[OH Updates] Fwd: the solderpad hardware license

[Andrew Katz]

Hi Andrew

On 28 Mar 2012, at 14:50, G. Andrew Stone wrote:

> Apache (and Solderpad) seems to me to be an incredibly careful way to give something away.  A bit of research shows that this Solderpad seems to simply broaden the rights specified to EU, US, and GB specific acts  (Andrew, it would have been nice for you to write a bit about your rationale so we do not have to figure it out ourselves). 
Sorry - I've explained the rationale so often I thought I had also done it on this list. My bad. 

> Since any government can pass another act giving another set of copyright-like rights it might be better to somehow use language that covers all of them.  I think this may have been the intent of the addition to section 2: "and do anything in relation to the Work as if the Rights did not exist."

Yes, that's the general idea. 

> 
> But it seems to me you can likely give something away much more succinctly with the Disclaimers and Limitations section (cover your ass) and a very general rights clause.  By carefully naming all these specific rights you fall into the lawyer's trap of over-specificity.  This opens up a counter-argument that an unnamed right was intended to remain in force -- an argument that holds little weight if broad language is used.  And so we end up with Oracle lawyers squabbling over Java when all know that Sun's clear intent was to give the software away...

Hence the sweeping up clause to try to avoid the whole ejusdem generis question. 

> 
> Andrew, your blog implies that you don't seem too interested in a copyleft style license, which is too bad because that's where the real interesting problems lie:

Au contraire - they fascinate me. I was just picking the easy-hanging fruit of a non-copyleft licence. 
> 
> 1. Can a software copyright enforce copyleft onto the hardware its running on?  For example, "if you own copyright to hardware design files AND you are using this software you must license the hardware design files using license XXX".

From a legal perspective, there are a number of problems with this. In some jurisdictions, you are limited from adding additional restrictions to a licence grant over and above what you can control by granting conditional permissions for example. I realise this is just an example but this sort of construction does generally allow for simple circumvention. For example, what happens if you assign the copyright of the hardware designs to a friendly but separate entity, and then license them back to yourself with an explicit no-sublicensing clause. This is the sort of thing that Liberty and Death in the GPL may try to deal with, but you get yourself tied up in knots very quickly. 

> 
> 2. Sure the physical device cannot be copyrighted... but the files can.  Is there a viable legal strategy where the physical hardware is shown to be sufficiently similar to the OSHW (maybe using DNA or fingerprints as a precedent) that corporate data (emails, source repository, etc) can be subpoenaed to investigate whether the engineers began from the OSHW files?

I hate to think where this might lead. You're starting to construct a legal framework which would shut down legitimate on-sale of physical articles like cars and TVs etc. Microsoft and Oracle have managed to keep the sale of secondhand software at an absolute minimum, despite the intention of the Computer Programs Directive to expressly allow it through exhaustion of rights. Do we really want a world where acquiring secondhand hardware (cars, appliances, art....) is considered to infringe IPRs by default.

Incidentally, this is the reason why the RMS has to tie himself in knots by arguing that the Pirate Party's proposals for copyright are too short, and that there should be an extra-long term of copyright for computer programs so that copyleft can continue to work!

Best


Andrew





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