hello!
as per the title, does open-source hardware / software has any legal responsibilities?
for example, if i design / create a device which is used by disabled people for locomotion, i publish the documentation, firmware, blueprints, etc as open source. then someone reproduces that device and an accident happens (because of hardware or firmware or any error), i could be liable in any form?
thanks!
I’m neither a lawyer, nor programmer, just a paralegal in previous life, but a couple of things I will say about this, Firstly, GNU_General_Public_License and other Open Source licenses address this with fairly typical legal disclaimers. This is why some say it’s fairly important to actually include such licenses, (and force people to click on them) in any product: software, hardware or firmware, instead of just releasing a product into the Public Domain. Please get as much familiarity as possible before using them. Read Them! Again, I’m no authority on GNU licenses, and I believe there’s not actually much testing of the legal validity of Open Source licenses in courts (case law is supremely important in Common Law “English” type systems, like in the US, Canada, Great Britain, etc. Your responsibilities in Civil Law systems, as in much of Europe, may be different.) Secondly, in the US, the point of going after designers is when they have deep pockets- when the manufacturers and sellers don’t. One of the reasons there hasn’t been a whole lot of case law on Open Source, is the designers are often penniless, or at least not as wealthy as manufacturers, etc… Not good targets for lawsuits, although that’s no protection, as someone with a grudge or agenda might not care about the money, and/or have more of interest in bankrupting or putting you out of business. I mention this only to remind you to keep things in perspective, since any professional opinion you solicit might be inspired by their own business interests, and give only the most alarmist hypothetical situations. If you have no money, you’ll be small, if not invisible, to lawyers in the vast majority of cases. And most people will not be interested in putting a designer of products for the physically disabled out of business, and a good lawyer will point out the small-mindedness of such attempts if s/he can.
The GNU people have put a lot of thought into such matters as legal responsibility: it’s one reason their on Version 3, instead of leaving the first version alone. Check out the language in it sometime, instead of clicking mindlessly, as we often do, me included.
thanks for the thoughts.
by the time, i also asked some folks who are in open source business, and they confirmed that there is absolutely no responibility for the author. all the responsibility is on the user!
and, of course, as you say, it is important to properly display and integrate the “license agreement” into the documentation.
i also find a “tool” on the creative commons website, which generates the appropriate text depending on the condition one choose:
https://creativecommons.org/choose/
in the generated text it clearly states:
"Section 5 – Disclaimer of Warranties and Limitation of Liability.
Unless otherwise separately undertaken by the Licensor, to the extent possible, the Licensor offers the Licensed Material as-is and as-available, and makes no representations or warranties of any kind concerning the Licensed Material, whether express, implied, statutory, or other. This includes, without limitation, warranties of title, merchantability, fitness for a particular purpose, non-infringement, absence of latent or other defects, accuracy, or the presence or absence of errors, whether or not known or discoverable. Where disclaimers of warranties are not allowed in full or in part, this disclaimer may not apply to You.
To the extent possible, in no event will the Licensor be liable to You on any legal theory (including, without limitation, negligence) or otherwise for any direct, special, indirect, incidental, consequential, punitive, exemplary, or other losses, costs, expenses, or damages arising out of this Public License or use of the Licensed Material, even if the Licensor has been advised of the possibility of such losses, costs, expenses, or damages. Where a limitation of liability is not allowed in full or in part, this limitation may not apply to You.
The disclaimer of warranties and limitation of liability provided above shall be interpreted in a manner that, to the extent possible, most closely approximates an absolute disclaimer and waiver of all liability."
In some word region, if you are a professional, and if you publish the documentation of your TMA (Thing Made with Atom) available for individuals, then you are responsible for individual usages, even if the licence you choose tells you are not. However, if you make your documentation available only for professionals, then professionals are said to know what they do, and you will not be responsible for usage done by professionals.
You may or may not be legally liable, but you might still face consequences
eg reputation damage.
This is an issue for organisations who create open hardware designs for use
in serious settings eg humanitarian relief, where an item may be needed for
life saving or life sustaining. A related question is how you can show that
your design is fit for purpose and that a physical instantiation of it will
work as intended. At Field Ready (fieldready.org) we thought about this a
lot in 2016-17, and I wrote a paper on it -
https://lbj.org.uk/opportunities-and-challenge.pdf (copyright IEEE, this is
a pre-publication version) and also spoke at OHS 2017
https://vimeo.com/246531073. I’d love to see more focus on these issues
of safety, quality and reliability in the open hardware community, and how
we can develop design, make and community practices which enable open
hardware to be a safe and reliable solution to significant needs all around
the world.
Laura
Hi
[warning long reply without clear answers :-]
So my background is in law and Ive been involved with legal projects quite a bit and interested to help make some practical sense out of the legal minefield we find ourselves in sometimes.
Your first answer was about liability right ?
And you also mentioned creative commons licenses which I think are great but may not be well suited for anything besides works that can be protected by copyright (movies,photo’s books,art,publications etc) These works when you ‘use’ them would not cause the harm you are thinking about when someone would make a product based on your blueprint and gets hurt because the design was faulty or perhaps not faulty but an accident happens.
For your question about liability it is important (and difficult) to understand that laws differs from country to country. So what are the rules to establish liability in the Netherlands are different from say the UK or Canada.
Which is great for lawyers cuz it keeps them busy but not so great for a community like ours who are trying to figure stuff out without messing up in the process 
Second problem is that a lot of it is written in legalise (read confusing or broad terms) open to interpretation and as a result you will hear us say ’ it depends’ a lot, but that’s the reality I’m afraid that it does depend on a specific situation and it’s not possible to tell beforehand what the outcome will be. You can get some advice on it and Christopher and Laura made some good remarks already.
I would say it is unlikely you can be held liable under any jurisdiction simply for providing blue prints for a device when you have attached a license with a clear disclaimer and someone unknown to you uses your design. (This reminds me a bit of the liability discussion for 3D printing guns) To avoid any liability I would make sure that you make this clear when publishing your designs that people are responsible themselves for any damages done by using the designs. The situation may be different if they actually contacted you and you knew your design had flaws and didnt tell them about it (duty of care).
Sorry I dont have time right now to do a full legal analysis but hope this helps a bit
best
F