Hardware Isn't Generally Copyrightable

In promoting Open Hardware, it is important to make is clear to designers the extent to which their licenses actually can control their designs. Under U.S. law, and law in many other places, copyright does not apply to electronic or physical designs. Patents do. The result is that an Open Hardware license can in general be used to restrict the plans but not the manufactured devices or even restatements of the same design that are not textual copies of the original. The applicable section of U.S. copyright law is 17.102(b), which says:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

There are similar statements in the laws of other nations.

The effect of this is that the license restricts the publication of a schematic or a laser-cutting plan, rather than the use of the schematic to make devices that are sold. You can control how people sell the plans with your license, but you can't keep them from commercially manufacturing and selling the devices with your non-commercial license, unless you have a patent.

However, certain elements of hardware are copyrightable, for example gate-array programs and the software that is installed in the devices. And of course laws on what can be protected, and how, differ from nation to nation.

We recommend that all producers apply an Open Hardware License to their work, for these reasons:

• Laws can change, and thus something that is unrestricted under the law today might be "all rights reserved" under the law tomorrow. The presence of a license helps to protect against such a change by explicitly granting rights that might otherwise be implicit in today's law and not tomorrow's.
• Laws are not the same from one state or nation to another. The presence of a license can work to grant rights unambiguously despite changes of venue.

Legal Notice

OpenHardware.org, the Open Hardware organization, and the people who edit this content are not your legal counsel. You are encouraged to go over this information with your contracted legal counsel. That is the only person who is allowed to give you legal advice.