Re: Hardware licensing (fwd)

[Patrick Maupin <pmaupin@jump.net>]

> Obviously the OpenNDA would not stop you using copyright law, if/where
> you can get it to hold. If there were a major community established,
> and open hardware had some economic importance, we could probably
> lobby and get a law which would do exactly what we would like. Until
> that point is reached, it is largely a bluff and as long as people
> like RMS will assure everyone that redrawing a schematic gives you
> a new schematic which is not covered by the copyright of the original
> schematic, too many people will call your bluff. If you have and NDA
> with the exact same wording as eg IBM's NDA, if the court lets some
> slime bag get off with using open designs and not giving back their
> full design, IBM has to be interested in funding the appeal or they
> have to kiss goodbye to all their NDAs. This does not sound like
> a bluff any more. I think designers might try it and we may have
> that significant community before we hit any serious slime balls.

I guess one thing I haven't really read about in this proposal
is how you guarantee acceptance of your license terms.  Are
you proposing that all OpenNDA source code repositories be
protected with a click-through license agreement, or how do
you plan to try to enforce that a valid contract has occurred?
IBM gets real pen and ink signatures on their NDAs, but that's
a major hassle for any kind of hobbyist, distributed group.

One issue with NDA law which may have been mentioned here before
is that you really do have to show due diligence in protection
of your secrets.  Even an NDA from IBM, as discussed above,
will do IBM no good if someone can show that they legally
received the information without agreeing to the NDA, so it's
likely the circumstances of any OpenNDA breach are not anything
like the circumstances of an IBM NDA breach, and it's hard to
imagine IBM helping to defend you because you inadvertently
had issues (like letting a minor sign an NDA) that IBM just
doesn't forsee having for itself.

Another potential issue with the OpenNDA is that, since you
haven't really disclosed anything to the public, there is
not necessarily anything keeping someone else from (either
legitimately, or illegitimately, looking at your sources)
discovering the same innovations.  If a patentable invention
happens to be among those innovations, you may lose the ability
to use that particular innovation in your hardware design,
and you don't even have the defense that you have published
prior art, because it was only licensed to those agreeing
to the OpenNDA, not truly published.

> I initially thought of the Magic Circle who have passed magic tricks
> freely around amongst themselves for generations, without and major
> problems I know of. I don't see any reason to think that engineers
> have less moral fibre than entertainers. But I could be wrong.

As far as I know, most serious entertainers are basically
entrepreneurs, beholden to no one but themselves.  Many of
them suffer for years on low pay and with other problems,
so "making a good living" is not necessarily their motivating
factor, or else they might have chosen a different career
path.

Also, as far as I know, most engineers are corporate
creatures.  They have chosen (or feel like they have
no option -- same difference) the supposed security
of a regular paycheck in return for relinquishing a
lot of their power to make decisions.

Once this path has been chosen, mortgages, car payments,
children, wives, ex-husbands, and sundry other mundane
circumstances conspire to make it difficult to change
course.  Everybody has his own moral priorities, but
it is really difficult for me to criticize someone who
has to feed a family for letting the corporation which
pays him make a few minor moral decisions for him.
After all, taking care of the children ranks pretty
high on most moral scales, so if you have to take a
few shortcuts farther down the morality priority list,
it may not seem like such a big deal.  It's not like
the company is not asking you to fire up the gas
chambers or anything, they're just asking you to
help them maintain a competitive advantage by not
releasing some source code enhancements you wrote,
and that's got to be good for you, too, right?

So the particular community you have to worry about
is not the community of engineers, but the community
of corporations.  And many of those corporations will
actively fight you, with implicit or explicit threats
that their employees may be fired or even sued for
breaching _their_ corporate NDA and disclosing work
they did for the corporation.

>>there is no question that the value of copyright
>>protection is ndependent of any disclosure agreement
>>-- disclosure will not negatively affect the protection.  
>This sounds like more of an argument for belt and braces.

I could see that, but I am not yet convinced that either
the belt OR the suspenders will do me any good.  So for
things I author that I care deeply about trying to make
money on (see above argument about comparative moral values),
I'll just keep having to wear a trench coat so nobody notices
if my pants fall down.  (Hmm, maybe time for a new metaphor.)

Anyway, once I am convinced of the ability of _either_
the belt or the suspenders to hold my pants up, it
would be my personal inclination to try to get the
best one of whatever I thought would work that I
could buy, and to maybe not worry too much about the
other one.

Regards,
Pat