A Defence of Ethical Licencing

Since we make the source code of our software publicly available and our programs freely available for re-use, we are confronted with the question of which licence to choose for our works in order to avoid copyright problems. There are essentially two approaches to this: that of the Free Software Foundation (FSF) and that of the so-called “Open Source Initiative” (OSI).

The FSF defines four basic freedoms with regard to free software:

• The freedom to run the program as you wish, for any purpose (freedom 0).
• The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this.
• The freedom to redistribute copies so you can help others (freedom 2).
• The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this. Free Software Foundation

According to Richard Stallman, one of the founders of the Free Software movement, ethical, social and political issues play an essential role for it. In his words , free software is an ethical imperative that essentially respects the freedom of the user.

In 1998, part of the movement split off and formed the “Open Source” counter-movement, from which the so-called “Open Source Initiative” emerged. Its advocates reject the ethical and social values of the FSF and claim interpretive sovereignty over the concept of open source, which for them is the yardstick of free software. In ten points, the “Open Source Definition” (OSD) sets out which criteria free licences must meet in order to satisfy the delicate demands of the “OSI”.

Both approaches concur that the source code of free software must not only be publicly accessible, but must also be allowed to be re-used by third parties as desired. To make this possible, authors can place their works under free licences that grant licensees precisely defined freedom of use. Some of these licences are more permissive, while others enforce, for example, that adaptations must be made available under the same terms.

However, developers are increasingly worried that their software could be misused for unethical purposes. This concern has recently given rise to the Ethical Software Movement, represented by the Organisation for Ethical Source (OES). It collects licences that are basically free, but impose some restrictions. For example, they prohibit the software from being used for mass surveillance or by companies that significantly abet climate change.

As was to be expected, the representatives of the “OSI” also have objections to this. Among other things, they complain that ethical software is not open source and does not deserve the name because it supposedly discriminates against people. Neither of these is true, however.

Yes, software is indeed misused

It is often claimed that ethical licensing is not necessary in the first place, because free software in particular is not being abused anyway; after all, only nerds and programmers are interested in it. This is either incredibly naïve or downright a lie. Otherwise, one might as well argue about the usefulness of licences in general.

In fact, there are numerous examples of projects that have benefited significantly from the cooperation of volunteers and are freely licensed. Just think of the universally used messenger Signal, the Firefox browser or the Lineage operating system. Apart from that, there are also many libraries, frameworks and the like behind the scenes that are built into countless applications. Every developer has probably heard of jQuery, MySQL or Node.js.

It is not difficult to imagine how such software could be misused. The NSA may be using free database software for its mass surveillance. Russia Today probably uses open-source server software to regale the world with putin’s disinformation. And it is not beyond the realms of possibility that Amazon is using freely licensed geographic information systems to find the best route for its parcel delivery people whom it expoits.

However, it is not even necessary to use such extreme examples. Many would already consider it unethical if users of a project’s “fork” were unsolicitedly surveilled by analytics trackers. Others might not want to leave their software in the hands of people who spread conspiracy myths about the Covid-19 pandemic in social media. All such scenarios are absolutely realistic and could affect any developer.

Why ethical software is open source

Furthermore, may claim that ethical software is not open source, which is quite absurd, because the open-source movement does not actually refer to openness of source, but to freedom of licences. Defining free software on the basis of the term “open source” is anything but expedient, because there is an unmistakable difference in meaning between the everyday understanding of open source and the erroneous views of the “OSI”.

Normally, the adjective “open source” only implies that the programming code of a piece of software is publicly accessible. If one wants to state that it can also be freely reused, the term “free software” is suitable.

Note:

• Some software is open source,
• some open-source software is free and
• all free software must, by definition, be open source.

In this respect, the argument against ethical software should be that it is supposedly not free – instead of not open source.

Why ethical software is not “discriminatory”

The claim that ethical software does not fulfil the characteristics required by the “OSD” is also nonsense. The “OSD” does indeed state that free licences must not “discriminate” against any persons or groups of persons or fields of activity. However, as is well known, “to discriminate against” is not synonymous with “to exclude”, but rather refers to an unjustified distinction based on supposed membership of certain groups or categories, such as race or religion.

To equate the licensing exclusion of things like mass surveillance with a term otherwise used to describe, for example, the oppression of black people is extraordinarily cynical, especially when considering that ethical licences are often themselves directed against racism or unequal treatment. Thus, the accusation of (first-degree) intolerance is baseless.

At most, such exclusion might be considered second-degree intolerance, which, by definition, is directed against a person’s customs and traditions because they are found to be intolerant or dangerous. However, enforcing such second-degree intolerance is actually necessary to preserve tolerance itself, as Karl Popper’s paradox of tolerance shows:

Why ethical software is free

In view of this, the open-source movement even resorts to the much-hated FSF definition in order to find a reason why ethical software is not free. In particular, they invoke freedom 0, which explicitly includes the phrase “for any purpose”. However, if one reads through the FSF’s explanation of this freedom 0, one quickly realises that what they mean is that it is not the purpose pursued by the developer that is important, but the user’s intended use. In this respect, there is no valid reason to assume that the definition is directed against the enforcement of principles of free, just and constitutional coexistence.

Nevertheless, quite a few “OSI” advocates insist on a literal interpretation of free software definitions – which, however, is obviously nonsensical. If one were to assume that free licences must actually allow use for “any” purpose, this would include the purpose of contravening the licence conditions. That would be patently absurd.

Why arguing about enforceability is pointless

Many opponents of ethical software also argue that it is impossible to ensure compliance with the terms of the licence anyway. Certainly, it is not at all feasible to prevent someone like vladimir putin from using one’s own software, or even to stop kim jong-un from deporting political opponents.

But first of all, ethical licences are not exclusively directed against worst tyranny, but also against less unimpeachable unethical practices – for example, the use of trackers or the spreading of disinformation. If Eugen Rochko, the inventor of the social media Mastodon, can prevent a former US president from violating the licence terms by not releasing the source code, then it would have been just as possible to prevent the use of the source code for disinformation purposes.

Secondly, and much more importantly, the main purpose of ethical licences is not even to actually enforce the terms set. Often, it is simply a matter of standing up against injustice and instead, for example, advocating for a sustainable and dignified world. Calling ethical software “unfree” just because one abhors idealism is absurd.

Why the concept of “court-tested” is nonsense

Another complaint is that ethical licences are not court-tested. However, to believe that a court ruling on a licensing dispute would in any way create legal certainty would be a serious mistake.

Firstly, every case is different – even if there is some similarity. Even the smallest differences could produce an unexpectedly different ruling.

Secondly, judges are independent in their decisions. In many jurisdictions, the judge is not forced to follow another court’s legal interpretation.

Thirdly, a court ruling would only be binding for one specific country anyway, since the legal situation in other jurisdictions may be completely different.

In this respect, it is almost completely irrelevant whether there are already court decisions regarding a licence or not.

There are no “proprietary licences”

Some people also claim any licence that does not match the OSD to be “proprietary”. Though, looking up this term in ordinary dictionaries, it becomes evident that “proprietary” is in no way the exact opposite of “OSD-compliant”. In fact, it actually refers to intellectual property that may only be used by its owner; a fitting synonym might be “all rights reserved”.

Considering that the purpose of any licence is granting certain rights, something like “proprietary licences” can simply not exist, since they would in no way be any different from the regular protection status provided by traditional copyright law.

Arguing that ethical licences were equivalent to an “all rights reserved” regulation is nothing but pointless.

Sometimes, there is no neutrality

Many critics point out that software must be neutral. Especially in the “OSI” environment, people like to boast that they themselves and their own software are “politically neutral”. However, this is simply reprehensible when it comes to the issues addressed by ethical licences, i.e. mainly human rights violations, war crimes, environmental pollution, racism, unequal treatment or mass surveillance. There is simply no “neutral” position on such topics. For example, anyone who does not condemn a war of aggression as unethical condones it.

The Organisation for Ethical Source writes :

We must not close our eyes from Amazon exploiting its workers, Silicon Valley corporations constantly mass-spying on their customers, energy companies not stopping to abet climate change or social media ignoring hate speech and disinformation. Let us not divorce ourselves from the consequences of our code any longer!

Instead, it is our duty to stand up against such misconduct and to take action. Not just by posting a lowercase tweet on a 264-follower profile, but by imposing sanctions on anyone who does not adhere to the principles of free and just co-existence that we strive to promote. Allowing only “good eyes” to re-use the works we create, the code we write or the products we release may not be sufficient – but it is certainly a beginning.

The crux of the matter

So let us summarise: We are responsible for our code, and almost any code can be misused – whether we like it or not. It is up to us alone to prevent this from happening, and licensing our software under ethical terms is certainly a good option. Please, let us not pointlessly argue about the specifics of some arbitrary definition and instead focus on the actual impact that our work has – both in good and in bad.