Canada: Ethical Open Source: Is The World Ready?

Last Updated: October 28 2019
Article by Lisa R. Lifshitz

Given its incredible popularity in the marketplace, there is no question that many software developers (and their respective companies) today see great value in using software that is subject to open source licenses. Users focus on the advantages to be had by gaining access, usually at no or minimal charge, to the software’s source code and to the thriving open source community supporting such projects.

Powered by a worldwide community supporting the code base, open source code is generally perceived to be more reliable, robust and flexible than so-called proprietary software, with increased transparency leading to better code stability, faster bug fixes, and more frequent updates and enhancements.

Historically the question of ethics and open source software (OSS) has mainly focussed on the goal of obtaining and guaranteeing certain “software freedoms,” namely the freedom to use, study, share and modify the software (as exemplified by the Free Software Definition and copyleft licenses such as the GPL family), and to ensure that derivative works were distributed under the same license terms to end “predatory vendor lock-in.”

Most users of OSS have been content to rely upon OSS licenses (many less restrictive than the GPL), that are approved and maintained for the ‘good of the community’ by the Open Source Initiative (OSI), a California-based public benefit company that sees itself as the steward of the cause. OSI is the creator (and proponent) of the Open Source Definition, a detailed document that sets out the central tenants of certain OSS philosophy —including requirements of free distribution, distribution of source code, integrity of the author’s source code, code not specific to a product, license to be technology-neutral, etc. —governing which OSS licenses can be labeled with the open-source certification mark, the OSI “seal of approval.”

However, the open source status quo is increasingly being challenged by a number of developers who are unsatisfied with the current state of ethics in open source. These individuals advocate a more activist approach to ethics by creating new OSS licenses that contain deliberate moral clauses that most certainly contravene the current Open Source Definition. Three such licenses will be briefly discussed, followed by analysis as to likely next steps.

1. The Hippocratic License. This license was created by Coraline Ada Ehmke, author of the Contributor Covenant, an open source code of conduct created in 2014 that has been adopted by over 200,000 open source projects and organizations, including Linux and Salesforce OSS. More recently Ms. Ehmke founded the Ethical Source Movement, creating the Ethical Source Definition. Released on September 22nd, the Hippocratic License is a modification of the popular MIT OSS license, freely acknowledging that that it is “derived from the MIT License, as amended to limit the impact of the unethical use of open source software.”

In additional to the usual terms, the license contains a new clause that states that “The software may not be used by individuals, corporations, governments, or other groups for systems or activities that actively and knowingly endanger, harm, or otherwise threaten the physical, mental, economic, or general well-being of individuals or groups in violation of the United Nations Universal Declaration of Human Rights.”

On September 23rd the OSI responded (via Twitter) less than glowingly to the release of the Hippocratic License, complaining that the “intro to the Hippocratic Licence might lead some to believe the license is an Open Source Software licence, and software distributed under the Hippocratic Licence is Open Source Software. As neither is true, we ask you to please modify the language to remove confusion.” On the same day, OSI co-founder Bruce Perens wrote a detailed blog post that attacked the license as simplistic and contradictory containing terms “simply far more than could be enforced in a copyright license.” Spirited dialogue has ensued involving Ehmke and other open source community users, and the license is pending further legal review.

2. The Anti-996 License. First published in April 2019 by J.D, University of Illinois, College of Law and Suji Yan, CEO of Dimension, the "Anti 996" License Version 1.0 is another variation of the MIT OSS license, this time requiring users of the project's software to comply with local labour laws as well as International Labour Organization standards (including the right for workers to collectively bargain and a ban on forced labour).

The name ties into the so-called “Anti-996 Movement” which references the 9 am to 9 pm, six days a week work schedule prevalent in China’s technology and other industries. Specifically, Section 2 of the license requires individuals or legal entities to “strictly comply with all applicable laws, regulations, rules and standards of the jurisdiction relating to labor and employment where the individual is physically located or where the individual was born or naturalized; or where the legal entity is registered or is operating (whichever is stricter). In case that the jurisdiction has no such laws, regulations, rules and standards or its laws, regulations, rules and standards are unenforceable, the individual or the legal entity are required to comply with Core International Labor Standards.”

Section 3 of the license prohibits individuals or legal entities to induce, suggest or force its employees, whether full-time or part-time, or its independent contractors, in any methods, to agree in oral or written form, to “directly or indirectly restrict, weaken or relinquish his or her rights or remedies under such laws, regulations, rules and standards relating to labor and employment as mentioned above, no matter whether such written or oral agreements are enforceable under the laws of the said jurisdiction.” The license also prohibits employees or independent contractors from reporting or complaining to the copyright holder or relevant authorities monitoring the compliance of the license about its violations of the said license.

While the code repository and software collaboration platform GitHub quickly published lists of companies requiring its employees to work these draconian hours, the organization now also hosts a “955 List” of companies where workers are not required to work overtime, as well as the more than 100 projects that have adopted the Anti-996 License to date.

3. The “Just World License” (or Do No Harm License). The preamble for this OSS license states that the Just World License is for developers who agree in general with the principles of open source software, but are “uncomfortable with their software being used as part of efforts to destroy lives, our environment and our future…In short, developers who use this license want their code to contribute to a just world for all.” Released in 2018 as the Contributor Covenant (pre 1.0), available at, this license is based on the BSD 3-clause license, but with specific exclusions for using licensed code to promote or profit from: (i) violence, hate and division; (ii) environmental destruction; (iii) abuse of human rights; and (iv) the destruction of people’s physical and mental health.

Accordingly, the scope of the prohibitions are very broad and detailed; for example, the software cannot be used by any organisation, website, product or service that lobbies for, promotes, or derives a majority of income from actions that support or contribute to sex and other human trafficking, slavery, indentured servitude, gambling, tobacco, adversely addictive behaviours, nuclear energy, warfare, weapons manufacturing, war crimes, violence (except when required to protect public safety), burning of forests, deforestation, hate speech or discrimination based on age, gender, gender identity, race, sexuality, religion, nationality. Companies or individuals that lobby against, or derive a majority of their income from actions that discourage or frustrate peace, access to the rights set out in the Universal Declaration of Human Rights and the Convention on the Rights of the Child, peaceful assembly and association (including worker associations), a safe environment or action to curtail the use of fossil fuels or prevent climate change, or democratic processes are also precluded from using the software.

There are currently no projects on GitHub listing the use of this license and the accompanying note states the “License is currently in draft and should be considered not stable” but that the developers are “working towards a version 1 of the license.”

The Value of Ethical OSS Licenses and Next Steps. Support for so-called ethical OSS licenses is not universal amongst the OSS community and it not surprising that the recent release of the Hippocratic License has engendered its fair share of bricks and bouquets. Given accusations by Emke that the OSI has prioritized software freedom over ethical concerns, it was predictable that the OSI would essentially assert that the Hippocratic License is not certifiable as a legitimate OSS license (presumably because it fails to pass two critical Open Source Definition requirements, namely numbers 5 (No Discrimination Against Persons or Groups) and 6 (No Discrimination Against Fields of Endeavor). Many ethical licenses may fail on these grounds, particularly the requirement that an OSS license must not restrict anyone from making use of the program in a specific field of endeavor, such as a particular business, or from being used genetic research by way of example.

Critics have also been quick to point out the challenges of ethical OSS licenses: enforceability, for one (at worst a license can be “revoked,” but it may be difficult to force anyone to actually change their behaviour or stop using the code), and practicality (who gets to decide what is an “adversely addictive behaviour”?). At the same time, ethical OSS pundits such as Chris Jenson have argued that the GPL was and is also rooted in a strong ideological viewpoint (software should be free, as in speech) and while such views are now widely accepted, “when it first appeared it was a very new and strange idea about licensing software, and was met with a lot of resistance.”

Moreover, many would assert (myself included) that the real value of ethical OSS licenses is that they are inherently disruptive by bringing attention to these ethical issues, challenging the status quo (including the Open Source Definition), and spreading the idea (in Jenson’s words) that software “should be used for the betterment of the world” and that “as developers we can take responsibility for how our code is used.” It ultimately may not matter if such licenses gain “official” certification, and the approval of organizations such as the OSI if they otherwise have an impact.

Arguably the more narrowly drafted ethical OSS licenses, such as the Anti-996 License, stand a better chance of being voluntarily adopted (in comparison with the sprawling Just World License); and the fact that so many code projects and companies appear to have adopted the Anti-996 License to date is impressive.

Notwithstanding its initial protests, even the OSI may eventually be forced to reconsider and update its OSI Definition, given that the document dates back to the 1990s (an eternity in tech years). In an age of increased technology worker activism, where U.S. employees have successfully pressured their employers to cease certain kinds of work for the U.S. military (e.g., Google’s aerial drone imagery analysis), ICE and U.S. Customs and Border Protection, it may be difficult to fully ignore the potential impact of ethical OSS.

Only time will tell whether certain of the ethical OSS licenses will succeed or fall into obscurity.

This article was originally published in Canadian Lawyer magazine. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions