Asking for a Clear Test for Copyright and OSHW

One of the things that makes open source hardware licenses hard is that – unlike software – it isn’t always easy to determine what parts of a product (if any) are covered by copyright. Since traditional open source licenses rely on copyright to make them enforceable, understanding how copyright applies to a piece of open source hardware is the first step in deciding how you might want to license it.

Finding copyright can be complicated because it protects creative and decorative works (including code), but not functional items.  Pieces of open source hardware often combine both creative and functional elements.  This makes it critical to understand how to break out the copyright-protectable parts from the non-copyright-protectable ones.

Unfortunately, today in the United States there are at least ten different and somewhat contradictory tests to guide that process.  That makes it hard for copyright experts to draw the line between copyrightable and non-copyrightable, and essentially impossible for everyone else.

That’s why OSHWA joined the International Costumbers Guild, Shapeways, Formlabs, Printrbot, the Organization for Transformative Works, the American Library Association, The Association of Research Libraries, and the Association of College and Research Libraries on a brief written by Public Knowledge in the Supreme Court case Star Athletica v. Varsity Brands.  While the case is nominally about cheerleader uniforms (really), it boils down to a simple question: which test should be used to separate out the copyrightable and non-copyrightable elements of an object that includes both?

The brief does not advocate for a specific test. Instead, it simply urges the Supreme Court to pick a simple, easy to understand test. That clarity alone would be a huge benefit to the entire open source hardware community.

Although we are filing the brief now, the Court’s decision probably won’t be until next year.  Once it comes out, we’ll do our best to explain what it means for the entire open source hardware community.

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