I was contacted by a friend, a member of the OSCEdays community, who is running an excellent Open Source Hardware project with great potential for social, health and environmental impact:
“I was wondering what to do. We are working on new designs that are 3D printable but will need to be manufactured, still the idea is that the project is collaborative and open in the sense that people can help and join and the designs can be shared, or the knowledge about how it’s built, the technology, the materials, etc.
But at the same time it would be cool that it’s ok if anyone takes that and does it for a good purpose, but not that someone copies it, and for instance, makes a lot of money maybe even misrepresenting or saying they did it for instance.
So that would probably not really be open source in the strict sense I guess? Or what would be better? If you have any ideas it would be cool!”
As this is a question that is relevant to a lot of different people, I’m posting it here to allow other people to contribute to the discussion if they like. Feel free to add thoughts, corrections, criticisms, and opinions below!
Here’s my answer:
OK, I think you probably wanted a quick two-sentence answer, but the truth is, it’s complicated… there are a number of issues to consider before making this decision. Luckily I had a long train ride where I could write all of this up! Disclaimer: I AM NOT A LAWYER, do further research and consult legal professionals before you go around suing anybody. Let’s go through it piece by piece.
###MISREPRESENTING THE PROJECT
Somebody copying the project and claiming that they developed it - not you - would be infringing on the ‘Attribution’ clause of the current open source license of the project. You would first demand that they correct this error, and if they don’t, you would be able to take them to court.
This is the same with any of the Creative Commons licenses, and both CERN & TAPR Open Hardware licenses, so changing the license to something more closed would change nothing here.
If they are misrepresenting the brand name or trademark of the project, and you have a trademark, that is also illegal, whether the product is open source or proprietary. Remember that trademark and copyright are two completely separate areas of law. Having an open copyright license changes nothing regarding trademark.
Even if you don’t have a trademark, a court should stop another company trademarking it because of your historical use of the name.
###CHANGING TO A PROPRIETARY LICENSE
From what you’re saying, it sounds like you might be thinking about using a Creative Commons Non-Commercial license, right? As the leader and main author of this project, assuming you have the agreement of any other contributors to the design, you are of course entitled to choose any license you like.
But be aware that using a proprietary Non-Commercial CC license, or any license which doesn’t fit the OSHW definition, means that you can no longer call the project ‘open source’ - please read more about that here.
This may mean that are number of open source enthusiasts who would lose interest in the project if it were closed - I am one of these people, so I won’t pretend that I have an objective, unbiased perspective!
Although you have contributed by far the bulk of the work, dozens of people have put in time, resources, or social capital in different ways, helping your project get to this stage, and they did it in the understanding that it was an open source project.
I have personally contributed a small amount of work for free by publicising the project in different ways, and offering advice - I do so because in contributing to this project, I’m contributing to the commons.
It’s a matter of politics, yes, but it’s also a matter of efficiency, just like replying to you here on this public forum: my contribution helps a minimum of one person, not a maximum of one person. And I know many other people who feel the same as me.
Becoming a proprietary project is perfectly legal, but it may disappoint people who have contributed in the past, or deter people from contributing in the future.
I also see a Non-Commercial license as an awkward compromise which isn’t very fair to the commons. With an NC license, you can benefit from other people’s contributions, and Non-Commercial sounds really nice - most people don’t understand the implications of it. So you get all the warm and fuzzy publicity as if you had open sourced your project, but your project can’t benefit other projects - it’s incompatible with open source!
###HOW LIKELY IS THE SCENARIO?
You’re worried that someone will copy your design and make money from it.
Bear in mind that if your design is good enough and useful enough that other companies want to copy it, that’s a good problem to have. Especially when your project is designed to solve a bigger problem in society.
Before making any decisions about this, you should evaluate how likely this scenario is to actually happen, a what actions you would take if it did happen - here are some questions to consider:
- Do you have specific companies in mind who are likely to do this?
- Is there a history of this kind of thing happening in your industry, or with other open source hardware projects?
- Is there some particular secret sauce (or secret silkworm) of your project which the current industry does not have access to?
- Hardware companies copy each other all the time, open source or not. Are you sure that nobody will copy the product under a proprietary license?
- Are you prepared to lawyer up and take individuals or large companies to court?
- Which aspects of your product fall under copyright, design rights, or patent law? Do you plan to seek ‘protection’ in each area?
- If a big company makes a bunch of money from copying your design, does that necessarily mean that you will make less money?
- would having more companies making the product be beneficial or detrimental to reaching the social/health/environmental goals of the project?
I don’t have particular answers in mind for these questions, I just want to make sure you’ve thought about them before making a decision.
###BUS FACTOR
Here in the OSCE Association we’re very paranoid about buses.
‘Bus’ CC-BY Chris Brown on Flickr
We’re very aware how fragile projects can be when they depend on just one or two specific people, and when we’re analysing our infrastructure, looking at team members’ responsibilities or their access to information, we’re always asking “but what if you get hit by a bus?”
The basic idea is that we want the OSCE idea and the OSCEdays project to survive, even if something terrible happens, or if people just go incommunicado for some reason. This paranoia might be morbid, but it helps us be more resilient. Having things in public under open licenses helps with this.
I know that your goals for this project are about much more than just making yourself rich, and that you would want the project to live on, should something happen to you.
So I’ll ask you: “what if you get hit by a bus?”
If the project is under an open source license, somebody else can easily pick up where you left off. They can continue to attribute the design to you, while being able to build on and improve it with others over time, with commercial production supporting the development efforts.
If it’s All Rights Reserved, or under a Non-Commercial license, and you haven’t made any other prior arrangements, nobody else can do anything with it until it becomes public domain - that means waiting another 70 years in Europe (longer in other countries, probably never in the USA). So if you want to go proprietary, make sure you deal with this question in some way. An open source license is certainly not the only way to solve the problem, but it is by far the easiest.
###MY SUGGESTION
With all of that in mind, here’s my answer: in the hardware field, I don’t think you can reliably stop companies from copying the design if they want to, and I don’t think you should focus your energy worrying about it.
That said, I see two different routes for you which could do a lot to avoid harm from companies copying the design. One way is open, and the other is closed.
Closed method: Get patent(s).
There are a few requirements here:
A) your idea has to be (in theory) novel enough to be patentable.
B) you need to spend a bunch of money (whether your application for a patent is successful or not).
C) you need to get patents in all the jurisdictions that these evil copycat companies are likely to operate in.
D) you need lawyers to defend the patent.
E) you need to win the lawsuit.
Even so, there are likely still companies and countries where people just won’t give a damn if you have a patent - if they want to, they will copy you regardless.
Open method: focus on your brand and building a community.
In a conversation with the Apertus team, they put it the most succinctly: “you can copy the camera but you cannot copy the whole community we represent”.
If you’re just a normal company with a product developed in the usual way, and someone copies your design, yeah, that’s going to suck. So don’t just be a normal company.
Focus your development of the product not just on improving the hardware, but on inviting others to contribute and coordinate around the core project (experts in the field, NGOs with a similar mission to you, potential users of the product, and other interested individuals).
This is hard work in the beginning and it may feel like your time could be spent better working on the hardware, but investment in community members will pay off in the long run. Eventually this community can become your R&D team, sharing developments and ideas in your project forums, contributing improvements and so on. If your product is good, it’s going to be copied anyway, so you may as well have an active, enthusiastic team keeping you ahead of the rest of the market.
Promote and develop the brand, so that this idea, this product, is well-known and attached to your company name. This way, you’ll have an active group of contributors to the design and many other aspects of the project. I means a committed community of supporters as your marketing team, being ‘brand ambassadors’ (man, that’s some horrible marketing speak right there) and also looking out for you, so if there’s a company copying you in an immoral way, they can raise awareness and cause a PR ruckus.
But an even better approach is to embrace the copying. Rather than a fear, it should be an aim to have competitors producing your design, as it can get you further towards your ultimate goal! You just need to work out a motivation for them to do this in partnership with you (eg. access to the community, credibility and expertise is a big motivation for companies like Microsoft and Intel to work with Arduino, rather than go it alone) and you’ll need to work out a business model for it to make financial sense for you.
For more info on community building, you can read our Community Building Planner, or this blog post on the SCARF model for understanding motivations.
P.S. Perhaps you’re worried about people copying the project and not making it to a high standard, and with the potential result of it harming people. In that case, you’ve got a ‘warranty, safety standards and trademark’ issue on your hands, not a ‘copyright and patent’ issue. Different discussion for another day 
P.P.S. This is not necessary business advice here, but just my personal opinion. One of the reasons I love the open source process:
If an open source project is useful, it can be adapted, or combined with other open source solutions to become more useful, for a wider variety of different purposes. If you let it, it can develop semi-autonomously in completely unimagined directions - in terms of design, use case and business model.
Putting a proprietary license on it sterilizes this process, it reduces its evolutionary potential. Sure, a proprietary project can still develop and grow, but the beautiful, fascinating, exciting evolutionary process is basically replaced by a cattle farmer with a syringe full of bull semen. It’s a monoculture, not an ecosystem. And if a proprietary project is bought and shut down, it is really shut down. Nobody but the owner (or more likely, the investor) can reanimate the project at a later date - venture capital is particularly good at making projects disappear.