After months of drafting, tinkering, and editing, CAL, in partnership with the Organization for Ethical Source (OES), has launched Hippocratic License 3.0 (HL 3.0), an ethical open source software license designed to: (1) offer software developers a license that clearly defines what kind of behavior a potential licensee must adhere to, by basing the ethical standards section of HL 3.0 in international human rights norms; (2) extend software developers the ability to add additional ethical standards clauses to further champion a variety of specific human rights causes; (3) provide software developers the most enforceable ethical open software license to date; and (4) create an opportunity for victims of human rights violations to seek legal remedy through a private right of action.
Before diving into HL 3.0, I want to acknowledge two individuals who made this project possible: Aaron Williamson and CAL co-founder Chris Byrnes. Their expertise, wisdom, and guidance was instrumental, not just in the development of HL 3.0, but in my own development as an IP attorney. Additionally, this project is a culmination of contributions from members of OES and CAL staff, not to mention the monumental amount of work in ethical licensure that has been going on for years within the ethical open source community.
This blog dives into the goals of Hippocratic License 3.0 and the need for its development. It begins by describing the current slate of ethical licenses and how that informed the development of the Ethical Standards section, including the modular approach. It then explains the added emphasis on enforceability that went into the creation of HL 3.0. Finally, it discusses HL 3.0’s mechanism to create private rights of action for victims of human rights abuses.
Ethical Standards Grounded in Human Rights Norms
Today, open source software is nearly impossible to avoid, with so much of the technology we use everyday either using or being derived from open source software. This is true for multinational corporations and governments as well, and software developers are discovering how their work is impacting the world around them -- sometimes negatively through uses such as cloud computing designed to benefit the fossil fuel industry, military contracts for weapons development, government-sponsored censorship software, and even by U.S. Immigration and Customs Enforcement (ICE). This discovery has inspired many in the open source community to join the ethical open source movement and take control of how their work is used going forward. That control starts with ethical licensing.
HL 3.0 is by no means the first or only ethical license. Open source software licenses have been around for nearly half a century and ethical software licensing has grown quickly over the past five years. However, the most legally robust ethical licenses often had very narrow human rights focuses, while ethical licenses that attempted to cover a broader range of human rights issues experimented in a manner that potentially risked enforceability of the license.
It was that experimentation, the attempt to establish a wide array of human rights protections, that was often the most criticized portion of ethical licensing. All too often, naysayers would quickly shout that ethics are too subjective and cannot be articulated, let alone regulated, in a license. However, this argument ignores the rich history of the law and its constant governing of behavior, not just through statutes but also through systems of common law.
For starters, as an attorney my profession has rules of professional conduct, a set of ethical rules governing all attorneys. I am licensed to practice law in Illinois. In paragraph nine of the preamble of the Illinois Rules of Professional Conduct, the Illinois Supreme Court states that “[v]irtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.” Attorneys are not unique in governing the ethics of their profession either. The Hippocratic Oath, which embodies the original ideals of the first Hippocratic License and its predecessors, is “an oath embodying a code of medical ethics usually taken by those about to begin medical practice.” Additionally, we see ethics in business, journalism, and nearly any professional environment. These rules, while not always black and white, are nevertheless discussed, modified, and enforced.
But the codifying of ethics is not limited to professionals. We see it in our criminal and civil statutes; in homeowners association agreements, governing issues such as playing loud music late at night; and in commercial settings where non-competition, non-solicitation, and non-disclosure agreements are commonplace. All of these, in some way, shape, or form dictate what is and, more importantly, what is not ethical behavior - behavior that any one individual may find acceptable but is not acceptable to the collective.
So if there are systems in place that have successfully established rules that articulate what is considered ethical behavior, what prevents software developers from doing so as well? Why is it impossible for software developers to codify a set of standards which, if violated, would constitute unethical behavior? And if it is possible (which, of course, it is), then why shouldn’t a creator be allowed to dictate the uses of their creation? It is that very question that sparked the ethical open source movement.
In order to address the needs of the ethical open source movement, HL 3.0 set out to codify an objective set of ethical standards by utilizing already accepted human rights norms in its licensing language. HL 3.0’s Ethical Standards section, which outlines what behavior licensees shall and shall not engage in, is primarily derived from the United Nations Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social, and Cultural Rights. We selected these human rights declarations and treaties as the basis for many of the ethical standards because the international community largely agrees upon their meanings and many of them have overlapping language related to human rights norms. While there may never be universal agreement about what is or is not ethical, the clauses listed in the Ethical Standards section of HL 3.0, are about as clear, robust, and broad as you will find in any ethical license.
A Modular Approach
In addition to providing a clear list of ethical standards, HL 3.0 was also designed to offer software developers an opportunity to champion causes that mattered to them. This is accomplished by providing software developers with a number of additional clauses they can add to the Ethical Standards section of HL 3.0, called modules. These modules cover a wide variety of human rights abuses, such as additional environmental protections; supporting the Boycott, Divestment and Sanctions movement (a movement centered around boycotting organizations which profit from Israel’s illegal occupation of and establishing settlements on Palestenian land); prohibiting the use of software by those profiting from goods produced in the Xinjiang Uygur Autonomous Region (the region where the Chinese government has been accused of ethnically cleansing, establishing re-education camps, and enslaving the primarily Uygur population - a largely Muslim ethnic minority in China’s Xinjiang region); and requiring clear and transparent supply chain information (since many multi-national corporations often claim ethical supply chain practices despite skirting liability for human rights abuses under the guise that they were unaware of actions by third parties within their supply chains).
Not only does this modular approach allow software developers and maintainers the opportunity to focus on causes that are of particular importance to them, but it also allows HL 3.0 a natural ability to grow, by cultivating the opinions of developers to continue to discuss, edit, and adopt additional modules in this ecosystem.
Eye on Enforceability
As discussed above, the most enforceable ethical licenses often focused on narrow human rights abuses. Thus, there was space in the current slate of ethical licenses for a license with broad human rights protections and a greater likelihood of enforcement. While enforceability is a question that can only truly be answered through litigation, throughout the development of HL 3.0, enforceability was a priority and it informed the drafting of this license at every turn. This included adding clear notice provisions, termination provisions, and a section explicitly outlining which portions of the license were conditions of the rights granted to licensees under HL 3.0, as well as taking a different approach to ethical standards than its predecessor, Hippocratic License 2.1. Rather than relying on source material solely intended for governments, HL 3.0 alters or omits certain language so that the ethical standards listed in HL 3.0 are applicable to governments, corporations, and other individuals or entities normally within the scope of potential licensees – while still citing to the source material.
While there are certainly aspects of HL 3.0 that are more experimental than other open source software licenses -- and even ethical licenses -- the arguments raised by critics are seldom unique to ethical licensing. Open source software licensing already pushes the traditional understanding of copyright law, which normally covers static works, or works that tend not to change over time, such as books, pieces of art, or songs. However, software has a dynamic, almost living, element to it. Entire operating systems have been built from open source projects. Furthermore, software licenses, especially open source software licenses, have not been heavily litigated, leaving many open questions regarding what exactly the outer limits of software licensing are. Still, to the extent possible without litigation, we believe in HL 3.0’s enforceability.
Providing a Path for Relief
Perhaps the most unique element of HL 3.0 is its prioritization of victims of human rights abuses. While many ethical licenses offer terms for termination of the license due to a violation of its ethical standards, they seldom offer relief to those directly impacted by the violation.
Section 4 of Hippocratic License 3.0, titled Supply Chain Impacted Parties, does just that by creating a private right of action for victims of human rights abuses. This is possible by expanding upon an aspect of tort law called negligence. Traditionally, if someone were to sue another person for negligence, they would have to prove that: 1) the defendant (the party being sued) owed a legal duty to the plaintiff (the person bringing the lawsuit); 2) the defendant breached that duty; 3) the plaintiff was harmed; and 4) the harm was the result of the defendant’s breach of its duty. HL 3.0 requires a licensee to voluntarily accept a duty of care to those directly impacted by any of the licensee’s supply chain. Voluntarily accepting a duty of care is one of the ways in which a legally recognized duty can be established. This duty of care is to not violate any of the conditions in the Ethical Standards section. If the licensee, or an entity within its supply chain (as detailed in the license) violates a provision of the Ethical Standards section, the licensee acknowledges that those directly impacted by the violation have a private right of action against the licensee.
This mechanism to create a private right of action through an expanded duty of care model, while not unique to contracts, is unique to ethical open source licenses and offers additional protections to those most vulnerable to unethical corporate and government behavior. Not only does this mechanism help prevent violations of ethical standards, but it also puts the focus on those who need it most.
Moving Forward
CAL and OES are excited about the launch of Hippocratic License 3.0. We hope that software developers and maintainers see this license and feel confident that their views, values, and morals are encompassed in it and that they can feel confident in attaching HL 3.0 to their projects. To that end, CAL is offering free legal services to anyone wishing to learn more about HL 3.0. They can do so by contacting me, Sameeul Haque, at sameeul@corpaccountabilitylab.org. CAL and OES are here for you to learn about ethical software licensing, and software licensing generally. We also want potential licensees to see the benefits of accepting these kinds of licenses and the confidence it will provide software developers working with them. Finally, we want to continue to empower software developers to take control over the use of their own creations and will continue to draft modules, create educational tools, and continue to build upon the work of the ethical open source movement.
Sameeul Haque is a Staff Attorney at Corporate Accountability Lab.
