Howard Wen’s article on the mainstreaming of open source gadgets, reviews some of the roadblocks on the road to more open hardware, and yesterday, we excerpted his comments on the lack of open source culture in component makers.

Today, excerpts from his review on IP related issues. The original article has many links.

Howard Wen:

“1. The issue of intellectual property

A big question swirling around open-source hardware projects is the legal issue of intellectual property — who owns what (including the whole and the individual parts) in an open-source device, especially if several people are contributing designs? Brendan Scott, a lawyer who specializes in IT law and runs the Web site Open Source Law, strongly advises the creators and lead developers of such projects to address this matter before anybody agrees to make anything.

As for how this should be handled, he says there is no one-size-fits-all answer. “In some cases, it will be better for individuals to retain intellectual property [in what they contribute]; in others, it will be better to transfer it to some holding entity. The main thing about intellectual property in a project is to turn your mind to the issue before you start — or soon after you start — rather than when you finish. By not addressing the issue, you may discover that the issue has been decided for you, perhaps in a way you are not happy with.”

Michael Arrington, founder and co-editor of the TechCrunch blog, might agree. In July 2008 he announced plans to create a low-cost Web tablet, later dubbed the CrunchPad. While the hardware development process wouldn’t be fully open, Arrington’s idea was to “design it, build a few and then open source the specs so anyone can create them,” as he wrote in the announcement.

The project got off to a promising start as TechCrunch partnered with Singapore-based Fusion Garage to develop and manufacture the CrunchPad. In late 2009, however, the agreement fell apart when Fusion Garage announced its intention to sell the CrunchPad without TechCrunch’s involvement. Fusion Garage CEO Chandra Rathakrishnan claimed that his company had sole intellectual property rights to the device, while Arrington said both companies shared IP rights.

Fusion Garage plans to sell the device as the JooJoo tablet, and TechCrunch has filed a lawsuit against Fusion Garage. As of this writing, Fusion Garage has been taking pre-orders for the JooJoo, which the company’s site says “will ship in 8 to 10 weeks.”

Asked what legal steps or counsel he and his Frankencamera developer colleagues have taken to protect their hard work, Adams says, “In this regard, life is easier when there’s no money to be made. Because everything we do is as students of Stanford University, we have pretty good legal avenues available to us if someone should try anything nefarious. So far, though, the vast majority of what we have heard from the general public is interest, encouragement and offers of help.”

2. Applying current open-source licenses to hardware

Another legal matter is whether current open-source licenses apply to hardware, at least suitably enough. Most were drafted in the context of software, and this is evident in their wording: The commonly used GNU General Public License refers to “the Program.”

Scott of Open Source Law postulates that with a generous reading, existing open-source licenses could be applied to hardware projects without modification. “It is not too far-fetched to think of hardware plans and component lists as the source from which an ‘object’ — literally — is ‘compiled’ or ‘assembled,'” he says.

“The intellectual property landscape for hardware is a little different from that of software,” Scott continues. “Copyright applies to copies of software, but does not typically apply directly to copies of hardware, particularly for items for which their form is functional — although making a copy of hardware can result in an infringement for the plans from which the hardware is made.”

Scott anticipates that, over time, licenses will be customized or amended in order to cover issues faced by hardware created under open source. For example, the TAPR Open Hardware License was specifically designed for hardware projects. And the Arduino project, an open-source electronics platform with both hardware and software components, uses a license for the designs of its hardware that is separate from the license for its firmware (the operating software that runs on it).”