Dan Maloney
Hi everyone, that's for joining us. Today on the Hack Chat we have @Michael Weinberg from OSHWA, and we're going to be celebrating Open Hardware Month, which is October BTW.
@Michael Weinberg - can you tell us a little about yourself and your role at OSHWA?
Sure! Hi everyone and thanks for having me. I am currently the president of the board of OSHWA. One of the major things I am responsible for is OSHWA's open source hardware certification program (https://certification.oshwa.org/)
I came to OSHWA because of an interest in open source 3D printers, especially some of the legal issues they raise
A big part of the certification program was helping people understand some of the licensing issues around open source hardware, which can be complicated
I'll also say that I know that there will be some other members of the OSHWA board joining for at least part of the chat, so don't be surprised when they chime in
I am also part of the steering committee for this year's Open Hardware Summit, which will be in NYC on March 13 (https://2020.oshwa.org/)
I love the Summit because it is a chance for the open source hardware community to get together in person and see what everyone is up to
So, you mentioned legal issues around open source 3D-printers. What kind of issues?
They basically broke down into two categories - issues with the printers and issues with what came out of the printers
for the printers themselves (and this is true of most open source hardware), many people come to the legal issues from an open source software background
that means that they assume that the printers are protected by copyright and that the major thing to worry about is what license to pick
but the big difference between software and hardware is that software is automatically protected by copyright when it is created. That means it is 'born closed' and you need to take active measures to let people copy and build off it (usually with a license).
hardware is 'born open' so by default people can copy and build off it. The license is probably only relevant to a tiny portion of the hardware
that portion can be important, but it isn't the whole thing like software
[citation needed]
Sounds like that open v. closed thing might be a relic of the patent system v the copyright system.
(here's a longer post about it) https://michaelweinberg.org/post/150123246460/the-cost-of-a-successful-creative-commons-and-open
cool
@Dan Maloney yes. @de∫hipu let me expand on it a bit
any non-trivial physical work is covered by copyright by default, as far as I know
Nope.
One way to think of it is that intellectual property law divides the world into two categories: functional and 'creative'
if something is in the creative category it is eligible for copyright protection. that includes software
if it is in the functional category it is eligible for patent protection
the twist is that copyright automatically protects anything that is categorically eligible for copyright protection
what makes it "functional"?
for patents you need to go out and get the patent
See, I always knew my code was a work of art...
basically if it is the kind of thing that a (non-software) engineer would design it is going to be functional
so something like a 3D printer is functional
that doesn't sound like a proper legal definition
hmm interesting, so if it's not patented it, you can copy it, wrt hardware? (although i guess not the firmware parts)
Intellectual property law is very region-specific. Assuming you are referring primarily to US here?
but the vase that you 3D print with it is protected by copyright
the reality is that a patent is just the right to sue, otherwise you must rely upon evidence to prove original art even when it applies to a design. This unfortunately does not ensure protection either. The world of design is basically a free for all. I'm an industrial designer and have one OSHWA project. https://certification.oshwa.org/us000157.html
So the Vase is protected because it´s not functional?
what if it was a bottle opener?
@de∫hipu 17 USC 101 defines the scope of copyright proitection
ah, so you are talking only about USA
and excludes "useful articles" from that scope
so the vase is not useful?
and defines useful article as "A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”."
while IP law can differ across jurisdictions, the basic categorizations are fairly static
the question about the vase raises an interesting question
thanks, sorry for sounding contrary, but this is the first time I ever hear about such a thing
I know that you can't copyright "obvious" things, or things that have to look that way to work
here is an older whitepaper that covers some of the distinctions. It is in the context of 3D printing, but it holds true in most cases https://www.publicknowledge.org/blog/it-will-be-awesome-if-they-dont-screw-it-up-3d-printing/
you are thinking about patent
one of the requirements for patentability is that the invention is "non-obvious"
A vase itself as a construct is protected under a patent, the specific appearance that distinguishes a tiffany vase from that produced by Pottery barn is art (even though it is design, which is why our patent system is broken) and so is therefore a copyright or design patent
If someone makes a print of a painting, they have to pay royalties right? Isn't this the same thing as the printed vase?
hm I can kinda understand it because even though the vase has a function by holding water togheter, it is only made to hold a flower and is therefore not a function but decoration
you can patent that the thing has to look that way to work -- that's the whole point of a patent
@Marc Schömann but your question is the right one. Many objects are not purely functional or purely decorative
Hi. I have a question regarding open hardware. I would like to make a project of mine open source hardware, so anyone can recreate it, but I don't want someone else to begin mass production without my consent (i dont want inferior parts being used).Is there any provisions in the OSHWA open hardware license to allow this? I am also looking into a cern hardware license.. Thanks!
one of the famous US cases involved a cocktail shaker that was shaped like a penguin
There is a difference between design patents and utility patents.
@Jake exactly
@Anthony Kouttron one of the things that OSHWA does is maintain the community-created definition of open source hardware (https://www.oshwa.org/definition/)
/me has already discovered a huge hole in his understanding, that is great
that definition does not allow you to limit someone else in that way (which does not mean it is an unreasonable thing to want - just that it couldn't be certified open source hardware)
in practice you might also have problems restricting people from mass producing the hardware because you may not have a legal right to stop them - even if you do not actively openly license it
@Jake good point. I am talking about utility patents here
So... what prevents someone from taking a cocktail shaker and shaping it like a slightly different penguin? Or worse, taking a legitimate patented object(like a wireless earbud) and shaping it like a penguin to create new intellectual property?
you still need to apply to get a design patent, but they are a somewhat different animal
nothing
other than it costs money and often like patents are turned down
ah.
@Saint Meh (lawyerly answer) it depends.... In the case of the earbud, the patent would be on the music-playing functionality
@Saint Meh someone has to design the penguin
design patents are crazy, very hard to enforce
so assuming that was patented you would be infringing no matter what form factor you put it in
but the idea of a penguin-shaped object can't be protected
oh really?
You just have to give it a name
but if you only had a copyright in the penguin shape, someone else could create their own interpretation of penguin and you probably could not stop them
sure, you can trademark it
but that's a separate thing
@de∫hipu is flagging a concept in copyright sometimes called "idea/expression dichotomy". No one can protect the idea of a penguin sculpture, but you can protect the specific expression of that idea that you create
so effectively if you open source something you have to live with the fact anyone can make money out of it
yeah, but you can have secret sauce or some other implimentation
no matter which licence you chose
trademarks are also slightly different.. They are designed to make it clear the source of the product. So you can get a trademark if you can show that people associate the name with you.
@Marc Schömann yes. Including you!
IE https://certification.oshwa.org/us000157.html
So... I want to make a cool folding door for my hackerspace... but Torggler invented it, not me. https://homehacks.co/a-diy-folding-metal-door-that-looks-from-the-future/
could I get in trouble?
so I have this open, but the chair I might design with it is my design
@Michael Weinberg isn't this ecactly the use case for a trademark? preventing inferior products posing as the originals?
where would I even go to know if I could get in trouble for recreating it?
If the hardware design is put out in the public domain (say Hackaday.io) and time Stamped doesn't that constitute prior art. The would effectively prevent anyone elf from patenting it?
correct
@Saint Meh I can't give you specific legal advice because I am not your lawyer. I will say that the first question you should ask is "is the door actually protected by any sort of IP right?"
@Saint Meh that is the fun part of the intellectual property law all over the globe -- you can't know until someone sues you and wins the case
@Michael Weinberg Thanks for the reply. I am developing hardware that is designed to be affordable solder filtration, but I was a bit concerned that if individuals like it (a lot) some cheap labor factories may reproduce my device with inferior components and even knockoff filters. I would still like my device to be open. Do you know of any license that would cover openness, but say that it cant be copied en mass?
it's up to the judge to decide
@John Loefler that's a good question! I assume "yes" unless it has been patented before it went up on hackaday
@de∫hipu yes. That is why not freely licensing your trademark is so important to open source hardware! Anyone is free to make the hardware, but people need to know when you actually manufactured the specific piece of hardware in their hand
I'm sure i heard something about being able to implement things from patents for personal use, is that correct?
@John Loefler it would be a good start to being able to prove that the patented invention was not novel
@anfractuosity not in the US, although there are personal exceptions in other places
nintendo had this dirty hack with the gameboy, where the device wouldn't work unless the cardridge contained a logo they have trademarked -- that allowed them to sue people who made 3rd-party cardridges
cal you tell me more about trademarks and open source hardware? So if I trademark my logo, is that logo not included under open hardware license?
you could use cern in conjunction
@Michael Weinberg ah, cheers
I will also note that the certification page has examples of how IP works for hardware, software, documentation, and trademarks, with actual certified hardware to show how it works (https://certification.oshw
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