hardcastle, Barry Maytum
Registered in England & Wales OC 311818
Regulated and authorised by the Solicitors Regulation Authority
"Partner" means a member of Moorcrofts LLP
THIS EMAIL IS CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE LET US KNOW.
We store email addresses and the names of addressees to assist with future correspondence.
_______________________________________________
Legal mailing list
Le...@lists.openhardware.org
http://lists.openhardware.org/cgi-bin/mailman/listinfo/legal
Subject: Re: [Legal] Report from the Legal committee
To: Bruce Perens <br...@perens.com>, "le...@lists.openhardware.org" <le...@lists.openhardware.org>, "gen...@lists.openhardware.org" <gen...@lists.openhardware.org>
Cc: Katie Hill <Katie...@moorcrofts.com>
All
There are a few basic questions which arise in relation to open hardware, and to which the answer is not at all clear, and, worse, I suspect varies significantly from jurisdiction to jurisdiction.
Open software licences work because they are dependent on copyright, and because copyright impinges very frequently on software when it is used, amended or compiled, so a set of conditions can be applied at each point.
It seems to me (and I may well be wrong) that there is an assumption that the same applies to hardware (and I find it instructive to think about dirty machine-shop-style mechanical hardware here, rather than electronic devices). I am not at all sure that this is the case. These questions impinge on whether an open hardware licence, especially a copyleft open hardware licence, is effective.
1. Is it an infringement of copyright, database right or design right (or other IPR -I'm ignoring patents for the time being) in an article to copy an article?
2. If an article is copied, is it an infringement of the IPR in the article itself, or in the underlying design documents?
3. Are there any other IPRs we should be thinking about (e.g. petty/design patents, semiconductor topography rights)?
4. Does distribution of an article require a licence of any of the IPRs? Does it make a difference to this distribution if it is private distribution between (1) private individuals; (2) to the public or (3) between entities within the same group?
5. Where do/should the boundaries and interfaces lie? In a copyleft licence, to what extent can or should incorporating one copyleft component require the entire article to be subject to the same copyleft licence?
6. If an act would not itself be in breach of IPR (e.g. private distribution of an article in many jurisdictions), should the (copyleft) licence seek to control that activity, and, if so, how?
My (legal) issue with copyleft licences is that I'm not at all sure that these issues are sufficiently well understood for the drafting to grounded enough to give a degree of certainty to the effect of a licence. (I have other, extra-legal problems with copyleft hardware licences, but it's probably not appropriate to discuss them on this list at the moment).
I'm wary of approving licences of which the legal effect is uncertain. This is why I took the coward's way out and adapted the Apache license, which largely avoids these issues! It's also worth mentioning that I am actively involved in the drafting process for the next version of the CERN Open Hardware Licence, and have raised these concerns also.
I'm happy to provide preliminary answers to these questions in my jurisdiction (England and Wales) and I'd be interested in hearing comments from elsewhere. I'd also welcome any other questions which can usefully be added to the list. I am trying to stress-test some basic assumptions which seems to have been made in relation to open hardware licences, with a view to being able to determine whether they are likely to have the desired legal effect.
Kind regards
Andrew
Andrew Katz
Moorcrofts LLP
Corporate Law | Technology Law | Commercial Law | Employment Law
Employee Incentivisation & Share Schemes | Intellectual Property Law
Commercial Property Law | Secured Lending
James House, Mere Park, Dedmere Road, Marlow, Bucks SL7 1FJ
+44 (0) 1628 470003 (phone) | +44 (0) 7970 835001 (mobile)
Skype: andrewjskatz | Twitter: andrewjskatz
mailto:andre...@moorcrofts.com
www.moorcrofts.com
Partners - Adrian Phillips, Andrew Katz, Theresa Hunter, Craig Havard, Andrew Hardcastle, Barry Maytum
Registered in England & Wales OC 311818
Regulated and authorised by the Solicitors Regulation Authority
"Partner" means a member of Moorcrofts LLP
THIS EMAIL IS CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE LET US KNOW.
We store email addresses and the names of addressees to assist with future correspondence.
_______________________________________________
Legal mailing list
Le...@lists.openhardware.org
http://lists.openhardware.org/cgi-bin/mailman/listinfo/legal
- Bryan
http://heybryan.org/
1 512 203 0507
Bryan Bishop
Feb 17, 2012, 9:43:21 AM2/17/12
to Open Manufacturing
Date: Thu, Feb 16, 2012 at 7:53 AM
Subject: Re: [Legal] Report from the Legal committee
To: Andrew Katz <Andre...@moorcrofts.com>
Cc: "gen...@lists.openhardware.org" <gen...@lists.openhardware.org>, Katie Hill <Katie...@moorcrofts.com>, "le...@lists.openhardware.org" <le...@lists.openhardware.org>
Hi Andrew --
I think you're absolutely right to question the usefulness for hardware of a true "copyleft" license under copyright theories.
While the law certainly varies from place to place, I think it's pretty universal (though slightly oversimplified) that "patents protect ideas; copyrights protect the expression of ideas." And, at least under US law, copyright protection doesn't extend to the "functional" component of an article.
My analysis of US law was that a schematic diagram almost certainly has at least a "thin" copyright, but once you get past that point the applicability of copyright becomes more uncertain. I think it's almost certain that you could not use copyright to prevent someone from taking a schematic diagram and building a piece of hardware that implements the circuit the schematic describes.
There's more question about whether the artwork for a PCB is protected by copyright. Having laid out some boards myself, I think the process has enough room for creative expression that copyright should prevent someone from duplicating my layout. There is one US case that said in a very offhand way that PCBs are subject to copyright. However, some intelligent folks believe that PCBs are functional and therefore not copyrightable.
Because of that uncertainty, we made the decision in the TAPR OHL not to rely on copyright. While nothing in the document disclaims copyright, we were careful to structure it in the form of a contract rather than a license (despite the name!) and to expressly state the consideration between the parties (among other things, the patent immunities that are granted). If I had to defend the OHL in litigation, I'd likely describe it primarily as a know-how license relying on contract law, rather than IP principles, for its interpretation. The copyright component is secondary.
John
----
Cc: "gen...@lists.openhardware.org" <gen...@lists.openhardware.org>, Katie Hill <Katie...@moorcrofts.com>, "le...@lists.openhardware.org" <le...@lists.openhardware.org>
Hi Andrew --
I think you're absolutely right to question the usefulness for hardware of a true "copyleft" license under copyright theories.
While the law certainly varies from place to place, I think it's pretty universal (though slightly oversimplified) that "patents protect ideas; copyrights protect the expression of ideas." And, at least under US law, copyright protection doesn't extend to the "functional" component of an article.
My analysis of US law was that a schematic diagram almost certainly has at least a "thin" copyright, but once you get past that point the applicability of copyright becomes more uncertain. I think it's almost certain that you could not use copyright to prevent someone from taking a schematic diagram and building a piece of hardware that implements the circuit the schematic describes.
There's more question about whether the artwork for a PCB is protected by copyright. Having laid out some boards myself, I think the process has enough room for creative expression that copyright should prevent someone from duplicating my layout. There is one US case that said in a very offhand way that PCBs are subject to copyright. However, some intelligent folks believe that PCBs are functional and therefore not copyrightable.
Because of that uncertainty, we made the decision in the TAPR OHL not to rely on copyright. While nothing in the document disclaims copyright, we were careful to structure it in the form of a contract rather than a license (despite the name!) and to expressly state the consideration between the parties (among other things, the patent immunities that are granted). If I had to defend the OHL in litigation, I'd likely describe it primarily as a know-how license relying on contract law, rather than IP principles, for its interpretation. The copyright component is secondary.
John
----
On 2/16/2012 5:12 AM, Andrew Katz wrote:
All
There are a few basic questions which arise in relation to open hardware, and to which the answer is not at all clear, and, worse, I suspect varies significantly from jurisdiction to jurisdiction.
Open software licences work because they are dependent on copyright, and because copyright impinges very frequently on software when it is used, amended or compiled, so a set of conditions can be applied at each point.
It seems to me (and I may well be wrong) that there is an assumption that the same applies to hardware (and I find it instructive to think about dirty machine-shop-style mechanical hardware here, rather than electronic devices). I am not at all sure that this is the case. These questions impinge on whether an open hardware licence, especially a copyleft open hardware licence, is effective.
1. Is it an infringement of copyright, database right or design right (or other IPR -I'm ignoring patents for the time being) in an article to copy an article?
2. If an article is copied, is it an infringement of the IPR in the article itself, or in the underlying design documents?
3. Are there any other IPRs we should be thinking about (e.g. petty/design patents, semiconductor topography rights)?
4. Does distribution of an article require a licence of any of the IPRs? Does it make a difference to this distribution if it is private distribution between (1) private individuals; (2) to the public or (3) between entities within the same group?
5. Where do/should the boundaries and interfaces lie? In a copyleft licence, to what extent can or should incorporating one copyleft component require the entire article to be subject to the same copyleft licence?
6. If an act would not itself be in breach of IPR (e.g. private distribution of an article in many jurisdictions), should the (copyleft) licence seek to control that activity, and, if so, how?
My (legal) issue with copyleft licences is that I'm not at all sure that these issues are sufficiently well understood for the drafting to grounded enough to give a degree of certainty to the effect of a licence. (I have other, extra-legal problems with copyleft hardware licences, but it's probably not appropriate to discuss them on this list at the moment).
I'm wary of approving licences of which the legal effect is uncertain. This is why I took the coward's way out and adapted the Apache license, which largely avoids these issues! It's also worth mentioning that I am actively involved in the drafting process for the next version of the CERN Open Hardware Licence, and have raised these concerns also.
I'm happy to provide preliminary answers to these questions in my jurisdiction (England and Wales) and I'd be interested in hearing comments from elsewhere. I'd also welcome any other questions which can usefully be added to the list. I am trying to stress-test some basic assumptions which seems to have been made in relation to open hardware licences, with a view to being able to determine whether they are likely to have the desired legal effect.
_______________________________________________
Legal mailing list
Le...@lists.openhardware.org
http://lists.openhardware.org/cgi-bin/mailman/listinfo/legal
Legal mailing list
Le...@lists.openhardware.org
http://lists.openhardware.org/cgi-bin/mailman/listinfo/legal
Mze
Feb 22, 2012, 11:39:15 AM2/22/12
to Open Manufacturing
Hi Andrew,
First I want to disclose that I am in no way a legal representative
for any entity existing or of previous existence, but I stumbled upon
this citation and thought the internals might be of interest to you.
http://scholar.google.com/scholar_case?case=16728019454400566348&q=hardware+copyrights&hl=en&as_sdt=3,32&as_ylo=2010
there are inherent problems with both copyright law in the U.S.
regarding digital mediums, but more so with software copyrights as
they relate to hardware copy wrongs (LOL).
On Feb 17, 7:40 am, Bryan Bishop <kanz...@gmail.com> wrote:
> From: Andrew Katz <Andrew.K...@moorcrofts.com>
> gene...@lists.openhardware.org>
> Cc: Katie Hill <Katie.H...@moorcrofts.com>
> James House, Mere Park, Dedmere Road, Marlow, Bucks SL7 1FJ+44 (0) 1628 470003begin_of_the_skype_highlighting +44 (0) 1628 470003 (phone) | +44 (0) 7970 835001begin_of_the_skype_highlighting +44 (0) 7970 835001 (mobile)
> Skype: andrewjskatz | Twitter: andrewjskatz
>
> mailto:andrew.k...@moorcrofts.comwww.moorcrofts.com
First I want to disclose that I am in no way a legal representative
for any entity existing or of previous existence, but I stumbled upon
this citation and thought the internals might be of interest to you.
http://scholar.google.com/scholar_case?case=16728019454400566348&q=hardware+copyrights&hl=en&as_sdt=3,32&as_ylo=2010
there are inherent problems with both copyright law in the U.S.
regarding digital mediums, but more so with software copyrights as
they relate to hardware copy wrongs (LOL).
On Feb 17, 7:40 am, Bryan Bishop <kanz...@gmail.com> wrote:
> From: Andrew Katz <Andrew.K...@moorcrofts.com>
> Date: Thu, Feb 16, 2012 at 4:12 AM
> Subject: Re: [Legal] Report from the Legal committee
> To: Bruce Perens <br...@perens.com>, "le...@lists.openhardware.org" <
> le...@lists.openhardware.org>, "gene...@lists.openhardware.org" <
> Subject: Re: [Legal] Report from the Legal committee
> To: Bruce Perens <br...@perens.com>, "le...@lists.openhardware.org" <
> gene...@lists.openhardware.org>
> Cc: Katie Hill <Katie.H...@moorcrofts.com>
> Skype: andrewjskatz | Twitter: andrewjskatz
>
> mailto:andrew.k...@moorcrofts.comwww.moorcrofts.com
> Partners - Adrian Phillips, Andrew Katz, Theresa Hunter, Craig Havard,
> Andrew Hardcastle, Barry Maytum
> Registered in England & Wales OC 311818
> Regulated and authorised by the Solicitors Regulation Authority
> "Partner" means a member of Moorcrofts LLP
> THIS EMAIL IS CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE
> LET US KNOW.
> We store email addresses and the names of addressees to assist with future
> correspondence.
>
> _______________________________________________
> Legal mailing list
> Le...@lists.openhardware.orghttp://lists.openhardware.org/cgi-bin/mailman/listinfo/legal
>
> --
> - Bryanhttp://heybryan.org/1 512 203 0507begin_of_the_skype_highlighting 1 512 203 0507> Andrew Hardcastle, Barry Maytum
> Registered in England & Wales OC 311818
> Regulated and authorised by the Solicitors Regulation Authority
> "Partner" means a member of Moorcrofts LLP
> THIS EMAIL IS CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE
> LET US KNOW.
> We store email addresses and the names of addressees to assist with future
> correspondence.
>
> _______________________________________________
> Legal mailing list
> Le...@lists.openhardware.orghttp://lists.openhardware.org/cgi-bin/mailman/listinfo/legal
>
> --
Reply all
Reply to author
Forward
0 new messages