Re: Hardware licensing

[Patrick Maupin <pmaupin@jump.net>]

Richard Stallman wrote:
> 
>     a) the GPL as written doesn't provide any protection against
>         people distributing hardware without distributing the underlying
>         source code. (I think it's safe to say that Mr. Stallman also agrees
>         with this position, since he may have been the first to articulate it.)
>     b) it might be possible to provide this protection anyway,
> 
> I don't think that is true.
> 
> To the extent that copyright applies to the making of the physical
> devices, the GPL as written probably covers it.  To the extent that
> copyright does not apply, *probably* no copyright-based license can
> cover it.  I doubt that another license could succeed in covering
> actions that the GPL does not cover.  But it could not hurt to ask a
> lawyer.

See discussion below.

>
>     This sequence of events does not work for a hardware license,
>     because once the hardware is distributed, the cat is out of the
>     bag.  Instead, the licensee must be prohibited from making any
>     "transformations" to the code (modifications, compilations, etc.)
>     unless they agree with the license.
> 
> I cannot follow the logic here.  When you say the cat is out of the
> bag, could you be more specific?  What has happened to whom?  And how
> do you get to this conclusion about "transformations"?

This may be all muddle-headed (and to indicate as much I have
capitalized the letters of verbs which relate to great uncertainty),
but based on my understanding of what you and others have told me:

- It MAY be that it is impossible to directly use copyright to
  prevent someone from implementing a physical circuit based on
  a logic description I wrote in Verilog.  (This, to me, almost gets
  metaphysical, in that, as I have read elsewhere, I can copyright
  a drawing of a coffee cup, but I cannot use that copyright
  against someone who looks at my drawing and creates a coffee cup.
  In this instance, the physical coffee cup is not considered a
  derivative work, but perhaps if my files were used to directly
  generate a coffee cup using numerically controlled machine tools,
  copyright could extend to the stylistic elements of the cup.)
- It MAY be that it is possible to directly use copyright to prevent
  someone from performing what I was calling a "transformation," e.g.
  the compilation of Verilog into an EDIF netlist by a synthesis tool
  may be considered to be creating a derivative work, and copyright
  law allows me to restrict the ability of others to create
  derivative works based on my original works.

It MAY follow from the preceding statements that I can indirectly
use copyright to prevent someone from creating a physical circuit
which directly relies on my Verilog code.  Because the GPL, and
any similar hardware license, gets it's "teeth" from the underlying
copyright law, we will start the analysis with the simple case of
"pure" copyright law, e.g. I have a copyright with all rights
reserved, and I have not granted any sort of usage license:

Even though it might not be a direct copyright violation for
someone to stamp out integrated circuits based on Verilog code
which I have written, if I can show the following, it MAY be
possible to still collect (considerable) damages under the
copyright law:
(1) The infringer was aware of the copyright.
(2) The infringer made a derivative work, e.g.
    the intermediate design files.
(3) The economic value of the stamped-out ICs is
    directly derived from the intermediate derivative
    work, and thus from the original copyrighted work.
(3) The infringer had no rights to make those
    intermediate design files.

In this case, it MAY be that we can use copyright law to
relieve the infringer of all the economic gains which he
derived from the intermediate copy, which coincidentally
include all the economic gains from stamping out integrated
circuits using the intermediate copy, as well as recover
statutory damages.

If the last scenario doesn't hold up to legal scrutiny,
then we are dead in the water.  But even if the last
scenario legally works, I think we might (moreso than
the GPL) need a damages clause in the license, because
there might be some holes in the license, e.g. where 
someone could legally agree to the license, then
"change their mind" after they had built a bunch of
ICs.  "Okay, I won't do any more copying or anything,
but you can't do anything bad to me for what I've done
up to now."

Since the license is built on copyright law, the damages
clause could simply reinforce this, e.g. something like
this:

"If you have made a derivative work pursuant to the terms
of this license, and subsequently failed to fulfill your
obligations under the terms of this license, you agree
that your liability for damages to the author is the same
as your liability would have been under copyright law
if the derivative work had been made without agreeing to
this license."

Another issue which has been cropping up in copyright
lately is ownership -- e.g. someone who "owns" a copy
of a copyrighted work can do more with it than someone
who doesn't "own" that copy.  This includes, in the case
of software, making non-distributed derivative works for
certain purposes.  I don't think this portion of the
copyright law would be applied to hardware designs, but
just in case, we might want to have the license make it
clear that the recipient doesn't own any copy.  (If the
recipient actually owns a copy, he could conceivably be
allowed to use that copy to make a chip without conforming
to any license.)  If this concern is justified, we could
enhance GPL clause 1 to include something like this:

"These files are licensed, not sold.  You have not
purchased a copy of these files, therefore you do
not have any ownership in any copy of these files,
and cannot sell copies of these files.  (Although
you can redistribute these files under the terms
of this license, you and anybody you distribute
to are licensed users of these files, and do not
actually own copies of them.)

If you have sold a package (either physically such
as a CD, or intagibly such as through a subscription
download service) which incorporates these files,
and your buyer legitimately believed that he was
purchasing a copy of these files, you agree to refund
the price paid for the entire package, including
shipping and taxes, if the customer returns any
physical components of the package and destroys all
copies of the package in his possession.  If you
bought such a package legitimately thinking you
were buying a copy of these files, you may return
it to the seller for a full refund, after destroying
all copies you have made.  This only applies to those
copies derived from the seller of the package.
If you subsequently receive another copy of this
package (e.g. downloaded from a free online repository)
you still do not own this copy, but you are free to use
it in compliance with the terms of this license."

That's all my thoughts for now.  I realize that this
is an attempt to bend copyright law to cover an area
that it might not really cover, so even if this is
legally possible to do, I think the license might
need to be very carefully worded.  Can you recommend
a particular attorney with the kind of experience
we need for this task?

Thanks,
Pat Maupin