Invasion of The Ethical Licenses

About 23 years ago, I created the Debian Free Software Guidelines to help the Debian developers decide what software was permissible to include in Debian, which aspired to be 100% Free Software, and what should be consigned to a “non-free” repository upon which Debian would never depend. Nine months later, those guidelines became the Open Source Definition, and I announced Open Source to the world.

It was a deliberate decision that Debian’s definition of Free software would not discriminate against persons, groups, or fields of endeavor (essentially anything someone might want to do).

The idea behind this was that Freedom meant Freedom for everyone, not just Freedom for people we approved of. This meant, among other things, that the Debian system could be used for war. But more importantly, it meant that the Debian system could be a common ground for the sharing of software among people who did not agree on social issues, and just maybe that it would be a way for those various people to work together and gain respect for each other, and ultimately come to greater agreement. The name of the Debian derivative Ubuntu indicates how greatly they value this idea.

Of course, Open Source took all of these good characteristics from Debian, and continues with them to this day.

More recently, there has been a spate of “ethical” licenses, which require specific conduct of the software user. Although there has been a regular stream of such things suggested to the Open Source Initiative over the past 20 years, the most recent crop includes:

  • The Anti-996 License, which requires that the licensee not commit labor abuses which are said to be rampant in China.
  • The Vaccine License, which requires users to get their shots!
  • The Hippocratic License, which prohibits abuses against underprivileged minorities.

The creators of these licenses mean well, and their sentiment is laudable. Unfortunately, their licenses won’t work.

Despite the seeming impossibility of its enforcement, the Vaccine License is the most professionally constructed of this pack, carefully targeting the approval process of the Open Source Initiative – and IMO missing it. But all three licenses appear to be unlikely to obtain the agreement of a court in enforcement, and scaling their requirements would be a sort of full-employment act for lawyers.

Let’s work through how these licenses would be enforced.

When these licenses are enforced, the copyright holder is the plaintiff, a fancy word for someone who makes a complaint. Their complaint is that the defendant, the licensee, committed a tort, a violation of civil law. The tort is copyright infringement.

The important point here is that the complaint isn’t that the license was violated, the complaint is that the defendant did not have a license at all, and is infringing copyright. The defendant then has to prove that they did have a license, and that they were obeying the license’s terms, or that the court should for some reason not honor those terms.

Licenses are also contracts, and thus the tort can be breach of contract. But contracts require the consent of both parties – the copyright holder, and the licensee. Real consent is indicated by signing the contract, but that doesn’t ever happen with this sort of license. Instead, there is a lesser indication of consent by the action of using, distributing, or modifying the software.

However, consider enforcing the Vaccine License: imagine explaining to a judge that someone consented to be injected with vaccine by using a piece of software, and that they become copyright infringers by failing to get their shots. Having the court honor this bizzare argument seems unlikely.

Consider enforcing the Hippocratic license, which attempts to prohibit various sorts of harm against disadvantaged minorities.

The first problem is that this harm is often performed by their own government, which is sovereign, and thus can’t be sued. The United States government allows itself to be sued in a special court, The Court of Federal Claims, in certain cases. But that court will limit itself to paying copyright royalties rather than enforcing arbitrary terms of the license. Since none of these licenses routinely require any royalties, the likely payment would be zero.

One might successfully bring a suit against a federal contractor, although their first attempt at defense would be to hide behind the skirts of the sovereign government that ordered the work. This suit, however, has to be brought in the nation where the offense occurred, where the court of that very same government might not be at all sympathetic to your cause.

If you actually get past all of these hurdles, the most likely outcome is that the court would not honor your license term. The reasons given would be probably be a lack of proper consent, or that the term was illegal, improper or unenforceable.

Who is going to finance these cases? This is not a frivolous question. A single lawsuit I was involved in billed about $650,000 in defense fees, which I have not had to pay due to the court’s findings and the charity of a very kind lawyer and her colleagues, whom I will owe favors for life. Legal fees for either party in lawsuits over these licenses could easily be in the Millions.

Sometimes, organizations like EFF will take on a case pro-bono, without charge, for the public good. Join EFF! But how often could they do this? It doesn’t seem that enforcing any of these licenses could possibly scale to the number of potential violators. We have enough trouble enforcing plain Open Source licenses that do not attempt “ethical” terms. The Software Freedom Conservancy has a list of violations many thousands long, and can bring at most dozens of cases a year.

So, what we’re left with are licenses that lawyers, and probably courts, and the violators themselves, laugh at.

What else is there that we can do? What the creators of these licenses should have done in the first place. Work to enact better laws, that prohibit the actions they despise and levy real punishment for the offenders.

But little software developers feel powerless to do that. So, they try to replace the entire body of civil and criminal law with a few lines in their licenses. It’s a pity that won’t work.