Good summary of the issue by Jonathan Kuniholm, on the Open Manufacturing list:

“Every single effort to tackle the problem of open hardware licensing has failed to acknowledge that it is unclear what we are licensing (TAPR, CERN, OHANDA, OSHW, you name it), and if any license will withstand a legal challenge. Open source software has a legal basis in the copyright of source code AND the executable–perhaps most importantly in the copy of the executable made in RAM at startup. Without a legal basis for ownership rights, there is nothing to license, and it is pointless to discuss the fine points of a particular license. This is like talking about the architecture of a building without a foundation, land on which to build, or funding. Choose your metaphor.

Open (source) hardware is completely different than software, precisely because there is no clear analogue to software source code and the copyright basis for its protection (I prefer to leave out “source” exactly because of the issue that I am raising, although I appreciate others’ fondness for it based on the ease and most useful form to modify).

The decision made by everyone who has addressed these issues so far has been “damn the torpodes,” and they have skipped straight to the discussions of license, because the basis question may indeed be intractable. I don’t think that it is, and the unfortunate effect of the “damn the torpodes” approach could be the creation of a poorly designed building that collapses, and poisons the environment for a better considered strategy.

Based on all of the discussions that I’ve been involved in, I believe that there are only two possibilities for a robust legal basis for a license. (1) the maintenance of a registered trademark and the creation of a community with open (source) hardware principles to which any user of the community, copyrighted source material, and the trademark itself must adhere, and (2) the creation of an SKDB-type common file format for sharing physical designs that duplicates the legal basis for open source software licenses.

The second possibility I think has been little discussed, and appeals to me a lot. Besides potentially addressing the need for open source CAD (or at least truly open CAD file formats), this second possibility could create the automatic legal protection for hardware that we have all simply been pretending in this community that we already have. The fact that the source file could be reverse engineered or firewalled is exactly the same risk that exists in software, and the creation of a file format (like software source code) that makes the use of GPLed software a path of least resistance could apply here as well. The fact that patent protection would be necessary to protect the underlying ideas absent the reuse of source is a problem and matter of debate in software as well.

The first possibility is a less solid one, but much more within reach. It is the one that OHANDA uses, and was in part inspired by the Sun license on OpenSPARC (http://en.wikipedia.org/wiki/OpenSPARC). It is interesting to me that the OSHW community ignored this possibility by at least initially releasing their logo CC, which would deny them this legal lever for control–indeed perhaps the only one they have.

What I believe that we are in need of here is for some smart law review students to tackle this issue for a note in a legal journal, informed and framed by as much of our experience as possible, to create a roadmap for the best case legal basis that we can come up with. Because of the difference in skill and mindset between the patent and copyright legal worlds, I think that hardware has been ignored by the open source legal types. I’ve reached out to the Center for the Public Domain here at Duke, but have been unsuccessful in interesting anyone in discussing this issue.

Once it is clear that there is actually a legal basis for any of this, i.e. something to license, then we can move on to discussions of what the provisions of any license might be. Anything else is a waste of time, and stands to cause harm by muddying the legal waters by creating a failed precedent.”