Post Open Hardware

Free as in Software Freedom Law Shows

Wednesday, July 18th, 2012

In the latest Free as in Freedom podcast Karen Sandler and Bradley Kuhn play a recording of and discuss my FOSDEM law&policy presentation from back in February. The podcast covered all but one FOSDEM law&policy talk, see the archives.

I’m very happy with how this episode turned out. I managed to at least briefly include more points in a half hour than I recall having done, and Sandler and Kuhn manage to discuss far more of them than I would’ve hoped. Listen (ogg, mp3) and refer to slides (pdf, odp).

Further notes on two issues mentioned in the discussion follow.

Equality and Freedom

I’m glad that Sandler mentioned free software’s great equality story. But, I should say what I mean by that. I don’t primarily mean equal access, though that’s important. I mean contributing to reducing inequality of income, wealth, power. I’ve done precious little to articulate this, and I don’t know anyone else who has either, but there’s a reason it is the very first of my suggested considerations for future policy. Similarly, I think free software’s grand freedom story is not the proximate freedoms to run, study, modify, share software, but their role in protecting and promoting a free society. Again, much more needs to be said, provocatively (and that, critiqued, etc). Software freedom and nearby ought be claiming space in the commanding heights of political dialogue.

Hardware design licensing

I’m glad that Kuhn stated that he sees no reason for not using GPLv3 for hardware designs, and scoffs (privately, I suppose) at people making up new licenses for the same. As far as I know there are two papers that try to make the case for new hardware design licenses, and as far as I can tell they both fail. But, as far as I know no FLOSS establishment institution has proclaimed the correctness of using GPLv3 or a compatible license for hardware designs, nor explained why, nor reached out to open hardware folk when discussing new such licenses. How can this change? Perhaps such people should be alerted to copyleft-next. Perhaps I should be happy that hardware has been long ignored; one can imagine a universe with an equally twisted late 1990s vintage GNU FHL to accompany the GNU FDL.

Joke background

CC0, passports, and (a related one from Asheesh Laroia is told on the show) credit cards.

In 2009 Sandler and Kuhn interviewed me for the previous podcast, the Software Freedom Law Show. I did not blog about it then, but much of the discussion is probably still pertinent, if you wish to listen.

5 years of GPLv3

Friday, June 29th, 2012


Version 3 of the GNU GPL was released 5 years ago today. How successful the license is and will be may become more clear over the next 5 years. Use relative to other free software licenses? Good data and analysis are difficult. The importance of v3’s innovations in protecting and promoting users’ freedoms in practice? Will play out over many years. More software freedom and indeed, general welfare, than in a hypothetical world without GPLv3? Academic questions, and well worth considering.

I suggest that number (add qualifiers of and scaling by importance, quality, etc, as you wish) of works under GPLv3 or use of GPLv3 relative to other licenses are less important markers of GPLv3’s success, and that of the broader FLOSS community, than the number and preponderance of works under GPLv3-compatible terms. Although it is a relatively highly regulatory license, its first and most important job is the same as that of permissive and public domain instruments — grant all permissions possible around default restrictions imposed by current and future bad public policy.

Incompatibility among free licenses means that the licenses have failed at their most important jobs for any case in which one wishes to use works under incompatible terms together in a way that default bad policy restricts. That such cases may currently be edge cases, or even unknown, is a poor excuse for incompatibility. Remember that critique of current bad policy includes the restrictions it places on serendipitous uses and uses in the distant future!

On this number-and-preponderance-of-GPLv3-compatible-works metric, the license and free software community look pretty good (note that permissive licenses such as MIT and BSD, visibly popular among web developers, are GPL-compatible). Probably the most important incompatible terms are GPLv2-only and EPL. But software is suffusing everything, including hardware design, cultural/scientific/documentation works, and data. I hope to see major progress toward eliminating barriers across these overlapping domains in the next years.

Future of Intellectual Protectionism and not much Innovation Policy

Wednesday, May 23rd, 2012

I read all of the pieces selected for a „Future of copyright” anthology resulting from a contest run by the Modern Poland Foundation (apparently the winner of a small cash prize will be announced tomorrow; I highly recommend all of the pieces below and commend the judges for their selections):

7 are fiction (the 3 exceptions are me, Spitzlinger, and Togi). 5 of these are dystopian (exceptions: Binns, Mansoux), 4 of which (exception: Żyła) involve some kind of fundamental loss of personal control as a result of intellectual protectionism (even more fundamental than drug war style enforcement involves, which Żyła’s does concern). 3 of these (exception: Eddie) involve extrapolations of DRM, 2 of which (exception: Melin) involve DRM implants.

I’d like to see versions of the dystopian stories written as IP propaganda, e.g., recast as RIAA/MPAA pieces from the future (several of the stories have funnily named future enforcement organizations in that vein). Such could be written as satire, apology, or even IP totalist advocacy (utopian rather than dystopian).

Of the dystopian stories, Solís is probably most dystopian, Eddie most humorous, and Betteridge overall best executed. Żyła needs a bit of development — the trend posited is incongruous and unexplained — but maybe due to an unknown factor to be suggested by fictional future freakonomics, or perhaps I just missed it. Melin ends with some hope, but annoys me for contemporary reasons — why would the recipient of a body part artificially grown with “open” methods be constrained in the disposition of that part by a “Creative Commons license” on those methods? Another reason to discourage use of CC licenses for hardware design.

The two non-dystopian stories take the form of a “letter from the future” in which various “open” movements and “models” win (Binns; if I had to bet on a winner of the contest, I’d put my money on this one) and an allegory for the history and projected future of copyright (Mansoux; probably the piece I enjoyed reading most).

Of the 3 non-fiction pieces, Togi is most non-standard — a rant in the form of lemmas — and fun, though briefly goes off the rails in asserting that “those entities which represent the greatest tax gain will be preferred by government.” If that were the case, all that is prohibited would instead be taxed. Statements about “revenue” leave little wiggle room, but I suppose a charitable interpretation would include in “tax gain” all rents to those influencing power, be they bootleggers, baptists, or those directly obtaining tax revenue. Spitzlinger accepts the stories my piece rejects and suggests something like the Creative Commons Attribution-NonCommercial-ShareAlike license be the default for new works, with the possibility of additional temporary restriction (a one-year usufruct, perhaps?).

All of the pieces evince unhappiness with the current direction of information governance. Of those that reveal anything about where they stand on the reform spectrum (admitting that one dimension makes for an impoverished description of reform possibilities; that’s one of the points I hoped to communicate in my piece) I’d place Binns, Melin, and Spitzlinger away from abolition, and me, Mansoux, and Togi toward abolition.

I expect the contest and anthology to be criticized for only representing reform viewpoints. Sadly, no maximalist pieces were submitted. The most moderate reform submission didn’t follow contest rules (not a new piece, no license offered). More than alternate perspective versions of IP dystopias, I’d like to see attempts to imagine future systems which increase private returns to innovation, perhaps looking nothing like today’s copyright, patent, etc., and increase overall social welfare — I’m dubious, but please try.

Update 20120524: The two most fun and non-standard entries wonMansoux, with an honorable mention to Togi. I now must also congratulate the judges on their good taste. Read those two, or the whole anthology (pdf).

Open Source Semiconductor Core Licensing → GPL hardware?

Saturday, May 12th, 2012

In Open Source Semiconductor Core Licensing (pdf; summary) Eli Greenbaum considers when use of the semiconductor core designs under the GPL would make designs of chips and devices, and possibly physical objects based on those designs, trigger GPL requirements to distribute design for a derived work under the GPL.

It depends of course, but overall Greenbaum’s message for proprietary hardware is exactly the same as innumerable commentators’ messages for proprietary software:

  • If you use any GPL work, be extremely careful to isolate that use in ways that minimize the chances one could successfully claim your larger work triggers GPL requirements;
  • Excluding GPL work would be easier; if you want to incorporate open source works, consider only LGPL (I don’t understand why Greenbaum didn’t mention permissive licenses, but typically they’d be encouraged here).

Greenbaum concludes:

The semiconductor industry has been moving further toward the use of independently developed cores to speed the creation of new devices and products. However, the need for robustly maintained and supported cores and the absence of clear rules and licenses appropriate for the industry’s structure and practice have stymied the development of an open source ecosystem, which might otherwise have been a natural outgrowth of the use of independently developed cores. The development of a context-specific open source license may be the simplest way to clarify the applicable legal rules and encourage the commercial use of open source cores.

That’s something like what John Ackermann wanted to show more generally for hardware designs in a paper I’ve written about before. Each leaves me unconvinced:

  • If one wants copyleft terms, whether to protect a community or proprietary licensing revenue, use the GPL, which gives you plenty of room to aggressively enforce as and if you wish;
  • If you don’t want copyleft terms, use a permissive license such as the Apache License 2.0 (some people understand this but still think version tweaked for hardware is necessary; I’m skeptical of that too).

Greenbaum does mention Ackermann’s paper and TAPR license and other “open hardware” licenses I previously discussed in a footnote:

While “open hardware” licenses do exist, they do not take account of many of the complexities of the semiconductor device manufacturing process. For example, the TAPR Open Hardware License does not address the use of technology libraries, the incorporation of soft cores in a device design, or the use of independent contractors for part s of the design

I think this highlights a difference of perspective. “Open hardware” people inclined toward copyleft want licenses which even more clearly than the GPL impose copyleft obligations on entities that build on copylefted designs. Greenbaum doesn’t even sketch what a license he’d consider appropriate for the industry would look like, but I’m doubtful that a license tailored to enabling some open collaboration but protecting revenues in industry-specific ways would be considered free or open by many people, or be used much.

I suspect the reason open hardware has only begun taking off recently (and will be huge soon) and open semiconductor design not yet (though for both broad and narrow categories people have been working on it for well over a decade) has almost nothing to do with the applicability of widely used licenses (which are far from ideal even for software, but network effects rule) and everything to do with design and production technologies that make peer production a useful addition.

Although I think the conclusion is weak (or perhaps merely begs for a follow-up explaining the case), Greenbaum’s paper is well worth reading, in particular section VI. Distribution of Physical Devices, which makes the case the GPL applies to such based on copyright, contract, and copyright-like restrictions and patent. These are all really important issues for info/innovation/commons governance to grapple with going forward. My hope is that existing license stewards take this to heart (e.g., do serious investigations of how GPLv3+ and Apache 2.0 can be best used for designs, and take what is learned and what the relevant communities say when in the fullness of time the next versions of those licenses are developed; the best contribution Creative Commons can probably make is to increase compatibility with software licenses and disrecommend direct use of CC licenses for designs as it has done for software) and that newer communities not operate in an isolated manner when it comes to commons governance.

Copyleft regulates

Tuesday, January 31st, 2012

Copyleft as a pro-software-freedom regulatory mechanism, of which more are needed.

Existing copyleft licenses include conditions that would not exist (unless otherwise implemented) if copyright were abolished. In other words, copyleft does not merely neutralize copyright. But I occasionally1 see claims that copyleft merely neutralizes copyright.

A copyleft license which only neutralized copyright would remove all copyright restrictions on only one condition: that works building upon a copyleft licensed work (usually as “adaptations” or “derivative works”, though other scopes are possible) be released under terms granting the same freedoms. Existing copyleft licenses have additional conditions. Here is a summary of some of those added by the most important (and some not so important) copyleft licenses:

License Provide modifiable form2 Limit DRM Attribution Notify upstream3
BY-SA y y
FDL y y y
EPL y y
EUPL y y
GPL (including LGPL and AGPL) y y
MPL (and derivatives) y y
ODbL y y y
OSL y y
OHL y y y

I’ve read each of the above licenses at some point, but could easily misremember or misunderstand; please correct me.

There’s a lot more variation among them than is captured above, including how each condition is implemented. But my point is just that these coarse conditions would not be present in a purely copyright neutralizing license. To answer two obvious objections: “attribution”4 in each license above goes beyond the bare minimum license notice that would be required to satisfy the condition of releasing under sufficient terms, and “limit DRM” refers only to conditions prohibiting DRM or requiring parallel distribution (which all of those requiring modifiable form do in a way, indirectly; I’ve only called out those that explicitly mention DRM), not permissions5 granted to circumvent.

I’m not sure there’s a source for the idea that copyleft only neutralizes copyright. Probably it is just an intuitive reading of the term that has been arrived at independently many times. The English Wikipedia article on copyleft doesn’t mention it, and probably more to the point, none of the main FSF articles on copyleft do either. The last includes the following:

Proprietary software developers use copyright to take away the users’ freedom; we use copyright to guarantee their freedom. That’s why we reverse the name, changing “copyright” into “copyleft.”

Copyleft is a way of using of the copyright on the program. It doesn’t mean abandoning the copyright; in fact, doing so would make copyleft impossible. The “left” in “copyleft” is not a reference to the verb “to leave”—only to the direction which is the inverse of “right”.

Copyleft is a general concept, and you can’t use a general concept directly; you can only use a specific implementation of the concept.

This is very clear — the point of copyleft is to promote and protect (“guarantee” is an exaggeration) users’ freedom, and that includes their access to source. The major reason I like to frame copyleft as regulation6 is that if access to source is important to software freedom (or otherwise socially valuable), it probably makes sense to look for additional regulatory mechanisms which might (and appreciate ones that do) contribute to promoting and protecting access to source, as well as other aspects of software freedom. Such mechanisms mostly aren’t/wouldn’t be “copyleft” (though at this point, some of them would simply mandate a copyleft license), but the point is not a relationship with copyright, but promoting and protecting software freedom.

If software freedom is important, surely it makes sense to look for additional mechanisms to promote and protect it. As others have said, licenses are difficult to enforce and/or few people are interested in doing it, and copyleft can be made irrelevant through independent non-copyleft implementation, given enough desire and resources (which the largest corporations have), not to mention the vast universe of cases in which there is no free software alternative, copyleft or not. I leave description and speculation about such mechanisms for a future post.

1For example, yesterday Rob Myers wrote:

Copyleft is a general neutralization of copyright (rather than a local neutralization, like permissive licences). Nothing more.

Only slightly more ambiguously, late last year Jason Self wrote:

Copyright gives power to restrict what other people can do with their own copies of things. Copyleft is about restoring those rights: It takes this oppressive law, which normally restricts people and takes their rights away, and make those rights inalienable.

Well said…but not exactly. I point these out merely as examples, not to make fun of Myers, who is one of the sharpest libre thinkers there is, or Self, who as far as I can tell is an excellent free software advocate.

2Note it is possible to have copyleft that doesn’t require source. As far as I know, such only exists in licenses not intended for software. But I think source for non-software is very interesting. The other obvious permutations — a copyleft license for software that does not include a source requirement, and a non-copyleft license that does include a source requirement, are curiosities that do not seem to exist at all — probably for the better, although one can imagine questionable use cases (e.g., self-modifying object code and transparency as only objective).

3As I’ve mentioned previously, requiring upstream notification likely makes the TAPR OHL non-free/open. But I list the license and condition here because it is an interesting regulation.

4One could further object that one ought to consider so-called “economic” and “moral” aspects of copyright separately, and only neutralize the former; attribution perhaps being the best known and least problematic of the former.

5Although existing copyleft licenses don’t only neutralize restrictions (one that did would be another curiosity; perhaps the License Art Libre/Free Art License currently comes closest), it is important that copyright and other restrictions are adequately neutralized — in particular modern public software licenses include patent grants, and GPLv3 permits DRM circumvention (made illegal by some copyright-related legislation such as the DMCA), while version 4.0 of CC licenses will probably grant permissions around “sui generis” restrictions on databases. Such neutralization is only counter-regulatory (if one sees copyright as a regulation), not pro-regulatory, as are source and other conditions discussed above.

6Regulation in the broadest sense, including at a minimum typical “government” and “market” regulation, as I’ve said before. By the way, it could be said that those who advocate only permissive licenses are anti-regulatory, and I imagine that if lots of people thought about copyleft as regulation, this claim would be made — but it would be a problematic claim, as permissive licenses don’t do much (or only do so “locally”, as Myers obliquely put it in the quote above) against the background regulation of copyright restrictions.

Years of open hardware licenses

Tuesday, January 10th, 2012

Last in a list of the top 10 free/open source software legal developments in 2011 (emphasis added):

Open Hardware License. The open hardware movement received a boost when CERN published an Open Hardware License (“CERN OHL”). The CERN OHL is drafted as a documentation license which is careful to distinguish between documentation and software (which is not licensed under the CERN OHL) The license is “copyleft” and, thus, similar to GPLv2 because it requires that all modifications be made available under the terms of the CERN OHL. However, the license to patents, particularly important for hardware products, is ambiguous. This license is likely to the first of a number of open hardware licenses, but, hopefully, the open hardware movement will keep the number low and avoid “license proliferation” which has been such a problem for open source software.

But the CERN OHL isn’t the first “open hardware license”. Or perhaps it is the nth first. Several free software inspired licenses intended specifically for design and documentation have been created over the last decade or so. I recall encountering one dating back to the mid-1990s, but can’t find a reference now. Discussion of open hardware licenses was hot at the turn of the millennium, though most open hardware projects from that time didn’t get far, and I can’t find a license that made it to “1.0”.

People have been wanting to do for hardware what the GNU General Public License has done for software and trying to define open hardware since that timeframe. They keep on wanting (2006) and trying (2007, 2011 comments).

Probably the first arguably “high quality” license drafted specifically for open hardware is the (2007). The CERN OHL might be the second such. There has never been consensus on the best license to use for open hardware. Perhaps this is why CERN saw fit to create yet another (incompatible copyleft at that — incompatible with TAPR OHL, GPL, and BY-SA), but there still isn’t consensus in 2012.

Licenses primarily used for software (usually [L]GPL, occasionally BSD, MIT, or Apache) have also been used for open hardware since at least the late 1990s — and much more so than any license created specifically for open hardware. CC-BY-SA has been used by Arduino since at least 2008 and since 2009.

In 2009 the primary drafter of the TAPR OHL published a paper with a rationale for the license. By my reading of the paper, the case for a license specific to hardware seems pretty thin — hardware design and documentation files, and distribution of printed circuit boards seem a lot like program source and executables, and mostly subject to copyright. It also isn’t clear to me why the things TAPR OHL handles differently than most open source software licenses (disclaims strictly being a copyright license, instead wanting to serve as a clickwrap contract; attempts to describe requirements functionally, instead of legally, to avoid describing explicitly the legal regime underlying requirements; limited patent grant applies to “possessors” not just contributors) might not be interesting for software licenses, if they are interesting at all, nor why features generally rejected for open source software licenses shouldn’t also be rejected for open hardware (email notification to upstream licensors; a noncommercial-only option — thankfully deprecated late last year).

Richard Stallman’s 1999 note about free hardware seems more clear and compelling than the TAPR paper, but I wish I could read it again without knowing the author. Stallman wrote:

What this means is that anyone can legally draw the same circuit topology in a different-looking way, or write a different HDL definition which produces the same circuit. Thus, the strength of copyleft when applied to circuits is limited. However, copylefting HDL definitions and printed circuit layouts may do some good nonetheless.

In a thread from 2007 about yet another proposed open hardware license, three people who generally really know what they’re talking about each wondered why a hardware-specific license is needed: Brian Behlendorf, Chris DiBona, and Simon Phipps. The proposer withdrew and decided to use the MIT license (a popular non-copyleft license for software) for their project.

My bias, as with any project, would be to use a GPL-compatible license. But my bias may be inordinately strong, and I’m not starting a hardware project.

One could plausibly argue that there are still zero quality open hardware specific licenses, as the upstream notification requirement is arguably non-open, and the CERN OHL also contains an upstream notification requirement. Will history repeat?

Addendum: I just noticed the existence of an open hardware legal mailing list, probably a good venue to follow if you’re truly interested in these issues. The organizer is Bruce Perens, who is involved with TAPR and is convinced non-copyright mechanisms are absolutely necessary for open hardware. His attempt to bring rigor to the field and his decades of experience with free and open source software are to be much appreciated in any case.

Free software needs hardware entrepreneurs

Saturday, September 23rd, 2006

Luis Villa:

I’m boggled that Fedora, OpenSuse, and Ubuntu, all of whom have open or semi-open build systems now, are not actively seeking out Emperor and companies like Emperor, and helping them ship distros that are as close to upstream- and hence most supportable- for everyone. Obviously it is in RH, Canonical, and Novell’s interests to actively pursue Big Enterprise Fish like HP and Dell. But I’m really surprised that the communities around these distros haven’t sought out the smaller, and potentially growing, companies that are offering computers with Linux pre-installed.

Sounds exactly right to me. I’ve been thinking something similar for awhile, but as the post title suggests, focused on hardware vendors. Tons of them compete to sell Linux servers at the very low and very high ends and everything inbetween, but if you want a pre-installed Linux laptop you need to pay a hefty premium for slightly out of date hardware from someone like Emperor Linux. It seems like there’s an opportunity for a hardware vendor to sell a line of Linux laptops that aren’t merely repurposed Windows machines. It has seemed like this for a something like a decade though, and as far as I know HP and a couple others have only tentatively and temporarily offered a few lame configurations.

So I’d like to see a hardware startup (or division of an existing company) sell a line of laptops designed for Linux, where everything “just works” just as it does on Macs, and for the same reasons — limited set of hardware to support, work on the software until it “just works” on that hardware. There’s probably even some opportunity for Apple-like proprietary control over some aspects of the hardware. Which reminds me, what legal barriers, if any, would someone who wants to manufacture the OLPC design face? There is discussion of a commercial subsidiary for the project:

The idea is that a commercial subsidiary could manufacture and sell a variation of the OLPC in the developed world. These units would be marked up so that there would be a significant profit which can be plowed into providing more units in countries who cannot afford the full cost of one million machines.

The discussions around this have talked about a retail price of 3× the cost price of the units.

In any case Villa is right, distributions should be jumping to support hardware vendors, both the mundane and innovative sorts. Which Red Hat/Fedora is doing in the case of OLPC.

Update 20060926: In comments below Villa points out system76, which approaches what I want, excpet that their prices are mediocre and they don’t offer high resolution displays, which I will never do without again. David points out, which looks like reasonable independent reporting on OLPC. I asked on the OLPC wiki about other manufacturers’ use of the design.