Sorry, Ms. Ehmke, The “Hippocratic License” Can’t Work

Coraline Ada Ehmke has released the Hippocratic License, at

This is an entirely well-meaning effort and I applaud her sentiment. It just won’t work and is, IMO, a bit simplistic and self-contradictory for reasons I will discuss.

I first encountered a license like this about 25 years ago, attached to the Berkeley SPICE software by the University of California. That license prevented the use of the software by the Police of South Africa. By the time I encountered the license, Apartheid was long over and there were Black Police in South Africa. But they were still not allowed to use the SPICE software. Of course they never had any use for an analog electronic simulation package, so the license was symbolic in nature. But the discrimination inherent in the license meant the SPICE package was “non-free”. We put it in the “non-free” archive in Debian.

I was so impressed by the failure of that license that I wrote into the Debian Free Software Guidelines, later re-labeled as the Open Source Definition, rules preventing discrimination against persons, groups. and fields of endeavor. The first two, discrimination against persons and groups, sound a lot like Ms. Ehmke’s intent. The last, discrimination against fields of endeavor, similarly prevents discrimination, but is opposite to her intent. It’s this one that makes the Hippocratic license not Open Source, not that I am clear its proponents care about that.

Let’s go over the problematic terms. Here they are in entirety:

The software may not be used by individuals, corporations, governments, or other groups for systems or activities that actively and knowingly endanger, harm, or otherwise threaten the physical, mental, economic, or general well-being of underprivileged individuals or groups.

Emphasis mine. Obviously, I am not for hurting anyone of an underprivileged group. I am a member of several myself: I am mostly recovered from severe speech and movement handicaps, I am pathologically non-neurotypical, I am ethnically Jewish, I’m aged, I’m left-handed, I could probably come up with more.

The first problem with these terms is that we have a body of criminal law which is meant to prevent people from doing bad things. We also have a large body of civil law that is in general about harm to people and being made good through the courts. Rule of law is there to protect the underprivileged from the powerful. We have a huge process of discussing law, making decisions about law, and making law.

Because Ms. Ehmke isn’t satisfied with the existing laws, with good reason, the Hippocratic license tries to supplement the body of criminal law and civil law in a single sentence of terms in a copyright license.

Copyright law is about a set of reserved rights to copy a work, create derivative works, and to perform a work. A license is used to give people permission to use those rights. So, if you harm someone of an underprivileged group, according to Ms. Ehmke, you are infringing the copyright of the work, or violating the contract inherent in the license.

Unfortunately, It is unlikely that a court would actually enforce Ms. Ehmke’s terms in a way that would change the activities of a violator. Ms. Ehmke can get what she wants by lobbying for better law, and in that would have my support.

The terms are simply far more than could be enforced in a copyright license. To go over just a few of the legal problems, they are self-contradictory (as I will explain) and will be judged to be unclear by the court. There is no required performance in copyright that could be used for their enforcement, many of the entities that perform the objectionable acts are sovereign or otherwise not subject to copyright law, there is insufficient consent to her license.

Let’s go over some of the specific terms, and the problems with them.

We can start with the name. The Hippocratic license, named after an oath shortened as “do no harm”. Unfortunately, what is “harm” just isn’t that simple.  The classical (not modern) version of the Hippocratic Oath includes this (translated):

I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.

Some versions prohibit birth control, not just abortion. Ms. Ehmke is probably pro-choice, as am I, but pro-life folks would contend that our conduct is immoral. And I would rather see a person with hopeless illness released with dignity from their pain, and hope that Ms. Ehmke would agree with me.

The point here is that the definition of what is ethical changes over time, from place to place, and from one individual to the next. Being an adult has often meant having to make your own ethical choices, even when they go against society. A proponent of the Feminist movement, as Ms. Ehmke is, should understand this.

This choice was faced by my father, who enlisted as an Army Reserve and was called up for both World War II and the Korean War. He went to Europe to kill nazis and fascists in the service of his country. Of course I am proud of his actions and support them, nazis and fascists were out to take away people’s rights and to kill Jews – meaning my entire family.

Because her definition of harm is limited to individuals of an underprivileged group, war is, by her definition, always harmful. The losers will be underprivileged, even when they have horribly violated the rights of others. So Ms. Ehmke’s license closes out a path by which nations and rebel groups work to liberate the oppressed. Not all war is unjust. Thus, Ms. Ehmke’s license is self-contradictory.

It is an unfortunate fact that all law ultimately is administered by the legally sanctioned use of a weapon or imprisonment by someone employed or deputized by a government, or the threat of such use. As a society, we protect people’s rights by hurting the people who violate them. We make judicious use of violence – never as individuals, but as a society.

Ultimately, nobody could enforce Ms. Ehmke’s license without harming someone, or at least threatening to do so. And it would be easy to make a case for that person being underprivileged. Thus, once again, Ms. Ehmke’s license is self-contradictory.

Let’s talk about economic harm. It is an unfortunate fact that all Open Source software economically harms someone. We can live with this because the collective economic benefit to all people is much greater than the harm to a few. We live in a capitalist society with economic competition. So, we can expect that when we make great Free Software, someone who makes, or might otherwise make, proprietary software becomes financially underprivileged, is harmed economically, and is unable to pursue the business and work she or he desired. And obviously, use of the software in a business that competes with other businesses leads to some of those competitors becoming underprivileged economically and economically harmed. And yet again, Ms. Ehmke’s license is self-contradictory.

So, unfortunately, this well-meaning effort doesn’t work, and these terms don’t belong in a license. I will happily support Ms. Ehmke in pursuit of legal reforms meant to achieve the protection of underprivileged people.

– Bruce Perens




About the AMSAT 2019 Director Election

The AMSAT 2019 director election will close voting on September 15. If you haven’t read it, here are the candidates I’ve endorsed.

I wanted to document why I got involved, and what I feel were anomalies in the election procedure.

As I write this, there are a few days left in the election. According to the ElectionBuddy instructions if you haven’t voted, and haven’t received or can’t find your ballot, the election administrator, [email protected], should be able to give you a key and online voting instructions, or direct you to someone at ElectionBuddy who can help. Of course I can’t guarantee that he’ll want to.

I have been supporting the Phase 4 Ground Station project for several years. Michelle Thompson W5NYV, the project lead, had confided that she found it difficult to work with AMSAT management. This eventually became so serious that we decided to create Open Research Institute as a 501(c)3 tax-exempt organization to support the Ground Station project and other Open Source space projects outside of AMSAT. We don’t particularly want to have this done in a separate organization from AMSAT, we just don’t feel there is any alternative at this time.

We had other worries about AMSAT leadership. There are conduct issues. I know many brilliant people who made some of AMSAT’s greatest projects, and have curtailed their work for the organization if they haven’t quit completely. AMSAT can’t support itself from membership fees. And we’d like changes in the technical direction.

So, when five candidates formed a slate to run for the AMSAT board, epsousing similar ideas to mine, I decided to write a public letter in support of their candidacy and to financially support their campaign mailing. I had previously written a similar letter to endorse ARRL board candidates during the “transparency vs. confidentiality” dispute within ARRL. 4 of the 5 candidates I endorsed won the ARRL election, and that was the end of the “confidentiality” issue.

The slate of AMSAT candidates adopted my new letter as part of their campaign material and mailed it to the AMSAT membership. That’s why you’ve received a postal letter from me, although it was mailed by the candidates.

At least one of that slate will win, simply because of the number of candidates.

AMSAT’s bylaws provide these rules regarding the election. I feel they’ve been violated, and that whoever wins, the election was run ineptly and not in compliance with AMSAT’s own rules.

Section 3: Voting shall be conducted by secret ballot in a fair and democratic manner. The Secretary shall prepare written ballots listing all candidates found to be duly nominated and eligible for election. Such ballots shall be mailed to all Members or, at the Secretary’s discretion, included in a publication of the corporation mailed to all Members, in either event such mailing to take on or before July 15 of each year. Duly nominated and eligible candidates shall be afforded equal opportunity to circulate statements of their qualifications and positions to the Members through the corporation’s publications and shall have use of the corporation’s mailing lists for election-related purposes at no cost to the corporation.

AMSAT made no plans to allow members to publish their platforms in the organization’s publications, as is called for in its own bylaws, and there has been no such publication. The ballot mailing included no information on the candidates. Severely-limited candidates statements, constrained to 350 words and prohibiting URLs and criticism of individual AMSAT officers, were carried on the web site, but I received complaints from AMSAT members that they did not know of this, that the link was initially in too small a font to stand out, and that even after the link text was enlarged many members never found the candidate’s statements on the web site before they voted.

AMSAT also made no plans to provide mailing lists to the candidates to enable them to perform their own campaigning. They had to be forced, with a letter from a candidate instructing them on their own bylaws, which they seemed to be ignorant of.

The candidate statement guidelines and a set of radically different election rules than in the past were communicated to the candidates on July 3, 2019, at the start of a holiday weekend shortly before the election opened. Thus, the candidates were not given adequate time to prepare, and were not able to get their mailings out to members before the ballots arrived.

I feel that all of this was prejudicial to anyone but the incumbents, who are frequently heard in AMSAT’s publications and online services. The incumbents must also feel this way, since they haven’t bothered to create a mailing of their own.

I don’t know if any of this is due to malice, or simply ineptitude. AMSAT has rarely had a contested election at all, indeed it’s been difficult to find people to fill the necessary offices.

But the election has been somewhat contaminated by AMSAT’s gaffes in operating it. This applies whoever wins.

Whatever happens, the candidates, and I, will be back next year for the next AMSAT election. And we’ll demand better processes, leading up to the election.

Bruce Perens K6BP