We have been focusing a great deal on patent infringement controversies lately, so its time to step back into that pleasant world of free and open source software for a visit. And there is some significant news on that front.
First, Project Harmony has released version 1.0 of its contributor agreement templates. Version 1.0 includes a rather nifty Agreement Selector tool that generates both individual and entity agreements for your project. Project Harmony does not come down on the side of license-in versus assignment-in; its primary benefit is to assure standardization of language regardless of approach. Check it out.
There are those who believe Project Harmony would be better if it also educated folks on the alternatives to a license or assignment agreement, for example, simply letting the project license govern. Fair enough. Even Project Harmony recognizes this when it states:
Contribution agreements are one available tool out of many in an overall legal strategy for FOSS developers, the entities that distribute their work, and the users of their work.
Not the only tool--one tool.
Shifting from software to hardware we see that CERN has released version 1.1 of its Open Hardware License [PDF - text below]. The Open Hardware License is intended to:
govern the use, copying, modification and distribution of hardware design documentation, and the manufacture and distribution of products. Hardware design documentation includes schematic diagrams, designs, circuit or circuit-board layouts, mechanical drawings, flow charts and descriptive texts, as well as other explanatory material.
Along with the license CERN provides a "How To" guide [PDF] on how to apply the license to a hardware design.
Also, as a part of the Open Hardware Initiative CERN has also established the Open Hardware Repository:
a place on the web for electronics designers to collaborate on open hardware designs, much in the philosophy of the free software movement.
Note that the OHL is not the first open hardware license. That distinction probably belongs to the Tucson Amateur Packet Radio Open Hardware License which has been around since 2007. However, it is interesting to see the concept of collaboration and openness extending further on the hardware side.
CERN OPEN HARDWARE LICENCE v1.1
Through this CERN Open Hardware Licence ("CERN OHL") version 1.1, the Organization wishes to disseminate its hardware designs (as published on http://www.ohwr.org/) as widely as possible, and generally to foster collaboration among public research hardware designers.
The CERN OHL is copyright of CERN. Anyone is welcome to use the CERN OHL, in unmodified form only, for the distribution of his own Open Hardware designs. Any other right is reserved.
In this Licence, the following terms have the following meanings:
“Licence” means this CERN OHL.
“Documentation” means schematic diagrams, designs, circuit or circuit board layouts, mechanical drawings, flow charts and descriptive text, and other explanatory material that is explicitly stated as being made available under the conditions of this Licence. The Documentation may be in any medium, including but not limited to computer files and representations on paper, film, or any other media.
“Product” means either an entire, or any part of a, device built using the Documentation or the modified Documentation.
“Licensee” means any natural or legal person exercising rights under this Licence.
“Licensor” means any natural or legal person that creates or modifies Documentation and subsequently communicates to the public and/ or distributes the resulting Documentation under the terms and conditions of this Licence.
A Licensee may at the same time be a Licensor, and vice versa.
2.1 This Licence governs the use, copying, modification, communication to the public and distribution of the Documentation, and the manufacture and distribution of Products. By exercising any right granted under this Licence, the Licensee irrevocably accepts these terms and conditions.
2.2 This Licence is granted by the Licensor directly to the Licensee, and shall apply worldwide and without limitation in time. The Licensee may assign his licence rights or grant sub-licences.
2.3 This Licence does not apply to software, firmware, or code loaded into programmable devices which may be used in conjunction with the Documentation, the modified Documentation or with Products. The use of such software, firmware, or code is subject to the applicable licence terms and conditions.
3. Copying, modification, communication to the public and distribution of the Documentation
3.1 The Licensee shall keep intact all copyright and trademarks notices and all notices that refer to this Licence and to the disclaimer of warranties that is included in the Documentation. He shall include a copy thereof in every copy of the Documentation or, as the case may be, modified Documentation, that he communicates to the public or distributes.
3.2 The Licensee may use, copy, communicate to the public and distribute verbatim copies of the Documentation, in any medium, subject to the requirements specified in section 3.1.
3.3 The Licensee may modify the Documentation or any portion thereof. The Licensee may communicate to the public and distribute the modified Documentation (thereby in addition to being a Licensee also becoming a Licensor), always provided that he shall:
a. comply with section 3.1;
b. cause the modified Documentation to carry prominent notices stating that the Licensee has modified the Documentation, with the date and details of the modifications;
c. license the modified Documentation under the terms and conditions of this Licence or, where applicable, a later version of this Licence as may be issued by CERN; and
d. send a copy of the modified Documentation to all Licensors that contributed to the parts of the Documentation that were modified, as well as to any other Licensor who has requested to receive a copy of the modified Documentation and has provided a means of contact with the Documentation.
3.4 The Licence includes a licence to those patents or registered designs that are held by the Licensor, to the extent necessary to make use of the rights granted under this Licence. The scope of this section 3.4 shall be strictly limited to the parts of the Documentation or modified Documentation created by the Licensor.
4. Manufacture and distribution of Products
4.1 The Licensee may manufacture or distribute Products always provided that the Licensee distributes to each recipient of such Products a copy of the Documentation or modified Documentation, as applicable, and complies with section 3.
4.2 The Licensee is invited to inform in writing any Licensor who has indicated its wish to receive this information about the type, quantity and dates of production of Products the Licensee has (had) manufactured.
5. Warranty and liability
5.1 DISCLAIMER – The Documentation and any modified Documentation are provided "as is" and any express or implied warranties, including, but not limited to, implied warranties of merchantability, of satisfactory quality, and fitness for a particular purpose or use are disclaimed in respect of the Documentation, the modified Documentation or any Product. The Licensor makes no representation that the Documentation, modified Documentation, or any Product, does or will not infringe any patent, copyright, trade secret or other proprietary right. The entire risk as to the use, quality, and performance of a Product shall be with the Licensee and not the Licensor. This disclaimer of warranty is an essential part of this Licence and a condition for the grant of any rights granted under this Licence. The Licensee warrants that it does not act in a consumer capacity.
5.2 LIMITATION OF LIABILITY – The Licensor shall have no liability for direct, indirect, special, incidental, consequential, exemplary, punitive or other damages of any character including, without limitation, procurement of substitute goods or services, loss of use, data or profits, or business interruption, however caused and on any theory of contract, warranty, tort (including negligence), product liability or otherwise, arising in any way in relation to the Documentation, modified Documentation and/or the use, manufacture or distribution of a Product, even if advised of the possibility of such damages, and the Licensee shall hold the Licensor(s) free and harmless from any liability, costs, damages, fees and expenses, including claims by third parties, in relation to such use.
6.1 The rights granted under this Licence do not imply or represent any transfer or assignment of intellectual property rights to the Licensee.
6.2 The Licensee shall not use or make reference to any of the names, acronyms, images or logos under which the Licensor is known, save in so far as required to comply with section 3. Any such permitted use or reference shall be factual and shall in no event suggest any kind of endorsement by the Licensor or its personnel of the modified Documentation or any Product, or any kind of implication by the Licensor or its personnel in the preparation of the modified Documentation or Product.
6.3 CERN may publish updated versions of this Licence which retain the same general provisions as this version, but differ in detail so far this is required and reasonable. New versions will be published with a unique version number.
6.4 This Licence shall terminate with immediate effect, upon written notice and without involvement of a court if the Licensee fails to comply with any of its terms and conditions, or if the Licensee initiates legal action against Licensor in relation to this Licence. Section 5 shall continue to apply.
6.5 Except as may be otherwise agreed with the Intergovernmental Organization, any dispute with respect to this Licence involving an Intergovernmental Organization shall, by virtue of the latter's Intergovernmental status, be settled by international arbitration. The arbitration proceedings shall be held at the place where the Intergovernmental Organization has its seat. The arbitral award shall be final and binding upon the parties, who hereby expressly agree to renounce any form of appeal or revision.
The TAPR Open Hardware License
Version 1.0 (May 25, 2007)
Copyright 2007 TAPR – http://www.tapr.org/OHL
Open Hardware is a thing – a physical artifact, either electrical or mechanical – whose design information is available to, and usable by, the public in a way that allows anyone to make, modify, distribute, and use that thing. In this preface, design information is called “documentation” and things created from it are called “products.”
The TAPR Open Hardware License (“OHL”) agreement provides a legal framework for Open Hardware projects. It may be used for any kind of product, be it a hammer or a computer motherboard, and is TAPR's contribution to the community; anyone may use the OHL for their Open Hardware project. You are free to copy and use this document provided only that you do not change it.
Like the GNU General Public License, the OHL is designed to guarantee your freedom to share and to create. It forbids anyone who receives rights under the OHL to deny any other licensee those same rights to copy, modify, and distribute documentation, and to make, use and distribute products based on that documentation.
Unlike the GPL, the OHL is not primarily a copyright license. While copyright protects documentation from unauthorized copying, modification, and distribution, it has little to do with your right to make, distribute, or use a product based on that documentation. For better or worse, patents play a significant role in those activities. Although it does not prohibit anyone from patenting inventions embodied in an Open Hardware design, and of course cannot prevent a third party from enforcing their patent rights, those who benefit from an OHL design may not bring lawsuits claiming that design infringes their patents or other intellectual property.
The OHL addresses unique issues involved in the creation of tangible, physical things, but does not cover software, firmware, or code loaded into programmable devices. A copyright-oriented license such as the GPL better suits these creations.
How can you use the OHL, or a design based upon it? While the terms and conditions below take precedence over this preamble, here is a summary:
- You may modify the documentationmake products based upon it.
- You may use products for any legal purpose without limitation.
- You may distribute unmodified documentation, but you must include the complete package as you received it.
- You may distribute products you make to third parties, if you either include the documentation on which the product is based, or make it available without charge for at least three years to anyone who requests it.
- You may distribute modified documentation or products based on it, if you:
- License your modifications under the OHL.
- Include those modifications, following the requirements stated below.
- Attempt to send the modified documentation by email to any of the developers who have provided their email address. This is a good faith obligation – if the email fails, you need do nothing more and may go on with your distribution.
- If you create a design that you want to license under the OHL, you should:
- Include this document in a file named LICENSE (with the appropriate extension) that is included in the documentation package.
- If the file format allows, include a notice like “Licensed under the TAPR Open Hardware License (www.tapr.org/OHL)” in each documentation file. While not required, you should also include this notice on printed circuit board artwork and the product itself; if space is limited the notice can be shortened or abbreviated.
- Include a copyright notice in each file and on printed circuit board artwork.
- If you wish to be notified of modifications that others may make, include your email address in a file named “CONTRIB.TXT” or something similar.
- Any time the OHL requires you to make documentation available to others, you must include all the materials you received from the upstream licensors. In addition, if you have modified the documentation:
- You must identify the modifications in a text file (preferably named “CHANGES.TXT”) that you include with the documentation. That file must also include a statement like “These modifications are licensed under the TAPR Open Hardware License.”
- You must include any new files you created, including any manufacturing files (such as Gerber files) you create in the course of making products.
- You must include both “before” and “after” versions of all files you modified.
- You may include files in proprietary formats, but you must also include open format versions (such as Gerber, ASCII, Postscript, or PDF) if your tools can create them.
TERMS AND CONDITIONS
1.1 This Agreement governs how you may use, copy, modify, and distribute Documentation, and how you may make, have made, and distribute Products based on that Documentation. As used in this Agreement, to “distribute” Documentation means to directly or indirectly make copies available to a third party, and to “distribute” Products means to directly or indirectly give, loan, sell or otherwise transfer them to a third party.
1.2 “Documentation” includes:
(a) schematic diagrams;
(b) circuit or circuit board layouts, including Gerber and other data files used for manufacture;
(c) mechanical drawings, including CAD, CAM, and other data files used for manufacture;
(d) flow charts and descriptive text; and
(e) other explanatory material.
Documentation may be in any tangible or intangible form of expression, including but not limited to computer files in open or proprietary formats and representations on paper, film, or other media.
1.3 “Products” include:
(a) circuit boards, mechanical assemblies, and other physical parts and components;
(b) assembled or partially assembled units (including components and subassemblies); and
(c) parts and components combined into kits intended for assembly by others;
which are based in whole or in part on the Documentation.
1.4 This Agreement applies to any Documentation which contains a notice stating it is subject to the TAPR Open Hardware License, and to all Products based in whole or in part on that Documentation. If Documentation is distributed in an archive (such as a “zip” file) which includes this document, all files in that archive are subject to this Agreement unless they are specifically excluded. Each person who contributes content to the Documentation is referred to in this Agreement as a “Licensor.”
1.5 By (a) using, copying, modifying, or distributing the Documentation, or (b) making or having Products made or distributing them, you accept this Agreement, agree to comply with its terms, and become a “Licensee.” Any activity inconsistent with this Agreement will automatically terminate your rights under it (including the immunities from suit granted in Section 2), but the rights of others who have received Documentation, or have obtained Products, directly or indirectly from you will not be affected so long as they fully comply with it themselves.
1.6 This Agreement does not apply to software, firmware, or code loaded into programmable devices which may be used in conjunction with Documentation or Products. Such software is subject to the license terms established by its copyright holder(s).
2.1 Each Licensor grants you, every other Licensee, and every possessor or user of Products a perpetual, worldwide, and royalty-free immunity from suit under any patent, patent application, or other intellectual property right which he or she controls, to the extent necessary to make, have made, possess, use, and distribute Products. This immunity does not extend to infringement arising from modifications subsequently made by others.
2.2 If you make or have Products made, or distribute Documentation that you have modified, you grant every Licensor, every other Licensee, and every possessor or user of Products a perpetual, worldwide, and royalty-free immunity from suit under any patent, patent application, or other intellectual property right which you control, to the extent necessary to make, have made, possess, use, and distribute Products. This immunity does not extend to infringement arising from modifications subsequently made by others.
2.3 To avoid doubt, providing Documentation to a third party for the sole purpose of having that party make Products on your behalf is not considered “distribution,” and a third party's act of making Products solely on your behalf does not cause that party to grant the immunity described in the preceding paragraph.
2.4 These grants of immunity are a material part of this Agreement, and form a portion of the consideration given by each party to the other. If any court judgment or legal agreement prevents you from granting the immunity required by this Section, your rights under this Agreement will terminate and you may no longer use, copy, modify or distribute the Documentation, or make, have made, or distribute Products.
You may modify the Documentation, and those modifications will become part of the Documentation. They are subject to this Agreement, as are Products based in whole or in part on them. If you distribute the modified Documentation, or Products based in whole or in part upon it, you must email the modified Documentation in a form compliant with Section 4 to each Licensor who has provided an email address with the Documentation. Attempting to send the email completes your obligations under this Section and you need take no further action if any address fails.
4. Distributing Documentation
4.1 You may distribute unmodified copies of the Documentation in its entirety in any medium, provided that you retain all copyright and other notices (including references to this Agreement) included by each Licensor, and include an unaltered copy of this Agreement.
4.2 You may distribute modified copies of the Documentation if you comply with all the requirements of the preceding paragraph and:
(a) include a prominent notice in an ASCII or other open format file identifying those elements of the Documentation that you changed, and stating that the modifications are licensed under the terms of this Agreement;
(b) include all new documentation files that you create, as well as both the original and modified versions of each file you change (files may be in your development tool's native file format, but if reasonably possible, you must also include open format, such as Gerber, ASCII, Postscript, or PDF, versions);
(c) do not change the terms of this Agreement with respect to subsequent licensees; and
(d) if you make or have Products made, include in the Documentation all elements reasonably required to permit others to make Products, including Gerber, CAD/CAM and other files used for manufacture.
5. Making Products
5.1 You may use the Documentation to make or have Products made, provided that each Product retains any notices included by the Licensor (including, but not limited to, copyright notices on circuit boards).
5.2 You may distribute Products you make or have made, provided that you include with each unit a copy of the Documentation in a form consistent with Section 4. Alternatively, you may include either (i) an offer valid for at least three years to provide that Documentation, at no charge other than the reasonable cost of media and postage, to any person who requests it; or (ii) a URL where that Documentation may be downloaded, available for at least three years after you last distribute the Product.
6. NEW LICENSE VERSIONS
TAPR may publish updated versions of the OHL which retain the same general provisions as the present version, but differ in detail to address new problems or concerns, and carry a distinguishing version number. If the Documentation specifies a version number which applies to it and “any later version”, you may choose either that version or any later version published by TAPR. If the Documentation does not specify a version number, you may choose any version ever published by TAPR. TAPR owns the copyright to the OHL, but grants permission to any person to copy, distribute, and use it in unmodified form.
7. WARRANTY AND LIABILITY LIMITATIONS
7.1 THE DOCUMENTATION IS PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTY OF ANY KIND, TO THE EXTENT PERMITTED BY APPLICABLE LAW. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, ARE HEREBY EXPRESSLY DISCLAIMED.
7.2 IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW WILL ANY LICENSOR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE DOCUMENTATION OR PRODUCTS, INCLUDING BUT NOT LIMITED TO CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR LOSS OF DATA, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 You agree that the foregoing limitations are reasonable due to the non-financial nature of the transaction represented by this Agreement, and acknowledge that were it not for these limitations, the Licensor(s) would not be willing to make the Documentation available to you.
7.4 You agree to defend, indemnify, and hold each Licensor harmless from any claim brought by a third party alleging any defect in the design, manufacture, or operation of any Product which you make, have made, or distribute pursuant to this Agreement.