This article explores the legal problems that will be faced by free-design communities developing hardware for space.

I have learned that distributed problems require distributed solutions—that centralization of power, the first resort of politicians who feed on crisis, is actually worse than useless, because centralizers regard the more effective coping strategies as threats and act to thwart them.—Eric Raymond

A strong free design economy will have to deal with the realities of the legal systems in which it must operate [1]. Intellectual property law is currently changing, inconsistent between nations, and under substantial pressure from those with a vested interest in preserving outmoded business models against the inevitable changes that new communications technology has brought. Furthermore, putting the ability to design and create in the hands of ordinary people creates a threat to the power elite, who will then have a harder time controlling forbidden technology and the forbidden knowledge required to create it.

The result has been the mining of the noosphere—a net of legal obstacles intended to ensnare free thought and keep the old power structures intact. There is more at stake here than is usual in the field of free software—free-designed nuclear weapons or biological weapons could destroy civilization just as easily as their proprietary, government-controlled cousins. We can’t shirk that responsibility. Nor, however, can we allow it to halt human progress by turning our free society into an unnavigable maze of professional guilds and corporate fiefdoms.

Putting the ability to design and create in the hands of ordinary people creates a threat to the power elite, who will then have a harder time controlling forbidden technology and the forbidden knowledge required to create it

Patents

The most prominent hazard for individual inventors today is the proliferation of patents.

How did we get into this ironic position? After all, the basis for patent law (at least in the United States), is supposed to be the encouragement of invention by allowing inventors a proprietary period to cash in on their inventions before they enter the public domain. Or, as Abraham Lincoln put it:

Next came the Patent laws. These began in England in 1624; and, in this country, with the adoption of our constitution. Before then, any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things [2].

Abraham Lincoln was the only US president to hold a patent (Number 6469)

The reality is further from the ideal, however. Filing for a patent is a difficult and expensive process that most inventors would be hard-pressed to do on their own; the volume of patents which must be searched to prove the absence of prior art is enormous; and the cost of expert help in this process is too high for the average individual. The result is that very few individual inventors use the patent system at all.

The most prominent hazard for individual inventors today is the proliferation of patents

Even for the ones who do file, the patent process is unlikely to be helpful. Having a patent on an idea does not commercialize it—you still have all the usual problems of an entrepreneurial startup. Furthermore, until a patent is granted, the inventor is likely to hold back on describing their invention, even to people who might be interested in helping them. In a world of free information interchange, it is often not the original spark of an idea that proves profitable, but the results of exchanging shared information in an open forum of interested parties. The possibility of proprietary gain retards this free exchange of information and thus creates an infertile intellectual landscape.

Intellectual landmines

The most serious thing about patents, though, is that they can harm you even if you don’t use them, know nothing about them, and never see or make use of anyone else’s ideas. Because, independent invention, though it might rightly be regarded as proof of “obviousness”, is no defense against a patent infringement claim: even if your design is completely original, you may have accidentally reinvented something to which someone else has exclusive claim.

Patents can and do blindside designers

What’s more, such claims can be truly devastating to your project, because the patent-holder can not only sue you for “damages”, but may also get a court order to stop you from using your own ideas (and any ideas that depend on them).

This makes patents even more of a landmine than accidental copyright infringement: at least with copyright, you cannot really infringe unless you have copied someone’s work—and you can be expected to know when you’ve done that. But patents can and do blindside designers.

Excerpt from “Bound by Law”, a comic expounding on the problems of copyright and the public domain. Patents are even more of a minefield than copyrights (Duke Center for the Study of the Public Domain, CC-By-NC-SA/Fair Use)

This has recently become a serious issue for software patents, but in truth, it is a problem with all patents: obvious designs, natural phenomena, and mathematical truths are now being granted as patents, due to a severely-flawed patents system in the United States, and through a series of treaty organizations [3], the same pathology is spreading to other nations as well.

Too much of a good thing?

These problems with granting proprietary rights to information are not new, by any means. Thomas Jefferson argued famously that there are no natural rights to intellectual property:

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening mine. […] That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature. Inventions then cannot, in nature, be a subject of property [4].

He went on to argue that such rights, being artificial, may be freely managed by nations (or not) according to what is perceived as the most effective way to spur innovation. This is pretty important, because Jefferson also wrote this famous bit of text:

The Congress shall have power […] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries [5]

This is, of course, the constitutional basis for all copyrights and patents under United States law.

Thomas Jefferson opposed the idea of intellectual property as a natural right