[License-discuss] Ethical open source licensing - Persona non Grata Preamble

[Eric Schultz]

Over the last few weeks, I've been exploring ideas around ways in which
licensing could be used for dealing with unethical behavior in FOSS.  To be
clear, I am not referring to what is called "ethical licensing" which
associates field of use restrictions with ethics, a position I do not share
and strongly oppose for a multitude of reasons. Instead I've been thinking
through ways in which licensing and ethical FOSS community policies can
interact in order to discourage and shame morally corrupt users. I'm not
sure licensing is the proper place to address this issue but at the same
time, it has powerful features that are valuable in what should be our
common goal of social justice. I've thought through two possibilities; as
they are different, I think it makes sense to discuss them separately.

Before beginning, I strongly discourage anyone from using these ideas with
out talking to a lawyer; licenses are complex tools and the law is not kind
to those who violate it, particularly marginalized people. I also think a
far more diverse forum than this mailing list or Twitter are the proper
places to address these issues. And as always, I am not a lawyer.

Anyways, now that that is out of the way, my first idea is called the
Persona non Grata Preamble. I'll describe the idea first and follow with a
list of open questions I have about the idea.

Description:
The idea for the Persona non Grata Preamble came from the preamble in the
GPL families of license and ideas I have around excluding bad actors from
communities using an advanced Code of Conduct. In this idea, a community
would add a preamble to an existing license. In the preamble, the license
would include statements from the community about their values, who is not
welcome in their community, such as fascists, ICE collaborators,
organizations who take but never give back, oil and gas companies and
others. In more aggressive cases, the preamble could list the bad actors
and even make statements about why they are excluded from the community.
(This is where the name Persona non Grata Preamble comes from). As an
example, consider the following Preamble:
---
The PROJECT_NAME community values human rights and discourages human rights
violators from using our software and, at our sole discretion, excludes
such violators and their employees from our community. At writing, we
exclude the following organizations:

Amazon - for collaboration with ICE
BP - assisting in climate destruction

These organizations and their employees are not welcome to participate in
PROJECT_NAME community. We intend to reject any issue submissions, pull
requests and support requests from these organizations and their employees
and ban their participation in any project forums and conferences.
---
Assuming that the license otherwise requires copyright notices be
maintained in redistribution, the preamble, as part of the license cannot
be removed in redistributions of the source code.If a listed company wants
to redistribute this software (or in the case of network copyleft, makes it
available to network users), they are obligated to include the shaming will
all copies of the software. Every evil org who wants to redistribute the
code would be required to distribute a statement shaming them. Notably,
this feature could not be guaranteed with adding a simple file to the
source repository, in such a case, the user could remove the repository. In
the case of a required copyright statement, I don't believe they can.

While this may not stop some organizations, some organizations will choose
not to want to deal with something that embarassing. At the very least, it
makes the community's statement of opprobrium of an organization in one of
the strongest places possible.

As is relevant to this list, this preamble, while shaming and discouraging
evil orgs, would be written in a way which does not add any binding
obligations on the community or users. By doing so, it fully complies with
the OSD and FSD. Additionally, it would be feasible for decide whether a
violation occurred: if the copyright header is missing, the organization is
in violation. While enforcement is never easy this is at least
straightforward to identify violators.

As an additional quality, many FOSS licenses allow relicensing in all cases
or when no additional restrictions are added. In this case, I suspect that
the preamble would not consist of an additional restriction for those
purposes.
--
Open questions I have:

1. Under any situation, the preamble be removable by a user? Based on my
understanding, I think not but IANAL. Perhaps there needs to be a way to
phrase it so it becomes part of the license as a whole
2. How does the preamble need to be listed in order to make clear that it
provides no additional obligations on the user or the community?
3. How could the community avoid liability for libel when listing why the
bad actors are persona non grata?
4. Would downstream users have liability for libel when distributing the
software for the persona non grata listing?
5. If listing the reason for an org being persona non grata is too risky
legally, could a more blunt listing like: FUCK ORG_NAME address the problem
by avoiding any statement of fact?
6. What license could software be under where relicensing with the preamble
wouldn't be allowed? Of the few I looked at, the rules in the GPLv3 family
of licenses seem to be somewhat questionable.
7. Is the net-benefit sufficient to any additional risk for marginalized
people? This list absolutely cannot decide this but it's relevant enough to
need to discuss this. If this mechanism becomes common, there is a distinct
risk that marginalized people could be added to these persona non grata
lists. In cases of harassment, legally or otherwise, this would lead to
these individuals being put into a document where they could not easily be
removed. As an examples, queer people particularly in countries with
anti-queer laws, or sexual assault survivors. Undoubtedly, these lists
could be added to licenses right now. But is using this publicly going to
lead to evil people deciding to use this for harassment campaigns? In my
privileged position, I'm not remotely qualified to decide this so I would
strongly recommend a diverse set of marginalized people around the world be
consulted before moving forward.

Eric
-- 
Eric Schultz, Developer and FOSS Advocate
wwahammy.com
eric at wwahammy.com
@wwahammy
Pronouns: He/his/him
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