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Should patented, patent-pending, or copyrighted projects NOT be in MAKE? This is the question that has been raised around Mikal Hart‘s Reverse Geocache Puzzlebox project from MAKE Volume 25. It’s a clever project. Where geocaching is a game of high-tech hide and seek game, with players using GPS to find a hidden “cache” of trinkets, Hart’s Reverse Geocache Puzzlebox is a box that will only open in one place on Earth. Mikal made the first one as a wedding present for a friend (the guy who’d turned him onto Arduino). We thought it was a cool project and published it in the magazine. The controversy comes from the fact that Mikal copyrighted trademarked the name “Reverse Geocache” and his technology is patent pending. Some folks took exception to locked down technology being covered in MAKE (although Mikal does encourage and help people make the boxes for personal, non-commercial use). The following letter we received, from reader Bryan Hanks, expresses this negative reaction. A conversation broke out on our internal email list. Some of these comments are reproduced below and express various thoughts on the issue. Update: And after that, a letter from Mikal Hart.

What is your take on this? What do you think MAKE’s editorial position should be?

Bryan Hanks writes:

I’m writing to express my disappointment at the decision to include the “Reverse Geocache Puzzlebox” in a recent MAKE.

As a long-time subscriber (since Volume 6!), I’ve always enjoyed the high-quality articles and projects I’ve found within MAKE’s pages. Doing the work you all do is truly commendable. Working in the print media industry myself, I understand the pressures to get the latest issue out the door on time while retaining a high level of quality.

That being said, I would hope that you would consider some basic guidelines for projects featured in MAKE’s pages, namely refusing to publish PATENTED, COPYRIGHTED projects, such as the “Reverse Geocache
Puzzlebox.” How are we supposed to build on this? How are we supposed to expand on it? Locking down ideas is antithetical to the maker spirit.

All the best to the author, Mr. Hart, and a notice: I’ve coined the term “Inverse Geocache” and will clean-room build a better mousetrap.

To whit:

“Inverse Geocache” by Bryan Hanks is licensed under a Creative Commons
Attribution-ShareAlike 3.0 Unported License.

I would also like to purchase a special gift for whichever editor approved this article (I’m serious!). Please send me his/her name and mailing address. Here is what I’m going to send, as a reminder:

Thank you, and happy making.

Mark Frauenfelder responds:

He raises an interesting point. I’ve been getting more and more questions from makers who want to patent some of their creations for commercial reasons. In one way, this shows that makers are getting more serious and powerful. On the other, it does suck that others can’t improve on this project.

But the idea of reverse geocache itself can’t be patented, it’s just the software used here that’s protected, so people *can* improve on the idea in general.

Phillip Torrone chimes in:

At first glance, it doesn’t matter. Anyone can inspect and improve upon a patented or copyrighted project or product for their own personal use. You just can’t sell it or call it “reverse geocache,” and you need to credit the maker.

This is from the maker’s site:

Reverse Geocache™ is a trademark of Mikal Hart.
These instructions and the sample source code and licensed under the terms of the Creative Commons “Attribution Non-Commercial Share Alike” license, version 3.0, which grants the limited right to use or modify it NON-COMMERCIALLY, so long as appropriate credit is given and derivative works are licensed under the identical terms. See here for license details. The Reverse Geocache Puzzle and some of the technologies described here are patent pending.

So, you cannot sell your own version called “reverse geocache,” and who knows what patents are pending, but this shouldn’t stop anyone from building their own and sharing improvements.

The maker (Mikal) is using the open source, commercial-use allowed, Arduino. It’s unclear what (and if) he’s actually patenting, but if someone is really worried about patents, there’s always this:

For “amusement, to satisfy idle curiosity, or for strictly philosophical inquiry.”

Has there been a single case of someone getting sued because they improved upon a copyrighted or trademarked project in MAKE? The answer: “No.”

Paul Spinrad adds:

Mikal really isn’t being too protective here. Making one for your own use is totally OK, and modifying the plain-vanilla version of his software, which he’s distributing open source, is also OK. He wants people to make these boxes for themselves and their loved ones, and wants to help them, but what he doesn’t want is for people to make them to sell for profit — basically just like a noncommercial share with credit CC license. I actually think he struck a great balance!

The other thing he wants is to trademark the phrase “Reverse Geocache.” I’m less sympathetic to this, but also think it’s a pretty trivial issue. Yes, if some manufacturer wants to license his patent, they’ll need a protected name for the product, so I guess he’s planning ahead. But it’s just a name, and I don’t think it’s catchier than “Inverse Geocache,” or whatever else.

After this piece was posted, we got a response from the creator of the Reverse Geocache puzzle, Mikal Hart:

I really enjoyed writing the Reverse Geocache article and appreciate the support from the MAKE staff and readers on this interesting question. As someone who has spent hundreds of hours helping people all over the world build and debug wonderful puzzle box projects, I admit being a little disappointed at the suggestion that my work is somehow “contrary to the maker spirit”.

MAKE is about celebrating and sharing inventive magic. It’s been marching proudly under this banner for years without any apparent bias against inventors who aspire to retain certain rights. And I’m glad for that. When I dive into each new issue, I want to swim in the entire creative ocean, as it were, and not just paddle around in “special” areas someone has roped off for me.

Does the “If you can’t open it, you don’t own it!” motto even apply here? I invite uncertain readers to follow my instructions and build their own puzzle boxes. It’s a unique and intensely personal experience. After
they’ve soldered that last resistor and tweaked those last few lines of code, most people feel an unusually close attachment to this project. And when that special someone finally opens the box and discovers that treasure you’ve hidden for her, well, I assure you, you’ll feel you own it unlike anything you’ve owned before.

Mikal Hart

So, tell us what YOU think.

Gareth Branwyn

Gareth Branwyn is a freelancer writer and the former Editorial Director of Maker Media. He is the author or editor of a dozen books on technology, DIY, and geek culture, including the first book about the web (Mosaic Quick Tour) and the Absolute Beginner’s Guide to Building Robots. He is currently working on a best-of collection of his writing, called Borg Like Me.


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Comments

  1. Not really interested in reading about copyrighted/patented/trademarked things here. If I wanted that, I could go plenty of other places, like Popular Science. ‘Make’ is attractive to me precisely because it is *not* about any of those things for the people who contribute without asking anything more than a few moments of my attention.

    There’s nothing wrong with copyrights/…, it’s just that I don’t care about them when I’m here.

    1. Anonymous says:

      We only periodically discuss the issues surrounding the process of being a maker, business aspects, and such. But we DO discuss it. And in this case, as Mark F says in his comments in the post, we’re getting asked more frequently about whether makers should patent their creations. And we got complaints about publishing this piece, so we thought we’d ask our readers what they thought. But don’t fret, you won’t see much about copyrighted/patented/trademarked here on MAKE.

      1. migpics says:

        Gareth, I think Make should have a whole section about trademark, patents and copyright. Why? Because Make has a way of explaining things that make it easier for people getting into making can understand! I mean, you have a great example of someone like Collin who breaks down the basics of a transistor with Eat Big Cookie rather than losing someone in an elaborate explanation about “doped semiconductors” and “bidirectional diffusion of charge carriers” (from Wikipedia).

        Makers should have an idea of what these things involve, pros and cons, intellectual property, developing things at a university etc. Like what are the consequences of patenting an idea. Once you patent an idea does one still have to pay big bucks to enforce it, etc. Maybe have a discussion from both sides of the aisle.

        Make makes this experience less daunting and then someone can wake up and say, ‘Hey, I can file a provisional patent myself and don’t need to get an attorney to do it!’ or maybe I don’t need one and want to share it with the world.

  2. There are really two ways to look at this: 1) the author is trying to patent/copyright/license so that he can make money; 2) the author is trying to protect his idea from being exploited by some company. Since the license is Creative Commons, I believe the author is just trying to prevent his idea from being exploited. Not licensing would leave the project open for anyone to do anything they wanted, including make money from it and taking credit for it. Creative Commons allows anyone to copy and improve upon the idea, as long as they pass the same license to anyone wanting to use their work.

    As a software developer, I deal with these kinds of licenses every day and I am all for protecting an idea from exploitation while allowing others to benefit and build upon the idea. Many open source software licenses are being “ported” to the hardware/device arena and I think that is a good thing.

    1. AFAIK, Not licensing would render it copyright to the author (Mikal), or at least that’s how I recall.

    2. VRAndy says:

      In this context, what’s the difference between “using” and “exploiting”?

      If I make a device with my own hands it seems reasonable to sell it to someone else. Is that use or exploitation?
      What if I make and sell fifty of them? Fifty-Thousand?

      Would anybody be harmed if Wal-Mart started selling store-brand Reverse-Geocache boxes? Would anybody be harmed?
      If so, how? If not, how can preventing them from doing so be called “protection”?

  3. I guess I could see it as protecting against corporations thieving people’s hard work.

    But in that line of thought, what does it take to prove “prior art”, or for that matter, general terminology vs copyrightable names? Would having a blog post about telling how to make something, showing a final product, and using the term “reverse geocache” in that same post block a corporation from then selling the same product and setting it up under their own license?

    There are multiple issues here:
    prior art vs patentable
    general terminology vs copyrightable language

    And I guess telling how to make something is sort of a 3rd issue. I see that as being a separate product to the product that you are making, will similar sorts of issues.

    Ian

  4. johngineer says:

    The term “Reverse Geocache” is misleading, not to mention uninspired.

    I’d call it “locative access” — everybody feel free to use that, by the way.

    As far as MAKE’s editorial policy, it’s a tough call. There are some killer projects out there which either contain or are themselves patented technology. Nothing wrong with featuring those, but if that patent is so ingrained in the project and so restrictive that a prospective maker has to jump through hoops to build it, then I say keep it out. That’s the pragmatic maker in me speaking.

    The emotional maker in me says forget ‘em entirely. One thing I’ve learned from observing this scene is that there are always plenty of rad projects out there, and plenty of people willing to completely open up what they do without any restriction other than attribution. Feature them first and foremost.

  5. Anonymous says:

    The IP laws in this country are counterproductive to the advancement of technology and prosperity. If I make a patent on a technology or copyright an intellectual property, I have made an injunction over what another person can and cannot do with their labor and property, diminishing the rights of all in society. If I bought the device and agreed to not copy it, yet I do, I have violated my agreement with the producer and harmed the producer. If I made an exact duplicate with no agreement on purchase and sold it, how have I diminished society? If I make a similar device and improve it, under IP law my rights to my own efforts and resources are still diminished partially by this patent to the detriment of society. I hope Make sees the philosophical inconsistency of endorsing and promoting a patent-protected product. It also hurts the credibility of the magazine; in the future what will be the difference between Make Magazine and Engadget?

  6. Given the number of things over the years that have appeared in Make publications (print and online) that involved working with, over, around and through technologies that are patented or copyrighted using the traditional legal model (all of the various Kinect hacks for example), someone using the CC in their product designs seem more open. The legal matters aside, use of other people’s ideas and products in way that weren’t intended (and aren’t necessarily approved by the original equipment makers) has been part of the Make approach for a long time (I hesitate to say from the beginning). Suggestions that OEMs (particularly the very large ones) open up their development approach and embrace enthusiast communities (the Maker Manifesto approach) have also been very plain in Make. And I’ve enjoyed reading about it. Not talking about something just because its patented seems really short-sighted, barring outright advertorials. I say go for it.

  7. Whose idea was it to highlight this dude’s “copyrighted” stuff? Was it his, or MAKE’s? If it was MAKE’s, why are we discussing it: tell the guy you’re sorry and drop it – Chances are you (and us readers/enthusiasts) would rather spend our time discussing ideas/concepts worthy of note rather than losing focus on tripe like this. However, if it was Mikal Hart who brought his idea to the attention of MAKE, then he should be invited to seek exposure and publicity elsewhere.

    Furthermore, there’s a huge difference between ‘copyright’ and ‘trademark’. The dude took the time to (pay for and) trademark his dumb term “Reverse Geocache” (which isn’t the same as protecting his invention, it only protects the term/mark) so let him have it. Then he should stop whining. He’s lost his DIY/Maker-Community privileges, and should get lost at his earliest convenience.

    And the rest of us should REGAIN FOCUS on the innovative and cool, the DIY and creative.

  8. sometimes you have to patent and copyright to keep it out of the hands of the greedy. They aren’t Makers, just takers.

  9. In crafting an editorial policy, I don’t think you should consider whether the projects are purportedly covered by intellectual property protections or not.

    On one hand, intellectual property protections are vital to make sure that projects intended by the creators to be open *remain* open (e.g., you can’t enforce Creative Commons licenses without having copyright protections to back them up, etc.). But, I’m a patent attorney, so I’m probably biased.

    I think the most important point is this: as an editor, you simply don’t know for sure whether the projects are protected. In the US, at least, patents may be filed without being published until they are granted, which could be much longer than your publishing cycle. Copyright attaches once the work is fixed in a medium of expression whether it is registered with the Copyright Office or not. Common law rights to trademarks may be asserted without a Federal trademark registration.

    Do you really want to tell your readers that anything you post is free for their use, if you don’t/can’t know for sure that is the case?

  10. Everybody is going bananas over the Kinect hacks, and that’s as encumbered as it gets. I don’t see the big deal here.

  11. Anonymous says:

    I see no problem with the name “Reverse Geocache” being trademarked, especially if he intends to market it commercially.

    I also see no problem with the source code being Copyrighted, since it’s already under Copyright as a matter of law: He may as well acknowledge that. I also don’t see an issue with the source code and design being released under a non-commercial license, since it’s still available for others to tinker with.

    I do see a problem with the device being patented. There is no practical, legal, or economic benefit to patenting anything (see “Against Intellectual Monopoly” by Boldrin and Levine for an expansive discussion why), except to maintain an impractical monopoly on the market for such devices, and waste money, time and resources litigating to protect it.

    My advice to Bryan Hanks is to put his patent in the OIN patent pool and pretend it doesn’t exist. It certainly won’t do him any good – it won’t ensure his monopoly, and it will only be a drain on money.

    As far as Make is concerned, I don’t see the problem with publishing an article on the device, since there are no barriers to Makers in building one. Marketing one will obviously be a problem, but given the relative simplicity of the device, it may just be more economically sound to sell kits anyway.

    1. Anonymous says:

      Mikal Hart is the creator of the device, not Bryan Hanks. He’s the person who wrote the above letter to MAKE.

      1. Anonymous says:

        My mistake.

  12. Anonymous says:

    Simple: If it can’t be made, it shouldn’t be in Make.

    1. Anonymous says:

      What does that mean? This project can be made — it was a project in MAKE. You can make it, you’re just not supposed to make them for sale.

  13. Kaithar says:

    Urg, isn’t there enough of this nonsense in the Open Source community without it being brought up in the Open Hardware community as well?

    Just because we like making stuff doesn’t mean we are forfeiting our right to make a living off it as well.
    If, as this article says, the design is licensed under CC then you’re welcome to play with it and make them, you just can’t override the designer’s right to make money off it.

    There’s enough discussion about Arduino on Make, and that is exactly the same isn’t it?

  14. clide says:

    My comment seems to have disappeared :(

    Quick version: Just because something is patented doesn’t mean the idea and design can’t be contributed to the community. Although it can be used in bad ways, intellectual property is not all bad.

  15. srmoore says:

    I think that the issue of if it is patent pending, copyrighted etc. isn’t the point of Make in general. If the article talks about the build process, if the builder is in the maker spirit, etc., then it should be here. I want to read about how someone built something. I want to know about their process. Heck, if it is an original idea, I wouldn’t mind hearing about how to go about protecting that idea. I don’t want to know about the marketing, nor do I want articles that just show off something with none of the development story/process. Mikal is a maker, his Reverse Geocache Box was made by him, the article talked about what it is.Others have already pointed out you are free to use information from patented ideas as long as you are not making money off it. That is the point of a patent. Not to prevent anyone from making one ever, just to prevent someone from making one, and then selling it without the originator of the idea being in the loop money or otherwise.

    1. “Others have already pointed out you are free to use information from patented ideas as long as you are not making money off it.”

      Just to be clear, in the United States, that is not true at all. A patent gives the owner the exclusive right to make, use, offer for sale, or sell the patented invention. It is completely irrelevant to infringement whether an accused infringer is making the patented invention and giving it away for free, or even using it themselves without distributing it.

  16. Steve Hoefer says:

    I get where the writer is coming from. But the more that I’ve learned about copyright, trademark, and patent law the less that the writer’s concern get a rise out of me. In fact I’m pretty much 100% on board with the Make staff on this.

    In many ways there is little difference between a patent and a Make project. Both exist to document the project so that others can make it.

    Trademarking is one of the few ways that open source folks have of trying to make a little money off all their hard work without stepping on anyone’s toes. After you’ve given away the source, the specs and the instructions all you have left is a name. If Make stopped publishing Trademarked projects then there would be no more Arduino projects because the term Arduino is trademarked. That doesn’t mean you can’t go out and make your own. (You can even make your own and sell them, you just can’t call them Arduinos.)

    Having a knee jerk reaction simply to legal protection isn’t helpful to anyone.

    It would be nice to see some columns in future issues of Make that cover intellectual property laws though since many people are getting cranky about these issues and there is not a lot of information out there for a Maker audience.

  17. Dennis T.Dog says:

    Mikal’s code is copyrighted – no big deal. ALL code is under copyright, and he’s chosen to add a Creative Commons license. So far, so open.

    Mikal trademarked “Reverse Geocache” – no big deal. As others have pointed out, Arduino is a trademark, and I don’t imagine anyone wants to see MAKE stop covering projects involving Arduinos, or any other project involving a tool or product involving a trademark. Again, there is no obstacle to any Maker building one of these boxes themselves.

    Mikal wants to patent some of the technology involved – no big deal. Frankly I’m a little mystified as to what he plans to patent, and why, but the whole point of a patent is to release the information within it to the public. Sure, you can’t start mass-producing and selling Reverse Geocaches (sorry, Inverse Geocaches), but if the inability to profit by simply manufacturing someone else’s idea is a problem for any MAKE readers, I’d wonder whether that reader is truly a Maker, or whether they’re just an unscrupulous would-be businessperson. Once again, no obstacle to any Maker building one themselves.

    So… Given that the copyright, trademark and pending patent(s) on this project are of very minor academic interest, and which actively serve the Maker community by acting as a deterrent to those who would mass-produce the boxes for profit rather than appreciate the joy of hand-building one for a friend or loved one, where exactly is the problem? I’m mystified as to how this is even a discussion.

    1. Anonymous says:

      See all of the different points of view being expressed here? THAT’s why it’s a discussion.

      1. Dennis T.Dog says:

        I see that there are different points of view – there are different points of view about pretty much any subject, and intellectual property is something that tends to generate quite heated debate. What I guess I’m failing to see is how Mikal’s use of intellectual property could have created a controversy in this case. I don’t see anything here that would cause makers to think that his project was somehow unsuitable for being included in MAKE magazine.

        It does seem reasonable to exclude any projects which are protected in such a way that makers can’t legally go and build their own version, or would be unnecessarily restricted if they were to attempt to do so (I don’t imagine seeing a feature on modding Sony products any time soon)… But that just isn’t the case here.

    2. VRAndy says:

      What makes a business person who wishes to make a living by making necessarily “unscupulous”?

      Is a “Maker” someone who only makes for himself and never for others? Does he cease to be a maker if he opens a shop? Or an account on Etsy?

  18. Even if it’s patented, he should be able to grant a blanket free license for non-commercial use of the technology, right?

    In fact, it looks like Creative Commons has worked out a Public Patent License as well:

    http://wiki.creativecommons.org/CC_Public_Patent_License

  19. Ninety Nein says:

    How does one go about filing patents and copyrights to ensure that an idea is open to everyone forever? And what are the difference between copyleft and some of the more unrestrictive creative commons licenses?

  20. Just about the best article on the absurdity of patents and the process in general has been penned by Steve Ciarcia here: http://www.circuitcellar.com/archives/priorityinterrupt/247.html

    Basically, the patent gives you the right (and responsibility) to sue all who make something ‘infringing’, or you lose the patent. I like his idea: if you can, do.

  21. Anonymous says:

    You would do well to check over on the GeoCaching site, as they’ve already got much of this sewn up. If I recall correctly, he was not in any case the first in this field, so his claims may be worthless – like I say, go check.

  22. nizger says:

    The term reverse geocache has been in use for years in the geocaching community. Although officially called: “Locationless(reverse) cache” see: http://www.geocaching.com/about/cache_types.aspx

    How can you trademark that?

  23. It seems to me that most of the MAKE readership isn’t fishing around the magazines’ pages for entrepreneurial ideas, they are making things for the love of it. That being the case, publishing projects which are reproducible for non commercial uses but have commercial restrictions seems perfectly reasonable. It would be good policy to make such restrictions very clear in print with the project.

  24. Tien says:

    The point that seems to be missing is that patents do not forbid anyone from MAKING a patented item; patents forbid one from SELLING a patented item. So long as the item is for personal use, and does not cause the inventor economic harm, anyone is free to build the item.

    Consider that the patent filing itself is published and made publicly available, so there is no reason why MAKE should not publish articles on such items.

    1. Not to belabor the issue, but in the United States, a patent grants the exclusive right to the patent holder to (1) make, (2) use, (3) offer for sale, or (4) sell the patented invention. So yes, if an item is patented in the United States, only the patent holder may make the item, even if for personal or experimental use, without being liable for patent infringement.

      See 35 U.S.C. 271 (http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_271.htm)

      1. Greg Hora says:

        Sure, a person making a copy of some patented item for personal use is liable for patent infringement.  But what is the likelihood of the patent holder suing?  The only damages they could really sue for would be the loss of that ONE sale, right?  

  25. JAmes says:

    Do you have a copyright on the word MAKE?

  26. Angus Hines says:

    I really don’t have an issue with this, because, Im positive that MAKE will always act in good faith in regard to this issue. And on behalf of the maker/project that may be in question !

  27. Alex Needham says:

    I would like to see make still post post IP material. Just because I choose not to make something because of the risk of being sued is very high, doesn’t mean I can’t be inspired by it to make something else.

  28. VRAndy says:

    It feels like having a magazine article showing the world how to make your thing and then also trying to keep control over who can build your thing for what purpose is some sort of double-dipping.

    More power to you for doing one or the other, but not both.

  29. Bryan / says:

    I’m the guy who wrote the letter, and I really appreciate reading all of the responses, especially those I disagree with. Reading my original letter, I sound like a sanctimonious, unctuous jerk, so any venom sent my way is understandably justifiable.

    When I read projects in Make, I often think, “How can I expand upon this?” For Mikal Hart‘s box, I had quite a few cool ideas, like replacing the distance display with a compass, adding a countdown timer instead of a “number of guesses” counter, adding multiple waypoints, ecetera.

    I understand from (US) copyright issues that the copyright holder owns the rights to any *derivative* products. I’m not clear on how a Patent works in that case, and I have neither to time nor the money (to get a lawyer to answer my questions) to be bothered.

    Would I want to make my Inverse Reverse Upside-down Geocache, building on Hart’s original idea? Maybe. What if I did and it was so cool that people were willing to pay me for it? Right out of the gate it appears that I’d have problems (look at SCO and Linux and all those other Patent Wars — I’m just a little guy with no cash).

    Whether Hart believes that his idea is so super cool that Acme, Inc is going to steal it and knock off a gagillion cheap versions is besides the point. The point is that I cannot build upon his work (the way he build upon the patent-free Arduino) and maybe get paid for my efforts the way he wants to.

    Anyway, while I agree that this stuff is boring when I especially want to get out there an hack together another cool Arduino robot control shield, it is important in that I’ll have to think twice about expanding on the projects I read in Make, ’cause maybe I can’t as David Sheldon pointed out.

  30. Greg Hora says:

    Wasn’t there a bit of controversy a while back when Klutz started making the tooth brush vibra bots and there was an uproar over the original makers not receiving credit?  I know receiving credit and trying to maintain “control” through copyright/patent is different, but at the core isn’t it the same?  A copyright/patent is there for the original creator to receive credit and any type of “rewards” they’re entitled to.  

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