“Free software licenses should include ethics clauses”

Libre Software & Property Rights

“Free software licenses should include ethics clauses.” writes Aral Balkan, of the not-for-profit Small Technology Foundation, on Mastodon Feb 01, 2023, 08:28. He continues:

If our only answer to unethical licenses is indifferent ones—as opposed to ethical ones—I don’t see how we win this. I feel the offhand dismissal of ethical licenses in technology has been and is a mistake.

There is a bit to unpack here; the meaning and raison d’être of Free Software, as well as its relationship to ethics – just to start with! When we add ethical clauses then it follows that we also need to particularly consider law and rights. Aral admits that if Free Software is to be adapted, changed, re-visioned, (or what you will) that it would be complicated:

(I don’t argue it’s a simple thing to get right. I don’t overlook the complexities involved. I don’t have all the answers. But I feel we should be exploring the problem and coming up with workable solutions instead of dismissing it outright as infeasible. There is value even in exploring the problem. The journey is the destination and all that…)

Some people adopt Free Software due to apparent security benefits. Others looking to save a dollar see Free Software as gratis software. Many people however, be that the tech user or developer, adopt FLOSS (Free/Libre Open Source Software) due to some sort of ethical consideration. Libre Software after all is not an out of the box or default option for the most part – it has to be sort out and embraced.

The Free Software Foundation even states:

mray @mray@social.tchncs.de concurs writing in reply:

@aral Free Software is ethical. Neither unethical nor indifferent.

It is about context.

All this is to say that FOSS developers are not unconscious actors. They are not exactly ‘indifferent’ – so what is Aral referring to exactly and what is he trying to ‘win’?

Say there’s a new free and open source license (not approved by the FSF) that is essentially AGPL version 3 but with one additional clause:

“You must not use this code as part of any system designed to profile, discriminate against, or otherwise oppress people based on their race, gender, sexuality, religion, or any other protected characteristic under the Universal Declaration of Human Rights.”

Aral Balkan

He also includes a poll with two options:

Would you consider adopting it?

• No, you can use my code to oppress minorities
• Yes, don’t use my code to oppress minorities

This is quite the black and white choice! A limited selection with preloaded consequences. I cannot help but think of George Bush and his declaration ‘You Are Either With Us, Or With the Terrorists’ – 2001-09-21. If you do not agree with one choice that means you support the opposite.

Simon Lucy @simon_lucy@mastodon.social looks to agree with me:

With such a loaded question? Why the virtue signalling?

As does Hazelnoot @hazel@koehlercode.dev

@aral why did you write the poll choices in such a loaded fashion? The question is “would you consider adopting it” but the answers are “use / don’t use my code for hate”. That’s not the same thing.

EdenDestroyer (He/Him) @edendestroyer@masto.ai appears however to agree with the more Bush-like stance:

@aral Indifference and intent-ful apathy towards unethical actions is an act of enabling them.

He is not the only one! 83% voted in favour of the second option. Some believe that it even needs to be extended to government organisations.

schrotthaufen @schrotthaufen@mastodon.social

@aral I’d even go one step further, and explicitly deny use to law enforcement agencies, and the military.

Dan Hedley @hedders@mas.to sees the logical fallacy in the poll question and proposes another:

@aral It seems to me that this may be the wrong question to ask. A better one might be “is the terms of a generic software licence a good and useful place to try to regulate the ethical behaviours of the end user of the licensed software, and is the licensor likely to be the best person to enforce those ethical behaviours?”

Others simply point out that other licences in this respect already exist:

Tobias Schmidl @tobias@schmidl.dev

@aral@mastodon.ar.al hmm. You’ve looked at https://ethicalsource.dev/licenses/ ? There seems to be already quite a collection of licenses to choose from.

Balkan in suggesting a license mentions The Free Software Foundation (FSF). The FSF is a logical start for exploring the meaning and raison d’être of Free Software. After all its founder coined the term.

“Free software” means software that respects users’ freedom and community. Roughly, it means that the users have the freedom to run, copy, distribute, study, change and improve the software. Thus, “free software” is a matter of liberty, not price. To understand the concept, you should think of “free” as in “free speech,” not as in “free beer.” We sometimes call it “libre software,” borrowing the French or Spanish word for “free” as in freedom, to show we do not mean the software is gratis.

So basically we see here:

1 ‘User Rights’ -freedom to..

and

2 Liberty/Libre -“is a matter of liberty” We sometimes call it “libre software,”

It is also important to understand the ‘why’. Free Software is a reaction against ‘Non-Free’ or Proprietary Software. To go further with need to look at the objections to Proprietary Software and why that would violate ‘User Rights’.

The FSF simply says that proprietary software ‘denies users these freedoms and benefits’ and that it can be spyware and dangerous. There is not a lot in there to be honest and it could even be called a circular argument. There are many deficiency’s, contradictions, conflicts or competing values within the FSF lexicon.

Morten Rand-Hendriksen @mor10@front-end.social adds his interpretation in relation to the FSF sister organisation GNU:

@msw @aral The GNU Manifesto is a great example. It’s socialist (from each according to their skills etc) and libertarian (any restriction is inherently evil) and statist (software tax on corporations) and utopian (robots will do our work for us) and meritorious (the best developers gravitate towards the best work) and pretty much detached from the realities on the ground.

Nonetheless, whereas Morten Rand-Hendriksen @mor10@front-end.social points out that The Open Source Initiative controls the definition of ‘Open Source‘ likewise the FSF controls the definition of ‘Free Software’. Let us then continue with its claims, namely User Rights. Why should users have those rights?

I will give an explanation in terms of ‘Property Rights’ – as Proprietary software is considered ‘Intellectual Property’ (IP). The concept of property then is of key importance to the conversation. I will then explain the conception of Liberty or Libre, and further clarify expanding upon these principles with the idea of ‘Negative/Positive Rights’ and law.

Patent attorney Stephan Kinsella informs us that the concept of property came about as a solution to limited resources. It is a ‘technology’ that helps to avoid conflict -disputes over who gets what, how much and how to distribute it.

The concept of property came about to solve the issues of scarcity and rivallrousness – competing interest. This for the most part limits the idea of property to the physical world; cryptocurrency notably has created digital scarcity. Ideas, patterns, recipes however are not bound by scarcity or rivallrousness. If I were to take without permission (steal) your laptop this would deprive you of your tool. If I were to copy the code of your email client however that does not deprive you of your email client or the use of it. The laptop is scarce and requires many resources that the market competes for. It is property. The email client is not property.

The bottom line – software does not meet the definition of property and therefore IP is a bogus concept. With this understanding the user has the freedom to run, copy, distribute, study, change and improve the software – as there is no property violation -no theft has occurred.

Arne Babenhauserheide @ArneBab@rollenspiel.social notably adds:

My reason is that the goal of Free Software is to end proprietary software. And we are still far from that goal.

Back to the FSF definition of Free Software: what meaning is there in the nomenclature of “is a matter of liberty” and We sometimes call it “libre software,”.

“Free” Software is ‘free’ as in libre or liberty – that is, ‘free from’. Meaning there are no impositions. Eg A Free Market or Laisez-fair market is one free from interference. In the case of software, free from restrictions – notably proprietary restrictions.
Proprietary software is defined by (artificially) imposed restriction. The object of Free Software or Libre Software is remove artificial imposition, to remove clauses – not add them!

An aside. Although the terms Liberty and Freedom have distinct meaning they are related and can be conflated which causes confusion among some. Particularly so when there is a cross over in terminology; like the term Free Speech, aka Freedom of speech

a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction..

The use of the negative ‘without’ reveals to us that freedom in this respect means Liberty. Freedom of Speech does not mean people have the right to be given a platform to voice their opinion – but gives them them the opportunity to find or create a platform. Freedom follows on from Liberty. Where Liberty is the absence of coercion or being ‘free from’, then Freedom equals being ‘free to’. Freedom is really just the opportunity and possibility to do things – as a result of being in a state of liberty.

At this point people may object, as Free Software is quite often licensed under the FSF, under the GPL Copyleft licences. Copyleft adds restrictions! eg. the requirement that the same rights be preserved in derivative works. Is Copyleft even truly ‘free’ then? There is the argument that these clauses are defensive. If the Law upholds the injustice of Proprietary licensing then Copyleft clauses can be considered a mitigating necessity. By adding this clause it does not enable the law to allow others to apply legalised aggression in a fork. There is perhaps some merit to this line of thinking.

Another aside. One could also argue that there is nothing inherently wrong with hypothetical ‘closed source’ software that is not proprietary. One should not be forced to share or disclose an idea. Control and possession are different concepts to ownership and property. However, in a world without the violence of proprietary software law I am not sure this would be the best business model though -apart from the short term gain perhaps. Openness also means accountability. There is a reason why people trust Bitwardens technology with their passwords. Definitions and intentions aside in regard to ‘Free Software’, The Cathedral and the Bazaar by Eric S. Raymond is good source for digging into that.

Some developers will even licence software under a proprietary licence (and even open the code) in order to defend other bad actors ‘hijacking’ their software under proprietary restrictions. The aggression would only result if the developer decided to bring legal action against someone using the software.

Then there are the more ‘freer’ licences – Permissive licences. These add no restrictions, well, that is apart from that of attribution being a condition of many. Permissive Licences in effect do not attempt to claim jurisdiction of policing and judgement – the domain of the law. Are they the most truly free?

Somewhat tangentially related, nonetheless, an investigation into ‘Negative Rights’ and ‘Positive Rights’ can be informative as to why the non-restrictive approach has the most merit.

Let us briefly look at the difference using Education as an example.

Education Negative Rights: ‘Everybody has the right to learn’. Religious and legal enforcement of disallowing girls in the middle east to go to school would be a violation of a negative right to be able to learn. The state banning books or censoring the internet would be a violation of a negative right to learn.

Education Positive Rights: ‘Everybody has a right to an education’. A state providing ‘free’ education is one example. Mandating that all children go to school for their benefit is another example. Requiring a degree from a government approved institution in order to work in a certain field is another.

The former simply relies on removing impositions. eg. remove the verdict that girls cannot attend school. The latter requires intervention. eg. In order to provide a ‘free’ education then the state must tax its citizens – which means taking payments off others even if they do not consent, which would be a violation the negative right not to be robbed. Mandating that all children attend school means enforcement against those who refuse. Enforcement requires violence against resistance and violates the individuals right to learn in the manner they chose. Positive ‘Rights’ infringe upon negative rights.

The FSF’s language use suggests the negative interpretation also – ‘…asserting the right to learn’

Jimmy Hartzell @thecodedmessage@tech.lgbt does not agree with adding ethics to the licence and envisions problems.

@aral Oh, I have an idea! How about fighting evil literally any other way instead of trying to do it through software licenses, an extremely ill-adapted tool for that task, where all the obvious ways of doing it have horrible consequences and downsides?

Now the use of software is optional and voluntary -for the most part. (Some countries of late have required digital I.d. -which is neither Libre, considers users rights or privacy). So, is adding clauses to software is bad per se? In fact many purchases or use of things comes with terms and conditions. This is a contract agreement and is voluntary based. It can be clarifying and head off disputes. An important distinction needs to be clarified in this respect, but my point here is that every clause that is added creates restrictions with flow on effects that may create problems. What flow on concerns?

Well, law -and all that surrounds it; judgement, enforcement, arbitration, restitution, and punishment.

Regarding enforcement meejah @meejah@mastodon.social writes,

@aral “but who will bell the cat?”
One advantage of e.g “FSF-backed” licenses is that they have an interest in enforcing them, and lawyers. Even if I might prefer assholes to not use my softwares, I am also not interested in suing assholes…

The more laws and restrictions there are,
The poorer people become.
The more rules and regulations,
The more thieves and robbers.

Lao Tzu

Alex Lohr @lexLohr@chaos.social also points out an issue:

@aral The issue here is that criminals don’t follow licenses and states have their own instances of abuse exempt from being subject to licenses.

Still, this is a good start on the discussion what we developers can do to improve more than just software? Licenses alone are not going to cut it.

Many in the thread point out the complications that arise and how it could even be workable. Perhaps even counter productive.

zero323 @zero323@mastodon.social

@aral It’s not like “ethical” licenses don’t exist, but it seems unrealistic to treat them as something more than a statement of intent (not that it can’t provide value by itself). If you can’t use legal tools to fight the malevolent practices directly, trying to prove they violate the license sounds hopeless.

It might be better to avoid building systems that are easily perverted and used for discriminatory purposes in the first place.

We need to understand the purpose of law. It was initially about property rights. Frédéric Bastiat in his book ‘The Law’ 1850 writes:

What, then, is law? It is the collective organization of the individual right to lawful defense.

Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right.

Frédéric Bastiat

So the law is about defending property. If software does not qualify as property then what is there to defend? To add those clauses actually implies you have some sort of right to defend it. If there is no ownership in ideas/software then you simply cannot claim such a right, no?

In fact given Bastiat’s insight that, “collective right — its reason for existing, its lawfulness — is based on individual right”, then Balkans clause with it wording, “oppress people based on their race, gender, sexuality, religion” in effect almost suggests a reversal of logic in placing superficial collective characteristics over the individual.

Shawn Webb @lattera@bsd.network

@aral I would probably end the license text immediately after the word “people.”

This however also raises another question. Balkan lives in Ireland. I would assume that Ireland already has laws regarding discrimination of the above. Why then double up? I would suggest that it is the enforcement of the law towards individuals or organisations that may be lacking, if there are actual problems, rather than a lack of rhetoric. (Of course, culture precedes law – more below) If Ireland is not merely his concern, then is it his intention to go on a crusade into ‘heathen’ territory to fight discrimination and oppression?

Joxean Koret (@matalaz) @joxean@mastodon.social similarly asks:

@aral It would have no real value, unfortunately. Who is going to ‘sue’ a dictatorship for an Open Source license violation?

Scott Leggett @smlx@fosstodon.org recognises the doubling up:

@aral In any jurisdiction where people adhere to copyright licence terms all the things in your additional clause are already illegal, and those laws have much stiffer penalties than copyright licence infringement does.

Skyglobe @skyglobe@hostux.social ‘s comment alludes to a more appropriate place for adding restrictions.

I am giving my work to the World, knowing that the World is full of good and despicable people. I am also saying: “if you decide to use this you are on your own. I have no obligation to help you”. And I will not help those who I find despicable.

Skyglobe indicates there is the possibility of help with ‘I have no obligation to help you” and with the added condition, “And I will not help those who I find despicable.’ In this language we see terms and conditions – not with the software licence, but with service, as I alluded to before with contract agreement.

Where Kyle Rankin points out the repercussions of adding ethical conditions to the software license, however it should be the right of someone to refuse service, or only contract with others that they find ethical. If a border control department is blocking immigration and a developer does not agree with that action then the developer should not be compelled to contract with the agency. Likewise, for any cake shop owner who does not want to contract with someone with different values. If the action of someone is not deemed socially acceptable it should be left up to society and the market to ‘punish’ or ‘reward’; be that boycotting, bring public awareness to, and social media shaming of a cake shop or buying chocolate from Jeremy’s in support of their socio-political stance regarding International Womens Day.

John Colagioia @jcolag@mastodon.social agrees with the approach of social pressure:

What I want, personally, is stronger copyleft: If you use my code, you need to give me a copy of the project, so that I can publicly shame you…

Balkans clause has the wording ‘discriminate against, or otherwise oppress’. I would argue though that discrimination without aggression is simply preference – and that aggression only occurs in the violation of property rights! If there is no initiation of force then simply refusing to contract or setting terms for contract is a human right. Indeed, forcing someone to contract, against their will is the definition of slavery.

On this point I replied to Balkan with “Free Software is NOT Ethical Software!” Emphasis on the capitalisation. Balkan replied, “That’s a bit sad for free software, no? I mean, being proudly unethical? My reply:

It is not about ‘being proudly unethical” but being proudly nondiscriminatory

エインドゥロイドゥ @anedroid@mstdn.social writes that, “the license is not the right place for moralizing people.”

@aral Mixing software and politics was and is a mistake. I would not put restrictions like that on my software, not because I’m not against discrimination, profiling and other unethical behavior, it’s because the license is not the right place for moralizing people. (Following the “unix philosophy”) license should do one thing: tell whether I can read, modify and execute the program and under what conditions, and do it well.

Returning to social pressure, It would seem that Balkan on some level would agree. In reply to another toot he writes:

Aral Balkan @aral@mastodon.ar.al

@mhp Indeed. We mustn’t discount the power of social pressure. Legal enforcement isn’t the only success mode of such an effort.

Doug Casey, speculator and novelist says:

Peer pressure, social approbation and moral opprobrium, the forces that keep a healthy society orderly, are replaced by regulations enforced by cops and funded by taxes

Doug Casey

The law should be left to the defense of property rights, noting that this includes human rights also as your body is your property – self-ownership. All other values should be left to individual choice and the sphere of public acceptance.

@aral Then it’s not free software anymore. And who should judge on ethics? It’s a somewhat subjective matter.

The last Lombax @vl@snarthelg.no

I agree with the The last Lombax @vl@snarthelg.no. Such a licence that Balkan proposes simply does not meet the definition of Free Software. It should more appropriately be called Ethical Software as it a completely different beast. Once you add such ethical clauses then it is no longer Free Software.

Arne Babenhauserheide @ArneBab@rollenspiel.social

Any ethical clause we add would have to have a huge majority of supporters to avoid enacting divide-and-conquer against ourselves and then being left with Apple.

Arne mentions ‘divide-and-conquer against ourselves’ Therein lies a bigger concern! People are united through the principles of FLOSS. Every bit of extraneous value or cause that is added onto, snuck in, or dubiously justified is another wedge that divides the community. A community in order to remain strong, united and have a positive morale needs to focus on the commonalities – its FLOSS principles. We see division happening in various ways, be that the attempted corruption of Free licenses, or the attachment of SJW Positive Rights in Codes Of Conduct or the promotion of Eco activism above the primary principles of FLOSS in FLOSS organisations.

I would however like to congratulate Balkan for discussing the issue of licenses in an open and friendly manner. Advocates of any cause would do well to take cues. Some FLOSS organisation moderators in response to other pointing out value discrepancies prefer to resort to ad hominids and ban members of their ‘community’. See the latest issue with KDE that I wrote about here and here.

In summary, adding ethical clauses to Free Software is simply not possible. It is incompatible. The non-existence of the concept of property in software belies the ‘right’ to add clauses. An investigation of Negative/Positive Rights reveals that every clause that is added creates restrictions with flow on effects that may create problems. Aggression or oppression is best left to the domain of property rights – the law.

Wei wu wei

Barking Bandicoot