 My name is Andrew Katz. I'm a lawyer so I hope you also had lots and lots of coffee to drink. I'm going to be talking about open hardware licensing. I've been practicing open source software licensing for many, many years. More recently I've been getting involved in open hardware projects. So one of the questions that I'm asked most frequently is what sort of licence should I apply to the project that I'm interested in. It really depends on whether you fall into one of two camps. So if this describes you, I'm happy for anyone to use my design even if they modify it and keep the modifications to themselves. I haven't used this software before. Then the answer is use the solder pad licence. The solder pad licence is a hack of the Apache 2.0 software licence which I did a couple of years back. If you're familiar with the Apache software licence you'll know that it's an extremely permissive licence. It lets you do anything with the code including turn it to proprietary and all you have to do is provide a bit of attribution. It works reasonably well for hardware as it stands but not brilliantly because the terminology is obviously much more software related. So I've tweaked the terminology a little bit and it's called the solder pad licence because Andrew very kindly let me call it the solder pad licence and he's hosting it on his website at solderpad.org. So if that's your attitude then use the solder pad licence. That's it really. Thanks very much. Goodbye. Thank you for listening. Maybe it doesn't describe you though. People tend to say I want people to use my designs but only if when they make modifications and distribute the device they do so under the same licence. So those of you familiar with free and open source software licences will be familiar with the concept of copy left and you'll be familiar with licences like the GPL. So if that describes you are you still happy with that even if the licence that you're using limits the number of projects people combine your project with. So you'll be familiar with the licence compatibility problem if you know anything about free and open source software which basically makes it very difficult to combine two projects using two different copy left licences for the simple reason that each copy left licence demands that the project is re-licensed under only under its own licence and logically you can't have two different licences being applied to the same project at the same time. So really if you're operating in the GPL world then you're really limited to combining your project with other GPL projects or projects that are released under much more liberal licences like Apache but it does make it very difficult to use other copy left licences like the open software licence. So you get an issue of licence compatibility. So it's much easier if you're using very simple licences of the outset like Apache. So okay let's say that you're still keen on a sort of copy left like idea. So we talked about limiting the pool of designs that can be combined. What about if it's really really easy to design around the licence so that the person taking the licence doesn't have to comply with the licence terms anyway. I'll talk a little bit in greater depth about the issues but essentially when it comes to licensing hardware there is a real problem with actually trying to allow copy left licences to stick. It's much easier to design around them than it would be with an equivalent open source software licence. And if after all that you're still happy that that's your attitude then probably the best bet for you is the CERN open hardware licence which is another licence that I've been involved with. The one caveat for that is whether you have some patents and to be honest most open hardware projects are pretty unlikely to have any patents but if they do then there is an argument for using a third licence which is the TAPA open hardware licence. I'll talk a little bit about how that works later. So getting copy left to work in hardware is something that is really really difficult to do. And there's a number of problems. So there's the IPMS problem which basically means there's a whole bundle of different sorts of intellectual property that apply to hardware in a different way to the way that intellectual property applies to software. There's a stickability problem which is the problem of making the copy leftness of the licence actually work in practice. There's the boundary problem which is analogous to the linking problem that we have in software. So in other words if you have a couple of sub-assemblies to what extent does the licence applicable to one sub-assembly dictate the licence that has to be applied to the other sub-assembly. There's a cost differential problem which is to do with the fact that by definition everything that is hardware actually has to consist of atoms and has to be made so there's effort involved in making it and there's effort involved in sticking the atoms together. And there's the compatibility problem which we've talked about as far as having different copy left licences. So if we look at each one of those particular issues in turn. So software is in the main covered by copyright. Patents are involved sometimes and there's also some sort of occasional peripheral issues like trade secrets etc. But in the main software is covered by copyright and the software licences are primarily copyright licences which are dependent on distribution. Hardware can be covered by copyright but not always. It can be covered by patent. There are more hardware patents around the place than there are on software patents so that's something to be aware of. There's various different sorts of design rights and that's a mess in itself in the UK alone. There are four completely different and separate sorts of design rights operating in parallel. Two of them are registered, two of them are unregistered, two of them are domestic, two of them are European. It's a real confusing mess. And then there's some sort of weird special sorts of intellectual property such as semiconductor mask rights. So it's much more difficult to draft a licence in the context of hardware because you have to deal with all of these very disparate sorts of intellectual property rather than just focusing on copyright. So the next problem is the stickability problem. Now with software, every time you run software, every time you change it or every time you distribute it or you lend or use it or make it available to other people you're going to need a copyright licence. And every time there is an opportunity, every time a copyright licence is applied there's an opportunity to add conditions to that licence. So it means that those conditions can be the copyright conditions. So typical life cycle of a piece of software means that there's an opportunity for copyright law to impinge on it. Many, many, many, many times. And every single time that impingement happens that's an opportunity to apply conditions to allow things like copy left to work. This is much less likely to be true for hardware. So the licences are, they're much more difficult to apply. I mean if you think about it, just handing a hammer to somebody is not something that requires any intellectual property rights to do that. So you can't control the handing of that hammer over to somebody using some sort of licence attached to intellectual property. So that's a real problem is that if you're drafting a hardware licence the opportunity to allow that licence to impinge on whatever you're doing with the hardware is much more complicated. The boundary problem. So this is where we have a number of different modules and we want to combine them. And again in software it's complicated enough. I mean there's plenty of debate about whether GPL code when it's linked to another piece of code whether that means that the other piece of code has to be released under the GPL and there's differences of opinion between on the one hand the Free Software Foundation and Larry Rosen and but even so there's a generally understood, at least there's generally understood norms in terms of the boundaries at which the licence impinges on different modules when you combine them in various different ways. With hardware it really is dramatically more difficult to do that. It's by no means clear that if you have a particular sub-assembly for a piece of car suspension when you bolt that onto the chassis then it suddenly means that the whole of the chassis has to be made available under some sort of open hardware licence. So that creates a particular problem and it's quite a difficult one to tackle. There's the cost differential problem as well and this is quite a subtle one but basically you can replicate software perfectly for zero cost. So if you want to take a Linux distribution you can replicate that perfectly just by copying it on the computer and it costs 0.000p in terms of the amount of electricity that you're using to do that. If on the other hand you wanted something that had exactly equivalent functionality to a Linux distribution or let's say just a Linux kernel and you wanted to reverse engineer it and recreate it then there are various sort of interesting figures kicking around but the most recent estimate is that it costs between $3 and $4 trillion to recreate the Linux kernel from scratch in terms of the amount of effort that has gone into making it. So really if you want to use something that has the functionality of the Linux kernel but you don't want to comply with the licence which applies to it which is the GPL, the two options are. Either you pay a whole bunch of coders to reverse engineer and completely recreate the Linux kernel and that's going to cost you between $3 and $4 trillion or you actually decide that you're prepared to live with the GPL and in all cases when people have used Linux they've decided that they're prepared to live with the GPL they don't really want to invest $3 to $4 trillion in recreating a piece of software so that they can do whatever they like with it. It's not quite so simple with hardware because hardware always involves materials so even slavishly copying something is going to have some cost and effort involved in it and then there's also the manufacturing process as well. So I'd say this is not as good as a thought through argument as the other points but I think it seems to me that there is still greater ease in reverse engineering something in the hardware domain than there is likely to be in the software domain. Now that's a hugely sweeping statement and you'll be able to immediately come up with counter examples to that but it's probably something that does at least in certain cases have some merit in it as an argument. We've touched on the incompatibility problem there's no real difference here between the worlds of software and hardware if you've got copy-left licenses then it is very difficult to combine projects using different copy-left licenses so ideally if you are going to have a copy-left license you really only want to have one as soon as you have more than one copy-left license then this compatibility issue arises. So despite all of that if you decide that you still want to use some form of copy-left license probably the best one to consider is the CERN OpenHead hardware license so how does that work? Well it attaches to the documentation so you take the design files, design documentation which of course may include electronic files, CAD files, whatever and you attach the CERN license to it and it kicks in when you do anything with the documentation that actually needs a license. Now the reality is most sorts of construction that you can imagine are going to involve doing something with that documentation so the obvious example is if you're doing something like feeding it into a CNC machine then clearly the documentation is going to have to be adapted and copied in some way to be fed into the machine to make it work and that's an opportunity to make the license impinge and likewise if you're making circuit boards for example then you'll take the design documentation it may actually be a mask for the circuit board and you'll actually be copying the physical image of that mask onto the circuit and that's something that needs a license and therefore that's an opportunity for the rights in the CERN OpenHead hardware license to impinge. The difficulty is that under English law at least it's not a breach of copyright to create a 3D object out of a 2D design if there's no actual document to document copying involved so if you happen to have some design drawings of to take a not particularly random example a Stormtroopers helmet and then you use those to create a 3D instance of a Stormtroopers helmet then that's something that doesn't require a license and therefore any form of copy left that you try to attach to it isn't going to work because you can do it without a license at all anyway and that's just a peculiarity of English law and it also highlights that another problem that we have with hardware is that copyright is pretty consistent in terms of its application throughout the world at least in the way it applies to software the way that these other intellectual property rights apply to hardware do vary quite significantly from jurisdiction to jurisdiction so you have a lot more certainty in terms of the way that software licenses are going to work worldwide than you do in terms of hardware licenses so what happens is assuming that you have done what is the most likely thing to do with a piece of design documentation that's covered by the CERN open hardware license and you've created a piece of hardware from it then as soon as you distribute that piece of hardware to somebody else that's the point at which you are obliged to make the design documentation available to other people there's a sort of subtle legal hack involved in making that work which I won't go into at the moment but essentially that's the obligation it's triggered by the first distribution of a design that is made or a piece of hardware that's made that particular design in the unlikely event that you're involved in a hardware project that does have some patents and the very nature of the open hardware open source development method means that's pretty unlikely because if you're being open with the designs all the way through the design process then it means that you're basically publishing everything every step of the way and therefore it means that you'll no longer have the appropriate secrecy to enable you to take out a patent so it's also expensive and it's time consuming and it's lengthy and it doesn't really fit in very well then the only circumstances in which it might happen is if you have a bunch of corporate entities who are getting together and trying to use this sort of model an open hardware model for their own purposes but they probably use a different licence for that anyway but anyway having said that if you happen to have any patents there is a licence that does work fairly well if you have patents so that's the tapper open hardware licence there is another sort of technical legal hack that we could use that I'm sort of discussing with CERN at the moment that means that any recipient of a piece of hardware is granted a contractual right to demand the design documents from anyone upstream and there's a million and one ways why that's not going to work particularly well from a practical point of view from a legal point of view it might but I'm fairly uncomfortable about that because it really changes the whole model of the way that licensing works so software licensing the only people that can claim under for example the GPL of software the copyright owners in the first place so if you're not the copyright owner of a piece of GPL code you can't complain what anyone else does with it you have to be a copyright owner of that code what we're doing is we're turning it on its head and it receives a piece of hardware which is made to this new open design licence which we haven't drafted yet it's entitled to receive a copy of the design documents but it needs a lot of thinking through before we release that one into the wild because it's got some potentially serious ramifications for liability and so on and people try to use other licences particularly GPL, LGPL and Creative Commons which are not really designed for use in a hardware context so they do try to use those as well the reasons why it doesn't work particularly well terminology isn't really designed for hardware it is primarily a software distribution licence and as I said before distributing hardware doesn't normally require a licence in the same way that software does as I said before if I hand a hammer over to you that doesn't mean that I need a licence to give you the hammer whereas if I copy a piece of software for you because software, if I hand you over a CD of something then I'm distributing that CD and that's something that does have an effect under copyright law so that's something that the GPL relies on and trying to apply it to hardware doesn't really work particularly well Creative Commons doesn't work particularly well in an environment where you have something that's got source code and object code in this case you've got the design documents and you've got the actual object itself but it's okay for the design documents themselves if you distribute the design documents it's going to work but the share alike thing doesn't impinge on the item itself so if you make modifications to the documentation and you keep the modifications to yourself but you made loads and loads of designs to the modified form but you don't distribute to the modified designs then Creative Commons really doesn't have anything to say about that so it's essentially a huge loophole and for those of you who are familiar with free and open source software licensing it's sort of similar to the SAS loophole that people identified in the GPL so you can use Creative Commons but you have to be aware that there are some major problems with it Creative Commons specifically excludes patents there's no sort of patent licence in there so even if somebody grants you a design the right to use a design under the Creative Commons you won't automatically get a right to any patents they hold that's unnecessary to create that design and so I stumbled recently across an organisation called Local Motors anyone come across that? yeah so they claim to be an open source hardware company but actually the designs are released on a non-commercial basis only if you use them for commercial purposes then there's a sort of royalty flow involved so strictly speaking that's not open source there's a use restriction on there as well so people are sort of misusing the terminology open source there's another one you may have come across which is the open compute project licence but it's not really a hardware licence it's actually a standards licence and doesn't actually work at all if there are no patents involved it's sort of bits of it are completely undefined so summary I hardly recommend the solar pad licence because it's your simplest option if on the other hand you want to try to apply some sort of copy left to what you're doing then you're probably best off using the open hardware licence not necessarily because it's definitely going to work but at the very least it'll generate sort of fear, uncertainty and doubt in the minds of the people that are trying to rip you off so that might go some way to helping you out so be aware of its limitations that's it thank you very much for listening