Ethical-source licenses, such as the Hippocratic License, have not been widely adopted. True, the Contributor Covenant, the first and most popular open-source project code of conduct has had success — it was adopted by the Linux kernel developers, but actual code ethical-source licenses have had a hard row to hoe. Today, seeking more users, there’s a new nonprofit group, the Organization for Ethical Source (OES).
Founded by the ethical-source leader and creator of the Hippocratic License and Contributor Covenant Coraline Ada Ehmke, the OES is devoted to the idea that the free software and open-source concept of “Freedom Zero” are outdated. Freedom Zero is “the freedom to run the program as you wish, for any purpose.” It’s fundamental to how open-source software is made and used.
It’s that last part that vexes Ehmke and supporters. That’s because they hate the notion that open-source software can be used for any purpose including “evil” purposes. The group states:
The world has changed since the Open Source Definition was created—open source has become ubiquitous, and is now being leveraged by bad actors for mass surveillance, racist policing, and other human rights abuses all over the world. The OES believes that the open-source community must evolve to address the magnitude and complexity of today’s social, political, and technological challenges.
How does this actually work in a license? The Hippocratic License 2.1 started with the MIT open-source license but has added several clauses to it. These define human rights as those described in the United Nations Universal Declaration of Human Rights and the United Nations Global Compact. Based on this, the license states:
The Software shall not be used by any person or entity for any systems, activities, or other uses that violate any Human Rights Laws. “Human Rights Laws” means any applicable laws, regulations, or rules (collectively, “Laws”) that protect human, civil, labor, privacy, political, environmental, security, economic, due process, or similar rights; provided, however, that such Laws are consistent and not in conflict with Human Rights Principles (a dispute over the consistency or a conflict between Laws and Human Rights Principles shall be determined by arbitration as stated above). Where the Human Rights Laws of more than one jurisdiction are applicable or in conflict with respect to the use of the Software, the Human Rights Laws that are most protective of the individuals or groups harmed shall apply.
This latest version of the license was developed in collaboration with a pro-bono legal team from Corporate Accountability Lab (CAL). It has been adopted by many open-source projects including the Ruby library VCR; mobile app development tool Gryphon; Javascript mapping library react-leaflet; and WeTransfer’s entire open-source portfolio.
CAL is supporting OES, Charity Ryerson, CAL’s executive director explained, because “Systemic change in the tech industry is long overdue, and the Organization for Ethical Source is a much-needed catalyst, We are excited to support this initiative, and hope to see tangible improvements for cobalt miners, Foxconn workers, immigrant detainees and others who have been harmed by Big Tech.”
The ethical considerations laid out in the license has already been observed in the intersection of business and government. In September 2019, open-source developer Seth Vargo and supporters using ethical-source concepts forced the DevOps company Chef Software to cancel its contract with the US Immigrations and Customs Enforcement (ICE).
Ethics are also appearing in other programs. In late 2020, numerous big tech companies, including Google, IBM, and Microsoft, all announced they would build ethics into their artificial intelligence (AI) software. For instance, all will endeavor to avoid creating or reinforcing bias within and with their programs.
The organization adds, though, the license’s most significant impact may be the debate it sparked between ethical-minded developers and open-source traditionalists around the primacy of Freedom Zero. In a statement, Ehmke wrote:
For too long we’ve been comforting ourselves with the myth that technology is inherently neutral. But there is nothing neutral about police using facial recognition algorithms to target legitimate protestors, or algorithms that perpetuate bias and sexism and racism, or any other of the dozens of kinds of human rights abuses we see today,
As technologists, we have to accept that our work has an outsized impact on society, and that means we have an outsized responsibility to minimize the harm it can cause. The Organization for Ethical Source was founded to help technologists accept these responsibilities, and learn how to center justice and equity in the work they do. We are united in our conviction that software freedom must not come before human freedom.”
Looking ahead, the OES, using a founding grant from the Omidyar Network, an organization for positive social change in the world, is developing new programs. These build on its initial work with the Hippocratic License. Specifically, it’s attempting to extend the reach of that effort while developing new tools and projects focusing on ethical governance, digital supply chain compliance, and other strategies.
These are far from the first efforts to bring ethics into software development or use. There’s nothing new about such efforts. For example, 2009’s Exception General Public License (eGPL) based on the GPLv2, tried to forbid “exceptions,” such as military users and suppliers from using its code. It failed. Other licenses such as the JSON license with its sweetly naive “the Software shall be used for Good, not Evil” clause is still around, but no one enforces.
In the past, Ehmke and others sought to influence open-source groups from the inside. In early 2020, Ehmke tried and failed to win a seat on the board of the leading open-source licensing group, the Open Source Initiative (OSI).
In return, most open-source leaders and lawyers don’t see a place for ethical-source in the free software and open-source licensing world.
When I spoke with open-source legal expert and Columbia law professor Eben Moglen in 2019, ethical source can’t work with the Free Software Foundation’s (FSF) definition of free software because it’s directly contrary to:
Freedom zero, the right to run the program for any purpose, comes first in the four freedoms because if users do not have that right with respect to computer programs they run, they ultimately do not have any rights in those programs at all. Efforts to give permission only for good uses, or to prohibit bad ones in the eyes of the licensor, violate the requirement to protect freedom zero. Thus they cannot be free software licenses, and cannot be “open source” licenses unless that category now includes licenses that don’t protect all the fundamental software freedoms.
Andrew ‘Andy’ Updegrove, a founding partner of Gesmer Updegrove, a top technology law firm and open-source legal expert, added: “Broadly speaking, a licensor can include whatever terms she wants in her license.” But “a restriction of this kind could not be included in a document which claimed to be compliant with the OSI Open Source Definition.”
Other open-source savvy lawyers I spoke with agreed with these conclusions. Another remarked that “people have been trying to can’t legislate morality for ages, but it never works.” Another added: “To me, ethical licensing is a case of someone with a very small hammer seeing every problem as a nail, and not even acknowledging that the nail is far too big for the hammer.”
That’s not to say there can’t be ethical-source licenses. Of course, they can exist. But the legal consensus of the experts I spoke with such licenses can’t actually be free software or open-source licenses. Ehmke and supporters, needless to say, disagree.
The organization’s leadership team includes founding members Ehmke, Don Goodman-Wilson, and Tobie Langel. Elections for the Governing Committee are slated to take place in January 2021.
