Rise of Ethical Source Software Licenses
In spring 2018, Google quietly removed the company’s unofficial motto "don't be evil" from the preface of Google’s Code of Conduct. Although the tech giant retained the phrase in the Code of Conduct's concluding statement, to some industry watchers the move was indicative of the larger technology sector's shift away from ethical guiding principles.
In response to this perceived shift, software developers active in the free and open source software (FOSS) community began creating licenses that condition the use, modification, and distribution of free software on the licensee acting in an ethical manner. These "ethical source licenses" have sparked debate within the FOSS community about whether the licenses are consistent with open source software principles and whether commercial enterprises will use software licensed subject to ethical restrictions.
Three ethical licenses have garnered the most attention:
- The Anti 996 License requires the licensee to comply with all applicable laws, regulations, rules and standards relating to labor and employment, and prohibits the licensee from forcing its employees to weaken or relinquish the employee's remedies under such laws, and from restricting its employees or contractors from reporting violations of these conditions.
- The Vaccine License requires the licensee to vaccinate himself or herself, as well as the licensee's children, and mandates that the licensee flow down this requirement to its employees if legally permissible.
- The Hippocratic License requires the licensed software not be used by any person or entity to violate human rights law.
Proponents of the ethical source movement argue that these licenses serve an important purpose of allowing developers to ensure that their work is being used for social good. They believe that public demand for ethical products will spur businesses to adopt these licenses or, at the very least, spark conversations about use or misuse of software within these organizations.
Criticism of Ethical Source Movement
Critics of the movement note that ethical source licenses may not fit the Open Source Definition (OSD) maintained by the Open Source Initiative and are contrary to the foundational principles of open source software. In order for a software license to be called an open source license, it must first be approved by the Open Source Initiative as compliant with the OSD through its license review process.
The OSD sets out the characteristics that each open source license must have. In particular, an open source license may not prohibit any person or group from using the licensed software and may not restrict use of the software in any particular field of endeavor. Critics argue that because ethical source licenses limit the scope of permitted use of the licensed software, they are not compliant with the OSD and should not be eligible to be considered open source software.
Critics also point to the difficulty of complying with the restrictions in these licenses. For instance, the Hippocratic License prohibits the licensee from using or allowing the use of the licensed software "for any systems, activities, or other uses that violate any applicable laws, regulations, or rules that protect human, civil, labor, privacy, political, environmental, security, economic, due process, or similar rights." This is a broad and subjective restriction.
Laws, regulations, and understandings of what is and is not ethical behavior differ wildly across jurisdictions throughout the world. It would be difficult for a commercial enterprise to be certain that it is in compliance the terms of many ethical source licenses, particularly a multi-national enterprise that is subject to the laws of multiple jurisdictions.
For example, a licensee that incorporates software licensed under the Hippocratic License in a customer-facing tool could violate the terms of the license if the customer is perceived to be engaging in activities that violate individuals' privacy rights, something that some of the largest technology companies in the world have been accused of doing. This uncertainty could delay or prevent adoption of ethical source licenses in the business world.
In addition, presence of ethical source licensed software in a company’s software stack could raise questions during investment or M&A diligence, as investors and acquirers will likely be unfamiliar with and potentially alarmed by the terms of these licenses. Investors or acquirers may ask the company to replace these components, which could be costly for the company and could delay closing.
Implications for FOSS Community
It is not yet clear whether ethical source licenses will be broadly adopted in the FOSS community or the software industry. However, the movement appears to be gaining steam and may be adopted by more open source projects.
Companies involved in software development using FOSS should carefully consider the implications of deploying software under these licenses within their business environment. Companies should also consider updating their open source policies to flag ethical source licenses as requiring additional internal review prior to deployment.