Toward Open Source Hardware

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Citation: John Ackermann (2009) Toward Open Source Hardware. University of Dayton Law Review (RSS)
Internet Archive Scholar (search for fulltext): Toward Open Source Hardware
Download: Open Source Hardware Article 2009.pdf
Tagged: open source (RSS), open hardware (RSS)


Author is principal drafter of the TAPR Open Hardware License (OHL) and provides rationale for same. Stated goal is to provide legal mechanisms for "open hardware" analogous to those provided by the GNU General Public License (GPL) for free and open source software.

Article briefly makes case for relevance of open hardware - availability of all tools needed for individuals and small groups to design hardware - and describes process of designing hardware, from creation of a schematic diagram to the manufactured printed circuit board, and contrasts with development processes and legal mechanisms for software.

Electronic hardware design often begins with a "schematic capture program", which generates a "netlist" describing the connectivity of an electronic design, and component information describing physical components to be used. There is significant creativity exercised in creating the schematic, but the generated netlist is more constrained, and conceivably could not be subject to copyright.

Above outputs used used in a printed circuit board (PCB) layout program, which may be somewhat automated, but is also interactive and graphical, with many creative choices made by designers. The most significant output of the layout program are "gerber" files, standard formats used by PCB manufacturers, which can be used directly in the manufacturing process.

In some ways the schematic design and PCB layout expressions are like software source code, and generated outputs like software binaries. However, author suggests there are legal differences, and describes how copyright does and may not apply to electronic hardware designs, covering familiar territory regarding the expression subject to copyright, while ideas are not (and subsidiary concepts, such as merger doctrine), and the extent to which useful articles are subject to copyright.

Article states that "Only one United States case appears to have ruled on the question of copyright in the schematic diagram of an electronic circuit. The court in Picker International Corp. v. Imaging Equipment Services, Inc. held, without discussion or analysis, that a set of schematic drawings was subject to a valid copyright." and notes that there is a widespread assumption in electronics industry that actual printed circuit boards are subject to copyright.

In summary regarding copyright, article states that designers wisheing to restrict "documentation files should find that copyright laws provide at least some protection to the graphical outputs, native file formats, and Gerber file outputs of his design tools. However, the netlist file is likely to run afoul of the idea/expression dichotomy and be ineligible for copyright."

Patents are noted as not practical for protecting open hardware projects due high financial cost and long time cycle for patent applications.

Article then describes some of the TAPR OHL's features that distinguish it from open source software licenses such as the GPL.

The OHL:

  • is not only a public copyright license, but attempts to be a click-wrap contract as well.
  • attempts to describe requirements functionally, instead of legally, to avoid describing explicitly the legal regime underlying requirements
  • applicability to software is disclaimed
  • patent immunity grant extended to possessors of covered materials, not only contributors
  • changes must be emailed to earlier developers
  • there is a noncommercial-only variation of the OHL, the TAPR NCL