As open source software ("OSS") has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License ("GPL"), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of the overall, copyright-focused license. By contrast, open hardware ("OHW"), a relatively new entrant to the open source arena, does not have a robust ecosystem of potential licenses. Because of the many different types of OHW and the different types of intellectual property that are applicable at each stage of the OHW development cycle, crafting a single license to govern all aspects of OHW has proven difficult. This Article will explore the technical environment for OHW and the underlying principles and drivers of the open source community. The applicability of different forms of intellectual property at each stage of the OHW design/productization cycle will be discussed, along with the accompanying challenges presented by OHW. Finally, the Article will review existing licenses before proposing a new licensing approach that focuses on permissive instantiations of OHW and distribution in non-editable form to provide a different approach to building a robust OHW community.
30 Fordham Intell. Prop. Media & Ent. L.J. 1045 (2020)