This is a repost from the old Open Prosthetics Ning site, from March, 2015
I have been involved in a number of discussions about various open hardware licenses. These communities tend to share an incredible amount of passion about trying to create social change or viral innovation, and draw a considerable inspiration from the open source software community. What they have also tended to share is a pretty intense misunderstanding of what rights they actually have that are licensable, and about which things it is possible for them to share legally and technically with the tools that actually make open source software work.
Just to review briefly, licenses for open source software are based on copyright. The automatic copyright that source code and other written material enjoys is the only reason that software licenses work, and it is based on the copy of the source code that is shared under license, as well as the copy of the software that is generated when the code is compiled, or on the copy of the software that is generated in the ram of the computer each time a compiled program is run. The “essential step” exception of both open source and traditional proprietary software licenses is what allows us to make these copies each time we run them as we use them (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?ar...).
Hardware (except circuit masks) and physical designs are different. There is no automatic copyright protection for these things unless they are works of art, interestingly enough. For this reason, sculptors can actually limit the sale of representations of their sculptures (as the “Portlandia” sculptor Raymond Kaskey has donehttp://portlandtribune.com/component/content/article?id=119564), and as of 1998, for some reason, the shape of vessel hulls is similarly protectable under the Vessel Hull Design Protection Act. Utilitarian designs, such as those that form the basis of machinery, are protectable only by patents, which cost something like $10,000 to obtain, and perhaps $100,000 to defend, and protect not necessarily the form of something (which can be protected by a design patent), but the novel and useful idea behind the design. For those of us interested in sharing our designs, spending time or money on trying to get a patent is usually not an option. Even if it were, it is unclear how to get anyone further down the chain to pursue a patent for a derivative design, thereby breaking the viral chain that is the distinguishing feature of open source.
So what open source hardware licenses have done so far is simply ignore the issue, not necessarily addressing what rights they are actually licensing someone else. Licenses that skirt this issue and head straight to the terms of the license include the Open Hardware and Design Alliance (http://wiki.ohanda.org/), and the Open Source Hardware Association (http://www.oshwa.org/) licenses. These licenses sometimes include strange and potentially chilling provisions, such as remuneration for damages, like the Tuscon Amateur Packet Radio (TAPR) license (http://www.tapr.org/ohl.html). OSHWA even had the distinction of having a dispute with the Open Source Initiative (opensource.org) over the trademark of the OSI logo and its similarity to the OSHWA “open gear” logo:http://www.oshwa.org/2012/08/02/an-important-question-on-the-open-s... There is a statement in the OSHWA wiki that specifically addresses the issue, noting the difference between patent and copyright rights; the wiki is actually wrong about the protection of hardware circuit layout masks (http://freedomdefined.org/OSHW#Licenses_and_Hardware). While many of us in this movement mean anything physical when we say hardware (like the kind of stuff sharable in an STL), some of the folks associated with the OSHWA really just meant electronics. There is indeed a specific 10-year protection available for integrated circuit layout masks available under the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC;http://en.wikipedia.org/wiki/Integrated_circuit_layout_design_prote...).
A very interesting characteristic of the recently proposed 3DPL license (https://medium.com/@jorispeels/youmagine-3dpl-c11fce097ae) is that it is intended to license a stereolithography (STL) file. This is, to a certain extent, a human readable file that contains a list of triangular verticies, the contents of which is therefore copyrightable in the same way that any computer source code is. Until recently, there were no good tools available for editing STLs. I’ve recently discovered http://meshmixer.com/, which is a free Autodesk product that allows one to make direct edits to STLs. While STLs may be copyrightable, it is not obvious how enforceable it might be, particularly when, unlike the text of source code, and STL edit might include a transformation like a small enlargement or shrinking of a model along a single axis, as MeshMixer allows.
It would be great if we had a way to append such licenses to the STL files themselves, as well as to get companies like Autodesk and Makerbot to add the enforcement of such licenses to the software that consumes them.
Something I just discovered poking around a bit is that GitHub has been quietly building tools that help with the sharing of STL files for a couple of years: https://github.com/blog/1465-stl-file-viewing I used the sample bunny file in MeshMixer, exported it as an STL, then very slightly modified it by scaling it in all three axes, and then exported it again, both times as both ASCII and binary STL files. I then uploaded the original STL files to Git, then checked them out and replaced them with the modified files. In order to get the Git comparison tool to work, I had to fork the project, and was then able to view the comparison between the original and modified files:https://github.com/kuniholm/opensourcehardware/commit/9fec6a80c7f29... Git’s tool is pretty impressive, and works on both the binary and ASCII versions, the former being a pretty cool trick.
All of this is to say that while I’ve been bothering everyone that I’ve ever met in the CAD industry to create a tool that’s capable of usefully modifying and sharing files in a way that can be controlled using an open source license, and it seems that the tools are already here. Using the toolchain that I’ve just described, it is possible to share a copyrightable file that you’ve created (or ingested sans license from the public domain), usefully modify it, and share the changes with an open source license that’s been tested and confirmed in court, requiring others who make use of the shared documents to do the same (http://en.wikipedia.org/wiki/GNU_General_Public_License#Legal_status).
Now while MeshMixer is very cool, it’s not a fully featured parametric CAD system, and isn’t capable of creating or modifying parametric files the way that users of CAD packages like those published by the big three companies do (Solidworks (Dassault), Pro/E (PTC), and Inventor (Autodesk)). But there are some changes afoot in the industry, as evidenced by the release of MeshMixer, which is an Autodesk product. It is likely a portent of things to come, and I’d closely watch new and upstart companies like http://www.onshape.com/ in the next few weeks and see what they have in store for us. New CAD paradigms that involve cloud storage and consumption, as well as the use of version control tools like GIT with CAD can clearly change the way business is done.
So in short, while I applaud what the folks at YouMagine are trying to accomplish with the 3DPL, it may be, either fortunately or unfortunately (depending on how you look at it), unnecessary. With the GPL (and other very well-established and prooven open source licenses) apparently adequate to protect any CAD file* that relies on a creation of a copy of the file in computer RAM in order to be consumed, coupled with CAD tools that consume copyrightable files that can be saved and shared using version control tools like Git, the future may be just about here. It should be a pretty exciting few years for open source hardware.
*Of course, just as with software, there may be no way to defend without a patent the practice of using an "ethics wall" to recreate the form or functionality of a piece of software without directly copying the source. In cases where the file is accessed from the cloud, it may be possible to enforce the terms of the license even in these cases, if agreement with the license were required even to create the 3D manifestation of the design necessary to measure it for reverse engineering.