[License-discuss] Thoughts on the subject of ethical licenses

[VanL]

Hello Coraline,

First, it is good that you are here on the mailing list and interacting
with some of the others who are in this space.

I wanted to comment on just two aspects of the below:

On Sun, Mar 8, 2020 at 12:34 PM Coraline Ada Ehmke <coraline at idolhands.com>
wrote:

> On Mar 4, 2020, at 9:13 AM, Drew DeVault <sir at cmpwn.com> wrote:
>
> 1. Laws enforce themselves
>
> The Hippocratic License, for example, includes the following:
>
> The Software shall not be used by any person or entity 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 (the “Human Rights Laws”).[...]
>
> I disagree on this point, which I see being made quite often (usually it’s
> more along the lines of “terrorists don’t care about licenses”. The
> activities that ICE engages in at its concentration camps are illegal but
> still being carried out by the government, and ICE cannot be sued for human
> rights violations. But to return to the example of Palantir: do you think
> their lawyers are going to even ENTERTAIN the notion of using software with
> an ethical license? Being sued for license violation is the least of their
> concerns. It would be a public relations disaster if it was discovered that
> they were using ethical source licensed software to support ICE.
>

The issue is not "terrorists don't care about licenses," it is that banning
illegality is not generally considered to be an enforceable term in a
contract/license. Illegal things are already illegal, so making them
illegal *and* a breach of contract does not do anything extra.

Further, you make the assertion that "[t]he activities that ICE engages in
at its concentration camps are illegal but still being carried out by the
government." This is not a correct position.

Assume the Hippocratic License was out, and software under that license was
still being used by Palantir to provide services to ICE. I'm simplifying,
but here are a few things that I am not sure have been considered:

- Absent clear contradiction of an existing statute, illegality has not
been established. It may be "obvious" to you, but illegality is not
established until the courts evaluate the particular activities accused
are, in fact, against the law.
- Because the government defines legality, illegality is typically
considered to be outside the scope of government action. Instead,
individuals go beyond what is allowed and direct their organizations to do
things that are illegal.
- If the courts were to decide that the actions being undertaken by ICE
were "illegal," it would immediately enjoin the government from taking
those actions going forward. This means that the possibly-illegal action
would be stopped as soon as it was found to in fact be "illegal."
- Even if the things that are happening with ICE are eventually deemed to
be "illegal," that would usually still not implicate contractors like
Palantir that are enabling the behavior. Palantir sells a product and
service that is *legal,* absent specific legislation otherwise, and the use
that ICE put it to would not make the product itself illegal.

In short, nothing that I have seen so far would actually prohibit the use
of Hippocratic-licensed code by Palantir or ICE.



> The OSD does not define open source, it defines the characteristics of
> open source licenses. This is a critical distinction. Not meaning this at
> all in an ageist way (I’m pushing 50 myself), the so-called “GitHub
> generation” does not, I believe, think of open source from a licensing
> perspective. The way the majority of them think of open source is
> experiential: “I am developing code in public, accepting contributions from
> other developers across the world, in the hopes that it will be useful to
> someone else.” For better or worse, for many people a license is just a
> drop-down you select from on a GitHub form when you create a new repo.
>

If I were being cynical, I would say that people's view of open source as
purely experiential will last exactly until such a view gets them into
legal hot water.

2) Through this mechanism, I would advocate for revising the language
> around “field of endeavor” to close the extraordinary ethical loophole of
> “evil people deserve freedom, too.” (I can’t think of a single example in
> the modern world where “evil people” enjoy the same full set of rights and
> privileges as the rest of a community.)
>

This assertion doesn't seem correct to me. In fact, most of the fundamental
freedoms in the Bill of Rights (to adopt a US-centric perspective for a
second) are precisely the type of rights where we defend the ability of
others to say and do things that we vehemently disagree with, because we
believe that the basic freedoms should not be curtailed. I'll refer you to this
link
<https://www.inquirer.com/philly/opinion/commentary/charlottesville-nazis-freedom-of-speech-aclu-skokie-20180820.html>
where you can see that principled people can and do defend the rights of
"evil people."

Thanks,
Van
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