[Ground-station] NDAs upon hardware can cause ITAR/EAR issues

[Bruce Perens]

One reason that NDAs are used for hardware designs is because copyright
protection does not in general exist for them. US Copyright law excludes
functional things from copyright:

17 USC 102(b)
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.

It is generally interpreted that schematics and bills of materials are
entirely functional and thus not subject to copyright.

Since they don't have copyright, the remaining protections available to
hardware designers are patent and trade-secret. NDAs are used to control
trade secrets.

Thus, we will be given NDAs for hardware. When the NDAs apply to physical
dimensions, component pinouts and software interfaces of the components,
this makes an Open Source or Open Hardware implementation impossible.

When we can't make our work Open Source, we aren't protected from ITAR and
EAR. See our ITAR/EAR strategy at
https://openresearch.institute/itar-and-ear-strategy/. ITAR/EAR are
designed to protect the proprietary information about "munitions" from
disclosure to foreign nations.

Thus, it's important to classify what information about a part or subsystem
is under NDA, and what this prevents us from doing. Any aspect of our
design that is under NDA is not granted protection from ITAR and EAR, and
international collaboration regarding that information can get us in deep
legal trouble.

    Thanks

    Bruce



-- 
Bruce Perens K6BP - CEO, Legal Engineering
Standards committee chair, license review committee member, co-founder,
Open Source Initiative
President, Open Research Institute; Board Member, Fashion Freedom
Initiative.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.openresearch.institute/pipermail/ground-station-openresearch.institute/attachments/20180617/bd93a37c/attachment.html>