On Creative Commons and Open Source

When you ask someone what license they are using for their open source hardware project, you’re quite likely to hear the answer “Creative Commons.”  And unfortunately, that doesn’t fully answer the question.

The reason is that there is not a single entity called the “Creative Commons license.” Rather, Creative Commons offers a number of different licenses that can apply some rights and protections to your work, including the CC-BY and CC-BY-SA licenses which reflect open source values closely.  In the 2012 and 2013 surveys these licenses were, in fact, the most popular licenses used for open source hardware documentation. (Creative Commons licenses cannot be applied to the hardware itself.)

Creative Commons also offers licenses that carry restrictions — against commercial use and/or derivative works — that are strictly incompatible with open source¹.  The open source hardware definition states that a license for open source hardware “[...] shall allow for the manufacture, sale, distribution, and use of products created from the design files, the design files themselves, and derivatives thereof.” Thus, if you choose to release hardware under the banner of “open source,” that means that you agree to allow others to use your design commercially, as well as to create derivative works (and to use them commercially). Consequently, you cannot advertise your project or product as “open source” if it carries restrictions against either of those uses.

To enumerate the particulars, the following licenses are compatible with open source values:

  1. Creative Commons Attribution (CC BY)
  2. Creative Commons Attribution-ShareAlike (CC BY-SA)
  3. Creative Commons Public Domain Dedication (CC0)

While the following licenses carry restrictions that are not compatible with open source:

  1. Creative Commons Attribution-NoDerivs (CC BY-ND)
  2. Creative Commons Attribution-NonCommercial (CC BY-NC)
  3. Creative Commons Attribution-NonCommercial-NoDerivatives (CC BY-NC-ND)
  4. Creative Commons Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)

Here are some more resources about the issue of NC and open source:

To continue the discussion we’ve also posted this topic in the forums.

¹The Open Source Hardware Definition itself is a derivative work of the Open Source Definition (for software), and its language regarding commercial use and derivatives of OSHW is directly adapted from the language in the software context. Restrictions against commercial use and/or derivative works are incompatible with open source hardware, and also incompatible with open source software.

8 thoughts on “On Creative Commons and Open Source

  1. Pingback: On Creative Commons and Open Source « adafruit industries blog

  2. Taking the usual precautions (ianal, tinla), I think there are at least two issues at hand. One is the incompatibility of open and cc-options (as you point out), the second is the incompatibility of hardware with copyright.
    (1) I guess you’ve summarized it to the point: anything else than cc-by, cc-by-sa and CC0 is not in the spirit of whatever-we-call-it-(but-preferrably-not-open-source)
    (2) hardware (oversimplified: “useful things”) is not automatically “protected” by “IP” legislation (much different to “beautiful things” that are automatically “protected” by copyright on publication) … so a license is non-sensical (as “license” means: you are allowed to do what normally would be prohibited), and there is debate if “open hardware licenses” are legally meaningful or void (that’s what I understand from the legal discussion).
    Nonetheless, even if a hardware license is (legally) nonsense, it is a communication device to signal “that’s who I mean my stuff to be handled”. But on that level, ie. when the legal meaning is void anyway, the NC and ND clauses become different animals. And that’s worth looking into. Still we need to acknowledge that legally (and aiming for what you call open source) they are utter rubbish. And maybe even on communication-face-level they are rubbish too (e.g. NC meaning that “if somebody is making money off it I want my fair share” — vs. “If you are not able to extract money from your brilliant thing you’re maybe just not as brilliant as you think, at least commercially”)

  3. 22 June 2014

    I really have a lot of issues with this post, especially with Mr. Troxler’s interpretation. At the risk of over simplification, there are really just two attitudes for dealing with the open communitiy:

    1) “From each according to their ability, to each according to their need.” and

    2) “Life is about opportunistically manuevering to exploit as many people as you can and gain as much as possible before you die.”

    It is pretty clear Mr. Troxler is in the latter camp, while the original post by Alicia is, at first blush, in the former, although there seems to be some confusion. So let me provide a little history and some clarification of terms.

    Arguably, Richard Stallman’s GPL 1.0 was the first open source license. According to the interpretation of the term “non-commercial” implied by context here, that license does not meet the conditions for inclusion in the definition of “open source”. Specifically, the GPL 1.0 excludes commercial uses without written permission, and I believe that restriction remains in force in both the GPL 2.0 and 3.0. That is why there is the LGPL – Limited Gnu Public License. It is for use with software (typically libraries) that may be used by proprietary commercial code, without any special permission. Such use does not, however, permit the proprietary user to carpet bag the code and claim ownership – the open code remains open for others as well.

    So we need to be clear about what we mean by “non-commercial”. Contrary to Mr. Troxler, it is not about making money, or the narrow selfish motive of “I want my share”. It is about access. If I create something, whether software or some widget, and I choose to make the design details freely available to others, no one has the right to take that and shut others out down stream. I gave it to everyone, not to the biggest, cleverest bully on the block.

    In fact, there is a nice legal precedent where this idea was enforced: the Linksys router case. They incorporated GPL code in their microcode and were forced to release the proprietary portions. One result is the openWRT community – reprogram your router and make it do things the manufacturer never envisioned.

    The take home lesson is this: if you want to shut others out, by all means do so. That means you do all the work so you can legitimately claim ownership. But if you use the generosity of others, and then shut out others, you are effectively claiming ownership of something that is not yours. Yes, you might get away with it, but you might also be challenged, and if you are, you will lose, because what you did is wrong. It is that simple.

    So if I place a non-commercial restriction on something, I am not saying “hey! I want my cut!”. I’m saying “if you want to use my work commercially, then have a little courtesy and ask – I want to know about it.” I’m also saying “I didn’t do this for opportunistic parasites, I did it for the benefit of my community. If you really like my work, maybe I can help you out, maybe we can work together.” As is always the case in open work, money may change hands. Again, the license is not about money, it is about access.

    Now that we understand the precedents that inspired open hardware, let’s have a look at what changes with hardware.

    First, if I have in my hands some widget, proprietary or otherwise, and I own it outright, not as a leasehold, or subject to payments, I can do whatever I damn well please with it. The only question is, how hard is that going to be. I’ve opened up, inspected, repaired, and destroyed more machines and gadgets than most people will in a lifetime. It is my hobby – I enjoy it. Sometimes my motive is to harvest parts, sometimes my motive is to adapt to a new purpose, and sometimes it is just to satisfy my curiosity. It is not a crime, and never should be. If I want to smash it with a hammer, that is my right – I paid for it. The worst that will happen is any warranty will cease.

    Notice software is different. If I disassemble a Microsoft binary (as many, many have – if you want to talk about unenforcable) I have violated the license and am liable for criminal charges.

    In the case of open software, you are invited to look, in fact you don’t need a disassembler – the source is handed to you. This is what open hardware is: you are handed the design. You don’t need to reverse engineer, you don’t need to probe and twiddle and interpret. It is given to you. In short, you have access and are invited in. That is what the open community is about. Everyone is welcome, even Mr. Troxler.

    Now this is the important point: the design is not the widget, just as the source code is not the compilation. The design is a written work and is subject to copyright automatically, just as code is, just as a bad novel is, just as the latest blockbuster screenplay is.

    It is important to distinguish between the the intellectual property (the design) and the manifestation (the physical manufactured object).

    In this light, I can, for example, design a tablet computer. Its really not that hard – open one up sometime – they’re pretty basic. I can publish that design without even bothering to build it, although it would be better to prove the design by making at least one. I can say “here, the fruit of my labor, use it if you find it useful, anyone, really.” I give you access.

    I can also say “you can’t use this if you are going to lock it up”. That is what non-commercial means. It is not about money. You can’t claim it as your own just by adding in some proprietary stuff. I didn’t give it to you for that, I gave it to you so you could give it to others. Remember, I am talking about the design, about engineering documents, no different than code. You can use my design to build something and make money, fine, just tell people where the design came from. You can use my design and add some special secret stuff to what you build, just don’t tell your customers they can’t access the stuff I gave you, because I gave it to them too, and if that means you have to tell them your secrets, tough. Either tell them, or don’t use my design.

    This too has precedence. The licensing of MIPS and ARM processor cores depends on these ideas. There are examples of chips with these cores that also contain secret stuff. The MIPS core is especially open – there is nothing to prevent anyone from independently implementing these architectures – but you can’t use their branding, and that more than anything is what makes them propritary. In open hardware, you open your branding. I use python. Python is a brand. It is open code, and they permit me to say “I embedded a python interpreter in the user interface”.

    I can’t create an ARM processor and call it ARM. AMD can’t create an intel x86 processor and call it a pentium or a celeron, or an atom. They call their stuff athlon and duron and geode. The architecture is public; the designs and branding are proprietary.

    Open hardware proposes to change that. Open hardware proposes to give access: welcome, here is my design, here is my brand, use it, promote it, just don’t call it your own, and don’t try to lock others out. “Non-commercial” has its place in hardware, just as it does in software.

    “Non-derivative” is not about hacking, or making, or adapting. “Non-derivative” is about conformance to quality standards. What that means is, if you use my brand, then make sure your customers are actually getting what I gave you – a great design. Don’t make some second rate cheesy knockoff and call it by my branding. By all means, take the design and change it, but call it something else. For example, Xcb was derived from Xorg, which was derived from X11. Xcb is not X11. Don’t call it that. In the authorship context, “non-derivative” means, don’t rewrite my brilliant essay into some racist, garbled, polemic and say I wrote it – I didn’t. It means, don’t even correct my grammar, spelling, and punctuation. By all means, take the ideas and re-express them. Cite me as a source even, but don’t say I wrote it, because I didn’t.

    The open community is about honesty, not opportunism, and it is the way of the future. Help make it happen. Create open stuff – software, graphics, designs, widgets. Just do it. Eventually the Mr. Troxlers of the world will die off.

    • I think “Casual_Observer” jumps to conclusion based on misunderstanding the terms “non-commercial” and “non-derivative”.
      S/he equals “non-commercial” with “non-proprietary” and commercial with proprietary. Big mistake, sorry. I suggest “Casual_Observer” reads up on “non-commercial” in the Creative Commons FAQ and checks again the pertinent GNU GPL FAQ on “selling copies for money” (ever since v.1).
      “Casual_Observer” might or might not want to change their opinion in which camp I belong. Maybe, some day fellow posters of the type of “Casual_Observer” will start to use their brain before typing …

    • ” Specifically, the GPL 1.0 excludes commercial uses without written permission, and I believe that restriction remains in force in both the GPL 2.0 and 3.0″

      Huh?? I really don’t know where you got that idea.

      The GPL has always allowed commercial use, it is one of the fundamental freedoms https://www.gnu.org/philosophy/free-sw.html and always has been AFAIK.

  4. Open Source Hardware is dead already.

    Sadly, this is too little, too late. The horse has bolted. There are now hundreds of projects and companies claiming to be Open Source, when in fact they are using an non-Open Source license such as CC BY-NC-SA.

    When challenged, they say things like “open source means different things to different people”. When you point them to this page, they say “that is just the opinion of the OSHWA”. Even people using the OSHWA logo, make claims like “a royalty must be paid for commercial use”.

    Without a firmly applied license and trade mark, the “open source” term has become essentially meaningless and will have to be abandoned in the hardware space. Companies operating in the proprietary arena are very good at the “embrace and extinguish” tactic. Unfortunately most of the users don’t really care or are actually inclined to agree with the non-Open Source interpretation of Open Source.

    The worrying thing is that if the dilution of term Open Source continues in the hardware space, it will have a detrimental impact on Open Source Software.

    The only way to recover this may be to create a new term, something like “True Open Source”, with a trademark and license scheme that can be strictly enforced.

    • ‘create a new term, something like “True Open Source”’ reminds me of the “free culture” badge Creative Commons introduces quite some time ago (2008, see http://creativecommons.org/weblog/entry/8051). It all starts with people not understanding that OS really is an “IP” strategy and as such a way to make money, if you wish to do so and if you’re able to do so — and the NC / royalties is just a cheap way of hoping on some kind of return (but you could as well buy a lottery ticket)

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