Published: Mon 03 February 2020
Maxwell B. Pearl
I wanted to weigh in on the current broiling debate on adding ethics clauses to open source licenses. First, a little background: I've been in nonprofit/activist/human rights technology since 1996, and that parallels my open source use and advocacy. I learned about Linux, and first installed it (using a big stack of Slackware floppies) on a server in my office at my then-employer, Hampshire College, for a reproductive health and rights organization. Since then, I've been both an active member of a growing community of people who, for want of better terms, tried to use technology for good, and an active promoter of open source software for that cause. I founded the Nonprofit Open Source Initiative (now housed at the fabulous organization
Aspiration.) I guess this is just to say: I know something about open source, and something about trying to use software in the human interest.
I also want to say a word about my stance on "Free Software" vs "Open Source." Clearly, from my language, I use "open source" as the catch-all term, and have used it from the beginning. I'm not a free software purist in any sense of the term. I'm an advocate of free software, but I'm practical - I've never thought that free software purity is helpful in terms of getting people and organizations tools they can and will use in their communities. (That said, I have always used fairly strict copyleft licenses on anything I've released as open source.)
OK, so now you have the background, which I hope will help you contextualize my comments about adding ethics clauses to open source licenses.
TL;DR The road to hell is paved with good intentions.
I totally get the impetus to add ethics clauses to open source licenses. But there are two reasons I think they are a bad idea: first, the deep interdependence of open source software on other open source software means that you run the risk of breaking the whole system. Second, copyright infringement enforcement is a horrible (and woefully inadequate) method of preventing people from doing shitty things to each other.
First, whose ethics, and how are they interpreted? If we start down this slippery slope, what happens if the author of a key library decides that their software shouldn't be used to assist women in getting legal abortions? That means that reproductive rights organizations now can't use their open source CMS, which depends on that key library. "Ethics" can be, in some minds, just another way to describe "political opinion." You run the risk of basically breaking that interdependence with a web of ethics clauses that no one can keep track of. Licenses should only cover what they cover now: under what conditions the software can be modified, and under what conditions it can be shared. As it is now, licenses that cover how the software can be used (commercial or not, for example) are not considered open source licenses.
same exact software that has been recently called out as used by Palantir for its work with ICE is also used everyday for organizations around the world for human rights. Doing anything which runs the risk of breaking the deep interdependecy of open source software puts these uses at risk, and isn't going to do much to affect Palantir. Worse came to worse, they'd either run the risk of lawsuits and use their prodigious funds to defend themselves, or simply re-write a bunch of code and make it proprietary (and thus the open source community potentially loses.) Nonprofit and human rights organizations don't have the resources for lawyers or re-writing code, and I can bet that the general counsel of some larger orgs that have one will take a look at some of the "ethical source" licenses and tell their tech teams they can't use them because they might be interpreted one way or the other.
I'm all for #NoTechforICE, in general. I think working to starve companies like Palantir of talent is a start. Also working to promote divestment from companies like that is also a place to go. But frankly, people who want to use software to make money doing shitty things to people will always exist, and the best answer is either government policy, or a revolution, take your pick.