Analysis - Sorry, Ms. Ehmke, The “Hippocratic License” Can’t Work
“Sorry, Ms. Ehmke, The “Hippocratic License” Can’t Work” by Bruce Perens criticizes the Hippocratic License by Coraline Ada Ehmke. The License is based on the Hippocratic Oath but adopted into a software system. Perens has been heavily involved in the growth of the FOSS movement and was an integral part of the UN’s adoption of FOSS. In his response, he analyzes inconsistencies and legal impracticalities affiliated with the License.
Summary
Free and Open Source Software is now an integral part of every codebase. Its use includes codebases that the author of the FOSS library may disagree with on moral grounds. The idea of “ethical source software” has existed for a long time, including a package called SPICE from the University of California that prohibited South African police from using it, even though South African police would not need the software. Licenses that discriminate against users, such as the SPICE and Hippocratic Licenses, are not free.
The first criticism is that it violates the purpose of copyright law. There are both criminal and civil mechanisms for fighting harmful behavior. Copyright is not focused on that, instead being used as a way for people to create and derive works. As a result, her blunt and unsophisticated terms are likely to be unenforceable in an American court. A better mechanism would be to improve civil and criminal laws.
Secondly, the statements are contradictory, mainly due to the ambiguity of the “underprivileged group.” As Perens argues, the problem is that anyone being punished is, by definition, an underprivileged group. Culturally, the way that we deal with abuses of punishing other people is by punishing the abusers. Thus, anyone enforcing the License would violate the License. Perens uses the example of someone fighting the Nazis in World War II, whereby the act of punishing the Nazis itself would be considered unethical. The License would be incompatible with a just or well-intentioned. War.
The final primary criticism is the definition of what is ethical behavior or what is harmful. Bruce Perens uses the original translation of the Hippocratic Oath as an example:
I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.
In the United States, there is sufficient support for policies like abortion and assisted suicide as ethical acts that have become an acceptable mainstream position. However, under the original Oath, those are direct violations. Peren argues that ethical behavior changes from person to person. This issue makes it difficult to determine what is ethical, and the definition of causing harm is so broad that it could be argued for almost anything.
The Good
The article did an outstanding job of providing context for the argument. Though it was a new license, the inclusion of the discussion of SPICE set a historical precedent. It also made it clear why Perens is qualified to have an opinion on the topic, namely his role in determining if the software in Debian is free or non-free. I had not heard of the SPICE issue and thought it was an exciting and helpful piece of context that set up the article well.
Secondly, he does an excellent job of discussing the more significant legal issues. In other words, what would prevent this License from being enforced in a court of law? He started the analysis by providing the direct License, which helps set the context. The reader is then prepared to understand the problems with examples in the analysis. Based on how he wrote it, the reader deeply understands the flaws of such a poorly written license.
Lastly, I like that he introduces the questions of what harmful and ethical behaviors are. I think that most people who read the article would have to question whether their opinions are universally ethical or not. I think that a lot of people assume that their opinions are ethical and have never been in a position of having to defend them. Especially with modern political rhetoric, I expect that a lot of people would assume that their political beliefs do not cause harm to underprivileged people. This is because said language has been heavily politicized and is at the core of certain political platforms. Yet, for those people, they would have to think about whether their political rhetoric is legally defensible. I think that the abortion, birth control, and death with dignity argument probably is the most effective example to deter many would-be supporters from actually supporting the License.
The Bad
I like that he evaluated the License without comparing it against FOSS licenses since it is very clearly not a FOSS license. I do wish, however, that he went into an analysis of why the four essential freedoms of free software exist. Even if you do not care about whether a license is “free” or not, I think that the cultural background of how FOSS evolved could push people away from this License. Freedom Zero means that an author would have to have their code be used in ways that they disagree with, and I think that a lot of people are uncomfortable with that. Exploring the cultural reasons for the four freedoms would be convincing for the article.
I also wish that he showed a couple of other examples of ethical source licensing. I like the inclusion of the SPICE license. I am not certain, but I imagine that other licenses have similarly tried to get the same result, and I imagine many of them have the same flaws. It would’ve been interesting to see additional examples and their failures. I do respect the narrow focus that he tried to keep.
Lastly, I like the comparison of the modern and classical Hippocratic Oath. However, I wish he had discussed the ethics problem changing over time. The Oath had evolved so much over its history, that things that were explicitly prohibited in the past are now medically mainstream. One of the most significant flaws that I see with ethical source is not just the person-to-person change of ethics but how ethics can evolve.
Review
I rate this article 5/5. I think that it was very well written and focused on getting his argument across. I had difficulty identifying problems with the post, and most of my criticisms likely would have detracted from the overall argument. In terms of a rebuttal, I think that it was highly effective and convinced me of the flaws with the Hippocratic License.
Questions
- How would the License address shifts in ethics over time?
- Who would determine if a use case is in violation?
- How would the license work with derived libraries? If a library is used in many projects, and one customer of one project uses it for violative reasons, would lots of people lose access to it?
- Is there a way that the contradictions could be fixed?