We’re happy to share this recent article on CopyFair tendencies. It was written by Brian Loudon and originally published in loud1design.co.uk:

On Patents, Open Source Design and Reciprocity

I previously blogged on open source and IP here and I wanted to revisit this in a more concise way to focus in on the limitations of open source and commons approaches in the context of patents.

The Benefits of Open Source Design

Developing a product or technology in an open source way offers advantages to society and also the development team. For the core team they have the many eyes of the community on the key development issues, a form of giant, distributed R&D department. Building a strong network of collaborators and a vibrant community which will contribute to varying degrees also acts to build a market and a brand for the core team (whether they be a company, charity or foundation). For society, commonly held knowledge resources are created which has a great value both as an educational resource and making technologies available to communities around the world. It adds resilience and sustainability to our communities by allowing technologies to be re-purposed appropriately and also more easily maintained to minimise waste.

The Open Source Ecology project is a great example of this resilient commons based approach that is strictly open source in its approach. Their values statement encapsulates this:

“The end point of our practical development is Distributive Enterprise – an open, collaborative enterprise that publishes all of its strategic, business, organizational, enterprise information – so that others could learn and thereby truly accelerate innovation by annihilating all forms of competitive waste. We see this as the only way to solve wicked problems faster than they are created – a struggle worth the effort. In the age where companies spend more on patent protectionism than on research and development – we feel that unleashing the power of collaborative innovation is an idea whose time has come.”

The funding model for OS Ecology seems to be based around two main sources, crowdfunding/donations and charging for educational workshops teaching others to build and use the machines they have designed.

The Limits of Open Source Design & the Need for Reciprocity

Michel Bauwens of the P2P Foundation however emphasizes the need for reciprocity, suggesting, “the more communistic the licence, the more capitalistic the outcomes”. Making the case here that with open source projects eg. Linux, a profit maximising company can come in and make massive profits using the commons resource of the stable body of code at the centre of the Linux project.

This means that the value of the commons provided by free labour is being exploited by private companies and that they are not then obliged to give back to the commons to sustain it financially.

To this end, Dmytri Kleiner, has proposed the Peer Production License (PPL) whereby free use is granted to non-profits and coop entities, but commercial entities which make no contribution have to pay a license fee. Michel Bauwens has termed this an example of a Commons-Based Reciprocity License (CBRL), which has been further developed into Copyfair. These proposals suggest a means to create a self-sustaining commons of knowledge that accepts wider community contributions and at the same time provides for funds to enhance and grow a core team of curators for the project.

 The nature of IP – Copyright and Patents Are Very Different

Importantly, however, for the discussion of the application of open source in physical designs, a CBRL/copyfair licence would be based on copyright, as with creative commons or copyleft style arrangements. Now, copyright is an automatic right in most countries, so in adopting a copyleft, copyfair or other licences you are then disposing of a recognition of ownership that you already have.

Patents, on the other hand, are territorially based and ownership is granted by the relevant state authorities following a relatively lengthy procedure with very real financial costs. This is largely incompatible with distributed open innovation particularly as secrecy (non-disclosure) must be maintained up until a patent is filed.

This means that an open source physical design could have the schematics and drawings of a design’s implementation covered by a CBRL but in terms of fundamental principles which would be patentable, the commons could not be protected in this way.

In fact, when we look around at the more popular open source design and open source hardware projects, such as the Ultimaker,  the (original)Makerbot or Reprap, they are all based on expired, existing patents. They do not, in general, propose new technologies that would be patentable, though interestingly, when Makerbot was bought out by stratasys, it then filed a patent and released a range of closed-source models to the market. This eventually led to conflict with the original supportive community that had grown around the original open source Makerbot. Makerbot were accused by the community of stealing ideas and attempting to patent them, an enclosure of the commons. The community reacted with the hashtag #takerbot on social media.

 Pragmatic Conclusions

Reliance on copyright and copyleft in a classic Open Source project leaves collaboratively produced product innovations in the paradox highlighted by Michel Bauwens: that the more communal the license, the more commercial interests can exploit them without contributing to sustaining the innovation process that generated them.

If an open source project were conducted in secret, however, it would not be able to leverage the network benefits of the distributed development resource of the online community and would be forced back into the standard model of investment, patent acquisition and defence.

Conversely, if a development is carried out in a truly open model with disregard for how patents work, the open community could find its work enclosed at a later date by a proprietary patent as seen with the Makerbot community.

As a practising designer and engineer I am looking to launch a technology project and I want to embed the values of open source communities in its development. In particular, I want to ensure that the technology is not used for military applications.

I have come to the conclusion that a patent is needed to establish a “property” which I can then licence at a lower fee to non-profits in a way that reflects the goals and spirit of the CBRL. The core technology will then be a basis for an open source community platform around which developments and applications grow. Any licensing fees to larger profit-maximising companies will then feed directly back into sustaining this platform. The challenge then is to reach the stage of obtaining patents in key territories without requiring external investors who do not share these goals.

2 Comments Patents and the Limits of Open Source Licenses

  1. Sam Muirhead

    thanks for some interesting perspectives. Though I do have 3 points of disagreement:

    1. Linux is a terrible example if you’re trying to suggest that profit-maximising corporations do not contribute to the commons.
    The Linux kernel is built by corporations and recieves billions of dollars in corporate investment. It is an extremely well-funded project built by employees of Red Hat, IBM, Google, Samsung, Microsoft, and others. The high quality of the linux kernel is of also huge benefit to the entire F/LOSS ecosystem and the GNU project. Presenting Linux as a little community project of commons hackers which is being taken advantage of by external corporations is ridiculous. I don’t deny that the freeloader problem exists in some corners of the commons, but please find a better example when making your case.

    2. At least in theory, if patent law works as it is supposed to, having published designs online with a verifiable history of development shows ‘prior art’ and should certainly invalidate any later-filed patent from a third party. I didn’t follow the Makerbot case though so I can’t say if this always works in practise. (as with many of these things, I assume that those with the biggest legal fund will win… which is not necessarily an endorsement of your suggestion for commons projects to seek patents – you need money to defend them)

    3. I admire the general goal of strengthening the commons and eliminating freeloaders, though I’m very critical of the practical implementation of any CopyFair license.
    For example, what happens if an organisation’s status changes? how do you define military use? how do individuals fit in? how do you effectively police the license? Who makes the decision if a case ‘could go either way’? If it is the project initiator who does so, how do CopyFair-licensed projects with different initiators combine in downstream derivative works? It’s also important to remember that CopyFair-licensed projects are incompatible with existing copyleft commons, i.e. I can’t both share alike under copyleft and share alike under CopyFair, so they can’t be combined).

    One huge benefit of existing copyleft licensing is that it is relatively easy to use and understand, without having to investigate and verify a particular person or organisation. There are just two factors which in most cases are simply verifiable: (attribution? check. sharealike? check.)

    Licensing based on the person/organisation/field of use massively increases the bureaucratic overhead for the project initiator. It also puts up further hurdles (having to ask for permission in most cases), increases legal ‘grey area’ and discourages collaboration on a project, because of uncertainty over whether someone may qualify, or whether they will still qualify in the future.

    So at this stage, I don’t think that a CopyFair approach can succeed alone. My personal approach to ensuring a commons-biased licensing strategy would be a form of triple licensing:

    1. project available under copyleft (GPL, CC-BY-SA, CERN OHL) to ensure the growth of the commons and instant, permissionless access.
    2. fee-based licensing for specific uses where an organisation/corporation cannot/does not want to sharealike
    3. fee-waived licensing for non-profits/coops where they cannot/do not want to sharealike.

  2. Brian

    Hi Sam, thanks for taking the time to read my post, I’m glad of the debate as I really am genuinely trying to find my way towards a course of action in my own work. Just to go through your points in turn;

    1 – Yeah you’re right to pull me up on that, it certainly is true that the commercial entities around linux do contribute back to the projects. Maybe that is the way to think about open source projects which can scale? They are projects which are useful to a range of commercial companies around a platform such that it is in their competitive interest to contribute to it and keep that community alive?

    I am really focusing on the development of physical products and how that could scale beyond the hobbyist/maker scene and I am particularly concerned with the arguments made by Michel Bauwens at this point in the above video; https://youtu.be/KMV4cqRgV6Q?t=912 when he talks about OS from the point of view of the individual and how to basically make a living. This is a point I was raising in my longer form post about the self-sustaining of the commons http://www.loud1design.co.uk/open-source-product-innovation/ , if you volunteer to an OS project and the only way to actually make a living is to be in the end recruited to say Red Hat, OS Design is unlikely to ever challenge or supplant the way things are done now.

    I think it is hard for us to quantify the freeloader problem at the moment but if there is more scale to OS Design projects it may well be a significant issue. Particularly as with manufactured goods we don’t necessarily have the same manufacturing base in Europe as say China and any OS project could be very efficiently produced and shipped to the shop next door to an EU fablab before the end of the week. So what worries me is that you have freeloaders with better manufacturing equipment, supply chains and market access than any OS project starting out.

    Following posting the article to twitter I had an interesting exchange with C. Sven Johnson (@rebang on twitter) about a project he launched on kickstarter looking to crowdfund a toy project with the intention of protecting IP for the commons, really interesting to read his motivations and also the reflections in the updates section after the campaign didn’t come off ;

    https://www.kickstarter.com/projects/csven/100k-stray-toasthed-pull-toys

    2 – There are some grey areas here on the issue of prior art around what will actually be picked up on by IP courts as prior art. It seems that the strongest statement is to initiate a patent application and then abandon it. In the US there used to be a defensive publications system, but that has ended. Some links on that here;

    US defensive publishing
    https://en.wikipedia.org/wiki/United_States_Defensive_Publication
    https://en.wikipedia.org/wiki/United_States_Statutory_Invention_Registration
    http://patents.stackexchange.com/questions/83/how-to-make-an-invention-un-patentable-easily
    https://en.wikipedia.org/wiki/Defensive_publication

    EU spec on defensive publication
    https://www.iprhelpdesk.eu/sites/default/files/newsdocuments/Fact-Sheet-Publishing-v-Patenting.pdf

    There is an interesting dynamic that can happen if you go to a large company to sell an idea under an NDA or even with a patent pending, they can often then claim that they were already working on this idea under a quite broad patent application with some similar claims.

    This could be important even for an explicitly open source project as if a patent application is granted to the likes of stratasys say, then they could limit an open source company that has some scale to it, like Ultimaker, from selling into one or more markets. In this way I think that patents can pose a risk of “re-enclosure” of a body of work in the commons.

    Here are a few links on the Makerbot case further to the one above in the post (which contests an application about multi-colour extrusion);

    Here makerbot responds about a quick release feature;
    https://techcrunch.com/2014/05/28/makerbot-responds-to-critics-who-claim-it-is-stealing-community-ip/
    Here Cory Doctorow defends Makerbot;
    http://boingboing.net/2014/05/30/whats-the-story-with-the-mak.html
    Where he makes a fair case, interestingly though you can see how quickly it all focuses in on the date of filing the application and the dates and very specific detail of the open source contributions. Regardless of the specifics of this case there is an inherent asymmetry of power here as the community can’t afford to make any legal representations to contest the newly corporate makerbot over this.

    Here’s another article on the makerbot story – which more focuses on whether or not makerbot misread its market, but I think the more interesting point here is how it transitioned from a small scale maker project to a corporate venture with investment capital.

    https://backchannel.com/the-3d-printing-revolution-that-wasnt-60b000c3a3ed#.pwx1qvebb

    From what I can see the makerbot patents are still pending, but it is important to note that these will be features that a rep-rap or an ultimaker will not be able to adopt. So what I’m trying to say is that yes it is a fundamental problem how could a commons pay for and defend a patent, but it is also true that an OS project may have to defend itself from infringement claims in any case.

    3 – Most of the points you are making here are about copyfair as a proposal, what I am trying to say is that I agree with the intention behind it but it doesn’t cover patent-like IP only the weaker copyright of that particular drawing or file you have created. The drawing or 3D files released may not be seen as a concise statement of the inventive step that could be considered prior art and the invention could be patented.

    I agree with you that there are governance issues around copyfair and the most promising concrete ideas on how to implement this seems to be with the idea of ”Open Value Networks” proposed/practiced by Sensorica and Enspiral. In terms of enforcement, this can only ever come down to the legal jurisdiction you are in, enforcing one of your photos getting ripped off from flickr for an ad campaign isn’t easy! It’s a very good point about derivative works, but with strict copyleft on software is it not already tricky in that respect?

    I think how individuals are involved, credited and are remunerated if the project starts to scale are already difficult governance issues even under current OS licenses, if you look at some of the issues around Arduino for example around ownership of the brand and crediting authorship;
    https://arduinohistory.github.io/
    http://hackaday.com/2015/07/23/hackaday-interviews-federico-musto-of-arduino-srl/

    Lastly, for me the military issue has arisen because as a designer and engineer I was expected to work on a defence project and after some thought I quit that job with that consultancy. I am looking at doing something in additive manufacture and when I see horror visions of future 3D printed military hardware like the link below, I’d rather not be contributing to this!
    http://newatlas.com/bae-systems-grow-future-aircraft/44213/

    Again really appreciate your points, as I say I am trying to explore this fully to make sure any project I set up has the right values at its core and an approach to IP that backs that up.

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