>> law, technology, and the space between

All content by Kyle E. Mitchell, who is not your lawyer.

You can subscribe via RSS/Atom or e-mail and browse other blogs.

Our Ethics, Not Yoursin defense of Seth Vargo and morality-first licenses

I like Matt Asay, but his open source is very different from mine. In a recent post, Matt offers a bald rebuke of developers yanking code or changing license terms to protest organizations doing things they abhor, like the United States’ Immigrations and Customers Enforcement. But that rebuke only stings if you already agree that Matt Asay’s ethic trumps yours.

When Matt writes:

You cannot block objectionable uses of your software and still have it remain open source.

He is wrong for any meaning of “open source” but his own.

What we now call open source began with licenses that blocked objectionable uses of software: uses in closed, proprietary projects that abused users. Ethics drove that objection, and the objectors objected in self-consciously ethical terms. Quoth RMS:

I make my code available for use in free software, and not for use in proprietary software, in order to encourage other people who write software to make it free as well. I figure that since proprietary software developers use copyright to stop us from sharing, we cooperators can use copyright to give other cooperators an advantage of their own: they can use our code.

Morality-based licensing isn’t the proprietary licensing tradition, as Matt claims. It was the original inspiration for the seminal free and open license, the GNU General Public License. The overwhelming, dominant theme of proprietary licensing is business advantage, not ethical piety.

When Matt writes:

Open use is the price we pay for open source

He is wrong. Again: unless you happen to share his absolute-libertarian view of “open source” meaning totally unrestricted use.

Nothing about choosing a license that expresses your ethics stops you from sharing code online, accepting contributions, distributing with very low friction to end users, leveraging the work of others, or having your work leveraged by them in turn. The GPL proved that decades ago. These days, the gatekeepers who insist on one kind of absolutism or another, from the Free Software Foundation to the Open Source Initiative to some Linux distributions, matter less and less.

It was never true that good, collaborative software had to come from a place of shared software-freedom activism, as the FSF faithful once preached. It isn’t any more true that good, collaborative software has to come from a place of shared techno-libertarian absolutism, as techno-libertarian absolutists sometimes claim. As each new stripe of free-open activists has learned, there is no obligation to accept the practical benefits of software tools or techniques only in a package with their ethics, their philosophy, or their politics.

To give Matt due credit, he’s utterly transparent about the tautology under his criticisms. Why does openness require an utter lack of ethical restrictions?

Why? Because … open source.

So when Matt writes:

Now imagine if every developer channeled their inner Vargo and started pulling their code because they don’t like this or that organization—it would completely dismantle the open source world that so many of us depend upon.


We can’t control outcomes and keep our code open source. We can only contribute the best code we can and hope that, on balance, much more good comes of it than bad. It’s the price of openness, and it’s worth paying.

He is partly right, in his own tautological terms.

If “open source” means the strict equality of “open” and “free of ethical restriction”, then more and more developers choosing licenses and taking actions that don’t align threaten the image and self-image of “open source” as a uniform ethical blank zone. Absolutists could no longer credibly claim that most folks hacking code online agree with them, explicitly or implicitly, or that the “community” is more than a community of common practice, but also a community of common belief—their belief.

This has happened before. The same kind of shift imposed humility on those for whom “free software” meant the strict equality of “free” and “protects software freedom for users”. As it turned out, a lot of free software hackers were in it for free-of-charge rather than freedom, and for developer rather than user freedom at that.

I’m constantly reminded of institutional maneuvers to prevent former Catholics removing themselves from church rolls in the wake of mounting scandals. Defaults matter. When a default favors an incumbent, practically or rhetorically, that default will be defended.

In the past, stoking fear of law, then monopolizing access to scarce legal talent, allowed specific camps—RMS-style counterculture creatures, then ESR-style techno-libertarians—to limit developer choice to licenses those camps could take credit for in the mounting partisan popularity contest. That manipulation was expedient, intentional or not, but also simply wrong, as practiced. As an attorney, it disgusts me. Talking others out of the benefit of law and counsel, then beating on or coopting them en masse, stoops low. Very low.

The “don’t write your own license” mantra, extending “license proliferation” to prohibit even new licenses saying genuinely new things, and the “crayon license” pejorative all talked hackers down from taking their legal power into their own hands. This is what I mean when I say the hood of the license machine is welded shut. It’s what I work to cure by popularizing the Flipped Form concept, by encouraging hackers to put their hands on license language, and by publishing step-by-step guides to bootstrapping new software communities of shared concern. I support legal autonomy when I personally subsidize the drafting of licenses for new needs and schools of thought, like Parity and Prosperity.

If you lack a project that enables you to contribute online without suppressing your conscience, you should be able to make your own. Incumbent ideologies shouldn’t pressure you into subjugating your moral view to theirs, through “license compatibility”, permissive-only policies, or lack of license availability, just because they got a lawyer first.

If you lack a good option to express your ethics through the one channel users are actually likely to check—license terms—you should be able to write a license, or to have one written or proofed for you. Incumbent institutions shouldn’t pressure you into letting them speak for you in license terms, instead of helping you to speak for yourself.

Of course, all of that goes for party-line software-freedom and techno-libertarian true believers, too. Each view should have its tools, and argue their virtues on their merits. But if you want to monopolize “free” or “open” or whatever comes next, to paper over its diversity of views and experiences with a big picture of your own, be prepared to make compelling, forward looking arguments. There’s no ideological birthright to lean back on.

Your thoughts and feedback are always welcome by e-mail.

back to topedit on GitHubrevision history