Open source pioneer Bruce Perens has written a close-minded, condescending, fallacy-laden blog post defending something that is not even under attack, namely the definition of open source license he originally penned over 20 years ago.
Why is this worth mentioning, you ask?
A growing number of us are trying to tilt the global software playing field toward justice. I believe that one powerful way this can be done is by adding an ethical requirement to the licenses under which software is released.
This will prevent human rights-destroying people and organizations from building upon the shoulders of giants. It would force them to either (1) avoid benefiting from the world of FOSS altogether; (2) use outdated and potentially insecure open source software; or (3) secretly violate these software licenses and expose oneself, one's company, and/or one's associates to legal risk.
No matter which fork they take, we have succeeded in peacefully creating problems for those who seek to harm our fellow human beings.
Guess who doesn't want that to be accomplished?! That's right -- people who believe that a quasi-nihilist, fundamentalist approach to software licenses must prevail.
An excerpt from his aforementioned post:
I first encountered a license like this about 25 years ago, attached to the Berkeley SPICE software by the University of California. That license prevented the use of the software by the Police of South Africa. By the time I encountered the license, Apartheid was long over and there were Black Police in South Africa. But they were still not allowed to use the SPICE software.
Right off the bat Bruce straw-mans the "pro-human software license" idea by assuming that all such licenses must (1) name a specific organization that cannot use it and (2) provide no means by which a named entity can get off The List.
Both of these assumptions are false.
We can start with the name. The Hippocratic license, named after an oath shortened as “do no harm”. Unfortunately, what is “harm” just isn’t that simple.
More straw man nonsense. The Hippocratic License in fact does not say, "users of this software must agree to do no harm", leaving the term "harm" undefined. The latest version of this license actually says,
The software may not be used by anyone for systems or activities that actively and knowingly endanger, harm, or otherwise threaten the physical, mental, economic, or general well-being of other individuals or groups, in violation of the United Nations Universal Declaration of Human Rights (https://www.un.org/en/universal-declaration-human-rights/).
Much clearer than Bruce pretends!
Speaking of the names of things, the name of Bruce's post, "Sorry, Ms. Ehmke, The “Hippocratic License” Can’t Work", shows us that Bruce is so close-minded that he actually believes that just because half-assed attempts to inject some ethics into software licenses 25 years ago didn't work, better attempts somehow "can't" work.
In other news: mobile phones didn't take off in 1982, therefore they can't have worked 25 years later, in 2007 -- the year the iPhone came out.
Bruce wrote another pathetic post opposing ethical software licenses!
The idea behind this was that Freedom meant Freedom for everyone, not just Freedom for people we approved of.
Stop demanding that we avoid making ethical judgements. The very concept of a law requires that we draw distinctions between permissible behavior and impermissible behavior. Should we get rid of all laws because they may turn out to be ambiguous? Let's not make the perfect the enemy of the good.
Bruce then argues against the feasibility of ethics-laden licenses, especially from an enforcement persective, committing the same fallacy over and over again in rapid succession:
Real consent is indicated by signing the contract, but that doesn’t ever happen with this sort of license. Instead, there is a lesser indication of consent by the action of using, distributing, or modifying the software.
...consider enforcing the Vaccine License: imagine explaining to a judge that someone consented to be injected with vaccine by using a piece of software, and that they become copyright infringers by failing to get their shots. Having the court honor this bizzare argument seems unlikely.
Since none of these licenses routinely require any royalties, the likely payment would be zero.
The exact same arguments could be used against Bruce's beloved OSI-compatible licenses that have proven so successful! What the hell is he talking about?
In fact, this last excerpt is a better argument against OSI-compatible licenses than against ethics-compatible "non-free" licenses that I would love to see. After all, why should only open source-ish software be infused with ethics? I think it would be great if an ethical company (perhaps a Benefit Corporation) released its proprietary software under a license that forbade human rights abuses?
It may be hard for people in the US to sue a Saudi prince, but what if a Hippocratic-esque software license were created that were more "viral" than the GPL -- so viral, in fact, that it were to also limit the actions of US companies doing business with a Saudi prince? Is that feasible? I hope so!
A trend you may notice with Bruce's arguments is that nearly every argument he makes against having ethics in software could also be made against having laws in general.
Who is going to finance these cases? This is not a frivolous question.
Laws are expensive to enforce! You need judges, juries, police officers... Let's save some money and just be nihilists.
Sometimes, organizations like EFF will take on a case pro-bono, without charge, for the public good.
Good point -- good enough to defeat your previous point.
I repeat -- let's not make the perfect the enemy of the good. Imperfect laws are all we have.
What This Is Really About
At base, I honestly believe that Bruce Perens is fighting tooth and nail to oppose the addition of ethics and ethical requirements into software licenses because he knows that this would make his own contributions to the concept of "open source" seem less important, or even unethical.
Frankly, I don't think that we should expect ethics-compatible software licenses to be OSI-compatible in the first place, in which case Bruce is really barking up the wrong tree.
Open source software, be it BSD- or GPL-flavored, is fundamentally about neutrality and allowing everyone to use software released under such licenses, provided that they abide by some basic stipulations (e.g., they must provide attribution to the author(s) of the code they are using). What I am interested in is quite purposely not neutral, and therefore likely not compatible with the FOSS fundamentalists at OSI -- fine with me!
Personally, I may continue to release small, super-generic libraries under OSI-compatible licenses, but now that I am aware of the the Hippocratic License, the more powerful software I write will never be BSD/GPL/AGPL/etc-licensed again -- for doing so would consciously empower the cruel human rights violators of the world. And who could be in favor of that?
(Answer: Bruce Perens and other OSI fundamentalists.)