Breathe In, Breathe Out:
How open hardware licensing
can help save the world
Jiri Svorc,a Andrew Katz,b
(a) Technology & IP Paralegal at Moorcrofts LLP, UK;
(b) Partner and head of Technology Law, Moorcrofts LLP, UK and Visiting Researcher, University of Skövde, Sweden
Abstract
As with any other open source field, there are countless far-reaching advantages in open hardware licensing, as opposed to its proprietary counterpart. This paper takes the example of a low-cost portable mechanical ventilator design and considers the effect of the application of the three different variants of the newly-released CERN Open Hardware Licence Version 2. This paper considers the importance of licensing, and demonstrates how open hardware licensing can facilitate efficient further development of a project, improve its safety and reliability, and encourage collaboration. Most importantly, open hardware licensing allows anyone to freely use, study, modify and distribute improvements to project design, and make, sell or otherwise distribute products made to that design, making it a cost-effective means of developing and deploying the device throughout the world, from the most developed to the most vulnerable territories. Finally, this paper argues that open hardware licensing also encourages economic activity whilst it protects third-party intellectual property rights.
Keywords
Open source; open hardware; licensing; CERN; ventilator; medical equipment; accessibility; CERN-OHL
Attaching a licence to a project that is intended to be made publicly available, so that it can be freely studied, used or possibly improved by anyone, may sound counter-intuitive but, in fact, it is necessary.
Attaching a licence would therefore make clear to other designers and manufacturers if and to what extent they may study, improve, use and distribute the design, and manufacture and distribute products made to it.
This would facilitate rapid adoption of the equipment and give other professionals an opportunity to review it. They could identify and correct any imperfections or create enhancements, making it safer and more efficient to use as a result.
The microcontroller on the Duemilanove (an ATmega 168 or ATMega 328) runs a simple piece of code: a logical loop where it responds to triggers (‘yes’ or ‘no’) to prompt action and deliver intermittent breaths to the patient. While the Arduino Duemilanove itself qualifies as an Available Component of the overall design, how is our analysis affected when we take into consideration the code which runs in its microcontroller? Nothing changes. Code executed by a processor is not a component of that processor, the same way that the orange juice we use to fill a bottle is not a component of the bottle. The licensing regimes of the code and the hardware on which it runs are thus decoupled. Because the code is not a component of the hardware design, it is no necessary consider if it qualifies as an Available Component.
This leaves potential licensees with an important question: how can we make sure that code and hardware travel together, i.e that users always get a working ventilator? The answer is that licensing the hardware under CERN-OHL is not enough. There are two options. Either the licensor can also license the code explicitly under CERN-OHL (as a separate unit, or as a combined microcontroller+code unit), or (perhaps because the licensor is unable to make the code available under CERN-OHL, potentially because of licensing compatibility problems), they can apply another appropriate open source licence to the code.
Shouldn’t we expect that software running on a board licensed under CERN-OHL-S be released under the CERN-OHL-S or another open source licence? No: and the reason for this is pragmatism. To explain, we provide an example.
We already know that the Arduino Duemilanove qualifies as an Available Component under CERN-OHL-S, because anybody can buy one. For the sake of argument, let us see if it would qualify as an Available Component under another heading. Because the Arduino Duemilanove is itself open hardware, since the designs are freely available on the Arduino website, under a Creative Commons Attribution-ShareAlike (CC-BY-SA) licence, it might be considered that the Duemilanove is also available as Complete Source under a Compatible Licence. This is one of the ways a component can qualify as an Available Component under CERN-OHL-S (section 1.7(a)).
Should Arduinos become distributed under CERN-OHL-S or -W (and we would ask that the rights holders of Arduino designs give serious consideration to dual-licensing them to enable this to happen), then the ventilator-custom Duemilanove would be capable of being regarded as an Available Component under section 1.7(a) (“licensed to You as Complete Source under a Compatible Licence”).
Another important difference between the -S and the -W variants is that a -W design can be merged into a larger design through a defined interface and the licensee doing this would not be expected to release the design details of the larger design. This is in contrast with the -S variant, whose strongly-reciprocal effect would result in an obligation to release the whole resulting merged design under CERN-OHL-S.
Finally, as expected, the “permissive” variant, CERN-OHL-P, permits the use, modification and redistribution of the design in any proprietary design. This may be particularly attractive to some businesses, as it allows them to develop the design and make products to it without having to release the design documentation. It’s important to realise that designs licensed under any variant of CERN-OHL can be produced in a commercial context: none of the licences prevent commercialisation of the product, but the reciprocal variants do require the design documentation to be made available (and potentially used by competitors).
There are numerous alternative licences that may be considered for licensing the ventilator project, such as Creative Commons Non-Commercial licences (CC-NC). By explicitly excluding re-use scenarios leading to monetary compensation or other commercial advantage, these licences appear to serve public interest. However, this is not necessarily the case.
Licensing a project under a CC-NC licence only imposes non-commercial use on the subsequent use of the project by third parties, not its commercial exploitation by the original rights holder (assuming the original rights holder holds all the rights, and has not acquired some of the rights through the involvement of a community of contributors who have themselves contributed back to the project under a CC-NC licence).
As a result, the original licensor may effectively become the exclusive commercial user of the project and protect its commercial interests.. This may also negatively impact the ability of a community to coalesce around the project. It also creates the added complexity thatany improvements which are made to the design and which are re-submitted to the project under an NC licence, cannot be used by the original licensor (or anyone else) on a commercial basis.In addition, the terminology of CC-NC is subject to some dispute as to what constitutes a commercial advantage; this can range from profits to reputation, short-term to long-term.
It’s also important to note that in the world of software, the raw materials – zeroes and ones – are free of charge and in infinite supply. Hardware, by definition, requires atoms which (almost always) need to be purchased, and therefore, it is almost impossible for an open hardware project not to involve the injection of commerce at some point.
For these reasons it makes sense for a licence which permits commercial use to be relied on, but also one which encourages the sharing of designs and their improvements (including production engineering improvements, and market-specific improvements), and allows suitably equipped makers to collaborate with minimal friction to provide a suite of the best designs available for different markets, different applications, and different locations. Either the CERN-OHL-S or CERN-OHL-W would be ideal for this purpose.
The Creative Commons licences expressly exclude patent licensing, which means that a participant in the ventilator project which holds patents could simultaneously license the copyright in their designs in an open way, and at the same time withhold any patents necessary to produce and use those designs. This would seem unfair and unreasonable, and the CERN-OHL licence suite is intended to address this issue. It does so in the same way as many more modern open source software licences, by both providing an explicit patent licence covering contributions made to a project, and also with a patent retaliation clause which removes rights granted to a licensee should they start attacking a licensor for patent infringement in relation to the design.
A particularly attractive feature of the reciprocal versions of CERN-OHL is the requirement that a licensor may apply to ensure that details of a Source Location are provided on any Product made to the design, whether on the design itself (for example, a short-form URL placed onto an object as part of the 3D printing process, or silk-screened onto a circuit board), or on its packaging or documentation. This requirement may be particularly powerful if the Source Location details are placed onto the ventilator itself. If anyone can easily track down the design documentation, they can also use it to troubleshoot and fix any problems, even if they do not intend to replicate the entire device.
We recommend that any projects releasing open hardware designs for ventilators should give careful consideration to licensing them under CERN-OHL-S or CERN-OHL-W (either v2 or any later version). We also suggest that they consider licensing any necessary software or firmware under the same CERN-OHL licence, either separately, or as part of the whole design. If that is not possible, then we recommend consideration is given to an appropriate copyleft licence such as a version of the GPL or LGPL.
We contend that this enables commercial entities to collaborate easily to create the physical product, while at the same time allowing appropriate protection for patents, third parties and users. It also potentially means that, should the same reciprocal licence be employed, it becomes very easy to mix components between different designs where necessary, and also to potentially locate the relevant information necessary to maintain, fix and operate the devices in the field.
Jiri Svorc works with Moorcrofts LLP as a Technology & IP Paralegal, having previously worked with law firms in the Czech Republic, the Netherlands and Luxembourg as well as with the European Commission in Belgium. In various roles, he participated in advising businesses as well as public sector organisations on technology, intellectual property and commercial law matters as well as personal data protection and cyber security. Most notably, he has participated in cross-border technology transfers, and advised the largest global technology companies as well as developers of disruptive technologies. Jiri has a keen interest in open source software (he has written his postgraduate dissertation on using open source code in proprietary software), key specialisms of the Technology Team at Moorcrofts and rapidly expanding fields in the industry and has been working with Andrew Katz in this area. Jiri holds a postgraduate qualification from Queen Mary, University of London, has completed his legal practice exams, and plans to qualify as a solicitor.
Andrew Katz is the Partner and head of Technology Law at Moorcrofts LLP, UK, and head of the Technology Department. He has been practising technology law for over 20 years, having previously been a programmer and accredited NeXT developer. He has a particular interest in free and open source software, open data and open hardware. He studied Law at Cambridge University, qualified as a barrister, and subsequently re-qualified (and practises) as a solicitor in England and Wales. He is also a solicitor (non-practising) in Ireland. He lectures and works extensively worldwide. He was on the core drafting team of the CERN-OHL 2.0, drafted the Solderpad Open Hardware licence, and advises the European Commission on Open Hardware policy. His work has been published by Oxford University Press, Edinburgh University Press and others. He is deputy chair of the IP and Open Source advisory group of the United Nations Technology Innovation Labs, a visiting researcher at the University of Skövde, Sweden, where he has co-authored several papers, one of which has been used as the basis for Swedish government procurement policy. His most recent publication (2020) analyses the applicability of Roman Law, to the internet, with specific focus on autonomous intelligent agents.
Licence and Attribution
This paper was published in the Journal of Open Law, Technology, & Society, Volume 11, Issue 1 (2019). It originally appeared online at http://www.jolts.world
This article should be cited as follows:
Lastname, Firstname (2019) 'Breathe In, Breathe Out: How open hardware licensing can help save the world',
Journal of Open Law, Technology, & Society, 11(1), pp 49 – 56
DOI: 10.5033/jolts.v10i1.139
Copyright © 2020 Jiri Svorc, Andrew Katz.
This article is licensed under a Creative Commons Attribution 4.0 CC-BY available at
1Abdul Mohsen Al Husseini, Heon Ju Lee, Justin Negrete, Stephen Powelson, Amelia Servi, Alexander Slocum, Jussi Saukkonen, Design and Prototyping of a Low-cost Portable Mechanical Ventilator, Proceedings of the 2010 Design of Medical Devices Conference (2010)
2See https://www.instructables.com/id/The-Pandemic-Ventilator/ and https://medium.com/@RobertLeeRead/the-state-of-open-source-ventilator-projects-as-of-march-21st-1f36bfb608b4, both last accessed on 24 March 2020
3See https://phys.org/news/2010-07-students-low-cost-portable-ventilator.html, last accessed on 24 March 2020
4See https://e-vent.mit.edu/, last accessed on 31 March 2020
5See https://ohwr.org/project/cernohl/wikis/Documents/CERN-OHL-version-2, last accessed on 30 March 2020
6Other unregistered intellectual property rights such as unregistered design right, or database right, may also apply to aspects of the design materials, in various jurisdictions.
7S. 213 and 226 of Copyright, Designs and Patents Act 1988
8For example, see fair use provision of s. 107 of the United States Code. Likewise, Article 30(2) of Copyright Act of the Czech Republic stipulates that “copyright shall […] not be infringed by anybody who for his own personal use makes a fixation, reproduction or imitation of a work.”
9See https://ohwr.org/project/cernohl/wikis/Documents/CERN-OHL-version-2, last accessed on 24 March 2020
10See, for example, https://openuk.uk/, or https://www.gov.uk/guidance/be-open-and-use-open-source, both last accessed on 25 March 2020
11The European Commission has recently opined that open source hardware could constitute a cornerstone of the future of Internet of Things (IoT) and the future of computing. See https://ec.europa.eu/digital-single-market/en/news/workshop-about-future-open-source-software-and-open-source-hardware, last accessed on 25 March 2020
12See https://ohwr.org/project/cernohl/wikis/uploads/ee7922912e58f8676e1d7ff841b391cb/cern_ohl_s_v2.pdf, last accessed on 24 March 2020
13See https://ohwr.org/project/cernohl/wikis/uploads/b94a1a92b29984226c56a0dd4dca0d39/cern_ohl_w_v2.pdf, last accessed on 24 March 2020
14See https://ohwr.org/project/cernohl/wikis/uploads/055bd8b281d0805a3a38188838b370e1/cern_ohl_p_v2.pdf, last accessed on 24 March 2020
15CERN-OHL-S, sections 1.3 and 1.8
16Ibid, section 1.7
17CERN, CERN OHL version 2 An Introduction and Explanation, available at https://ohwr.org/project/cernohl/wikis/uploads/0be6f561d2b4a686c5765c74be32daf9/CERN_OHL_rationale.pdf, last accessed on 24 March 2020
18CERN-OHL-S, section 1.7
19There is also an exception for components which are part of the normal distribution of a tool used to design or Make the Product. This acknowledges that many toolchains in the world of hardware are proprietary, and that they are likely to include items such as primitives, themselves proprietary, which will unavoidably end up in the design. This exception is mainly aimed at chip design, and this paper does not consider if further.
20See https://www.arduino.cc/en/Main/arduinoBoardDuemilanove, last accessed on 24 March 2020
21https://certification.oshwa.org/
22Steven J. Vaughan-Nichols, MINIX: Intel's hidden in-chip operating system, available at https://www.zdnet.com/article/minix-intels-hidden-in-chip-operating-system/, last accessed on 30 March 2020
23A super-strong variant of the CERN-OHL which required that every piece of software and firmware within a design, including parts which were introduced by the tools, was suggested by people commenting on the licences during the drafting process, but it didn’t seem that there were sufficient use-cases for this to be worthwhile. Maybe as hardware becomes more open in the future, this will be an option for a future licence.
24CC-BY-SA 4.0 does contain a mechanism for allowing the out-licensing under a different compatible licence. The licences are selected through a process administered by Creative Commons. For example, it is possible to take a design licensed under CC-BY-SA and relicense it under GPLv3 (but not the other way around). It may be the case that CERN considers making an application to Creative Commons for one of both of the CERN-OHL reciprocal variants to be designated as compatible licences of CC-BY-SA 4.0.
25CERN-OHL-W, section 1.7
26Coronavirus disease (COVID-19) pandemic, see https://www.who.int/emergencies/diseases/novel-coronavirus-2019, last accessed on 30 March 2020