6 myths about “ethical” open source licenses

Last week we released the Just World License (JWL), our ethical open source license, and explained why it’s needed.

Whenever the idea of an ethical license is raised in the open source community, common objections come up. In thinking about these, it’s worth thinking about the early days of the GPL (GNU Public License) and the similarities in the concerns raised in the early days of the GPL with ethical licenses.

The GPL is also rooted in a strong ideological viewpoint (software should be free, as in speech) and is a big part of why open source software exists and is now widely accepted. But when it first appeared it was a very new and strange idea about licensing software, and was met with a lot of resistance.

Now, let’s bust some myths:

1. Enforcement isn’t the point

Most objections to an ethical license stem from the idea that such a license is unenforceable, but, like most legal documents, enforcement in court is not the main objective. Trying to enforce anything in a court is expensive and painful and something that most people hope to avoid.

If a big company wants to use your software despite your license restrictions, they likely have the resources to bury you in legal paperwork.

This is no different from the GPL.

The GPL wasn’t written so that developers could haul big companies to court for misusing open source code. Yes, it’s legally specific in it’s construction and possible to enforce, but that wasn’t the purpose the authors had in mind for it. They created the GPL to spread an idea — the idea that software and it’s source should be freely shared.

The purpose of ethical licenses is the same: to spread the idea that software should be used for the betterment of the world and that as developers we can take responsibility for how our code is used.

2. Ethical can be defined

The world is not as grey as we’re often led to believe.

The JWL prevents people from using licensed software for (among other things) leaving the planet in a worse state for our children than we found it, exploiting slave labour, promoting racism, or hacking behavioural psychology to make people waste loads of their life clicking ads.

These aren’t exactly the trolley problem.

3. What’s ethical is subjective

True, but what’s wrong with that?

Did you ever hear the story of the successful businessman who suffered an injury to the part of his brain that processes emotion? He was unable to function and his career spiralled — without the emotional part of his mind, he was unable to discern what was important or to weigh possible outcomes of different actions.

Once we’ve established subjectively what’s important to us though, it is possible to make a rational ethical argument for those things. For example, you might draw on Kantian ethics (don’t do things you wouldn’t want other’s in society to do), or Utilitarianism (do things that result in the most happiness for the most people).

We now have well researched science that climate change is caused by burning fossil fuels, and will almost certainly lead to displacement, harm and death to millions of people. Is it right to undertake activities that knowingly contribute to that kind of suffering? From a Kantian standpoint, it’s unethical. It’s also hard to argue that such a future would generate the most happiness for the most people, so it doesn’t pass a utilitarian test either.

So now we have a framework with which we can decide what unethical behaviours we want to exclude from an ethical license.

4. An ethical license is enforceable

IBM thought so.

The story of JSLint is held up as the poster-child of how silly ethical licenses are. The library’s license included the term “The Software shall be used for Good, not Evil”, which was claimed to be pointless and unenforcable because it was so vague. And yet, IBM was sufficiently scared of the possibility of legal trouble that they asked the JSLint author for express permission to use JSLint for evil.

The fear of being discovered or whistle-blown and the possibility of enforcement is enough for most companies, even the ones doing bad things, to decide it’s not worth the risk and go and find some other code.

(This is why it’s important to write an ethical license that is very specific and clear, so that good actors need not fear enforcement).

5. Our lawmakers aren’t coming to save us

Some objectors point out that anything bad is already outlawed, so an ethical license is pointless.

Cue obligatory video of lawmakers asking Mark Zuckerberg about sending email over WhatsApp.

We like to call politicians “leaders”, but they’re actually followers. Our lawmakers are among the slowest to move when it comes to responding to ethical challenges, let alone technology. I mean, it’s 2018 and there are still products on our shelves that are made by actual slaves.

Again, that’s why we use the license — to spread the idea about what should be socially acceptable to other areas of society until it becomes normal enough to be legislated.

6. I’ll have to check which licenses I can/can’t use for my work

Well, that’s kind of the point.

If a company intends to use one of the most powerful tools of the information age to cause social harm, then an ethical license is meant to be an inconvenience and create a drag on their productivity.

The same could be said of some FOSS licenses. Some companies today are using tools like license checker to avoid GPL code because they don’t want to be forced to share their improvements.

GPL proponents would likely say this is the price you pay for doing what they consider to be anti-social behaviour. It’s the same for an ethical license.

And if you agree anti-social behaviour comes with a price, then it’s actually much easier to identify the socially harmful aspects of, say, using code in a company that benefits from slavery or gambling, than for refusing to re-share your changes to an open source code library.

So if you’d consider using a license that forces people to share, why not consider a license that forces people to care? Aside from the patronage of companies that harm all of us, what have we got to loose?

Have a read of the Just World License, and let us know if there are other myths about ethical licenses we should bust.