I'd like to explore some of the ideas around open source design as it applies to hardware. Let me preface these remarks by saying that they are my point of view and opinion.
The intent of open source is to make access to information unencumbered by legal restrictions and to be free of cost. When I open source something that I create, I want people to be able to take the plans and build them. It is a gift for the betterment of our global community.
The problem we run into is that society (in general, there are regional differences in law) is not set up to protect such a gift. If we do not protect our gifts to the world, we leave ourselves open to having them stolen - in the sense that they will no longer be freely available to other people subsequently. The two primary mechanisms used to prevent free distribution of design information are patents and copyright.
This problem was first encountered in the software world by a man named Richard Stallman (http://en.wikipedia.org/wiki/Stallman). Stallman (or rms as he is known in the software world) wanted to create a version of Unix (an early operating system) that he could give away for free. However, many of the basic concepts of Unix were tied down by copyrights (software patents came later). What he did was to re-engineer several key software tools from the ground up - with out using any of the commercially available software. These tools were to form the basis of the GNU operating environment (GNU stands for Gnu's Not Unix).
So, while he was able to create these new software applications that were free from previous restrictions, he encountered a problem. There was nothing to prevent someone from taking his work and filing a US Copyright on it and claim it as their own. Information in the public domain is free to be used by anyone - including someone who wants to file a patent or copyright on it. In 1989, rms developed a solution to this problem that he called the GNU General Public License or GPL.
The GPL has a very clever legal trick in it - one that was carefully reviewed by lawyers before it was released. It says that any GNU application is NOT in the public domain at all. In fact, all GNU applications are fully owned by the GNU Foundation. They own the intellectual property. Having established their ownership, the GNU Foundation proceeded to offer a use license to anyone who wanted to use their property free of charge, but subject to the terms spelled out in the license.
The GPL has two main provisions. All software distributions must include the source code and a copy of the license. Any changes must be distributed under the terms of the original license (this is the so-called viral aspect of the GPL). Finally, it must be distributed in either the original or derivative form for no money. Note that this final provision prevents anyone from making money off of a GPL protected application or design. RMS really didn't like software companies making money off of other people's ideas, hence this clause.
OSE's stance on these issues is (in part) described in the Open Source Ecology Paradigm (see http://opensourceecology.org/wiki/Open_Source_Ecology_Paradigm). In this document, Marcin declares that OSE is a distributive enterprise, working towards the end of economies based on artificial scarcity by making information resources transparent and freely available to all.
In Dec. of 2011, OSE released the Civilization Starter Kit DVD v0.01 (see http://opensourceecology.org/wiki/Civilization_Starter_Kit_DVD_v0.01). This DVD and the information included on it is distributed under the OSE License for Distributive Economics (see http://opensourceecology.org/wiki/License). This is the license that Marcin has chosen for GVCS products, which will presumably apply to the OSE Car and other products as they come along. It has the following provisions:
Based on Creative Commons Universal Public Domain Dedication Ethical adherence to the OSE Paradigm Intent to create a Distributive Enterprise
There are several problems with this as a license from a legal perspective but I don't think that's what Marcin had in mind. Rather, it is a declaration of a moral and ethical stance regarding word done by OSE and how it will be made available to the world. The main problem with this, as I see it, is that it doesn't prevent anyone from taking an OSE design, modifying it very slightly and filing for a patent on it. If granted, the patent holder could then enjoin OSE to cease distribution of "his" design.
An alternative approach, one that I favor, is the TAPR Open Source Hardware License (see http://www.tapr.org/OHL). Under the terms of the OSH (summary):
You may modify the documentation and make products based upon it. You may use products for any legal purpose without limitation. You may distribute unmodified documentation, but you must include the complete package as you received it. You may distribute products you make to third parties. You may distribute modified documentation or products based on it. If you create a design that you want to license under the OHL, you should (provisions follow) Any time the OHL requires you to make documentation available to others, you must include all the materials you received.
It specifically allows commercial products to be developed and sold without affecting the terms of the license.
Now let me say a few works about what this means for the OSE Car project. These are largely recommendations at this point, since neither Marcin nor OSE requires them.
Two main points:
A. Contributors to the OSE Car project should be prepared to assert that their work is original and not derived from older works that are protected by IP laws in any way.
B. The ownership of all work (drawings, designs, correspondence, assembly instructions, etc.) should be assigned to OSE so that it may grant such licenses it decides will further it's organization needs and ethics.
If WikiSpeed or Kinetic Vehicles decides to contribute earlier design work to be considered as the basis for an OSE Car design, they must be prepared to assert that the work is completely original and free of any IP restrictions, that they own the exclusive rights to it, and that they assign those rights in perpetuity to OSE.
One final word needs to be seed about COTS parts (Commercial, Off the Shelf). This is something that occasionally comes up in the software world, particularly around the use of databases. The OSE Car projects may choose to specify commonly available parts for inclusion in the design. I would recommend that such parts be either standardized elements (such as nuts and bolts) or specified as a generic part. The assembly instructions could require an oil pump such as the "Bosch Rexroth High Pressure Pump (HP008X)". The example mentioned (Rexroth HP Pump) is a proprietary part protected by several patents, but it's use in the OSE car is optional - any oil pump that meets the OSE Car requirement could be used.
This is actually an important consideration from an OSE perspective, since it is quite possible that (one day) OSE will describe how to make an oil pump using GVCS fabrication tools.
- Mark Norton
PS. Regarding my knowledge of open source licenses - I am the License Steward for the Kuali Foundation and I have contributed to license review and audits for the Sakai Foundation. While I am not a lawyer, I have read MANY variations on open source licenses and have a good understanding of how they are applied. I would urge OSE to have it's open source license policy reviewed by legal counsel.
PPS. The above explores intellectual property rights. Indemnification and liability protection is a whole other ball of wax.