>>From: License-discuss <[email protected]> On >>Behalf Of Gil Yehuda via License-discuss >>Sent: Sunday, March 8, 2020 1:25 PM >>To: Gil Yehuda via License-discuss <[email protected]> >>Cc: Gil Yehuda <[email protected]> >>Subject: Re: [License-discuss] Thoughts on the subject of ethical licenses
The messaging around the ESM also needs improvement. The common example I've seen in these discussions (within the ESM community) is paraphrased in your email: ICE puts kids in cages in concentration camps but they cannot be sued for human rights violations. Palantir uses open source software. ESM seeks to remind contributors to open source packages to connect their ethical introspection about their open source work to Palantir, to ICE, and to putting kids in cages. The movement then seeks ways to protect those contributors from the ethical scar of being an unwilling profiteer of wrongdoing. Thus ethical licensing solves a problem we previously (but inadequately) solved by suggesting that open source authors don't take responsibility for things they can't control such as the ethics of the users of their code. I'd consider expanding the examples to things that are more obvious and take less of a mental stretch. You see, at each point of the chain, you'll get people departing. Some people reading this will ask maybe ICE's policies are legitimate? If they were indeed violations, let them face some international court. Palantir is an analytics company, do they sell cages? How do I know if Palantir is using my software internally (when I can only see the code they publish, not the code they use). etc. Each phrase will get another group of people to drop off and at the end, you'll have a very small following. That's odd in a world full of ethical challenges. Why not pick examples that are more apparent ethical issues, perhaps related to the software itself. This way you are not asking your followers to agree that a particular entity is evil, but that a particular use is. I tend to think the Palantir example is probably the best current test case of this approach, but Gil raises point that came to my mind as well. It’s ICE, not Palantir, that is doing the things that people find to be violative of ethics and human rights. Palantir, as far as I can tell, is providing a tool, to extract and analyze data, to which ICE and many other US Federal Government agencies, put to use. Most of those uses are probably fairly benign or beneficial (for example, it was used to identify organizations that engaged in fraud under the American Recovery and Reinvestment Act). The interesting thing about the U.S. Federal Government (and lots of other governments around the world) is that you have limited rights to take legal action against them, because of the legal principle of sovereign immunity. For example, if you want to sue ICE for copyright infringement – for example, for using software licensed under an Ethical Source license – you may only do so in a specific court, and more importantly for this particular example, you may *not* ask the court to stop ICE from that infringement. See 28 U.S. § 1498 (b). So you might get some money out of ICE for infringement for operating outside of an ethical license, but you wouldn’t be able to get them to stop doing so (at least, based on copyright infringement). In order to enforce this sort of license against Palantir, you’d either need to show they were using the software for something violating human rights, or write the license to say there was some sort of scienter requirement on authors regarding uses to be made by others of their code.
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