=Paper=
{{Paper
|id=Vol-3069/shortpaper04
|storemode=property
|title=A Proposed Addition to Open-source Licensing for Improving Freedom of Use
|pdfUrl=https://ceur-ws.org/Vol-3069/SP_04.pdf
|volume=Vol-3069
|authors=Juhani Naskali
}}
==A Proposed Addition to Open-source Licensing for Improving Freedom of Use==
https://ceur-ws.org/Vol-3069/SP_04.pdf
Proceedings of the Conference on Technology Ethics 2021 - Tethics 2021
A Proposed Addition to Open-Source Licensing for
Improving Freedom of Use
Short paper
Juhani Naskali 0000-0002-7559-2595
Information Systems Science,
Turku School of Economics, University of Turku
Turku, Finland
juhani.naskali@utu.fi
Abstract. This paper identifies an often overlooked dimension of open source li-
censing, that of users being able to run distributed software freely and without dis-
crimination, and suggests additions that would further secure freedom 0 to end
users — the freedom for the user to use software however they wish. While, tradi-
tionally, open source licenses have left developers free to work with their code in
any way they wish, and only secured rights for end-users through code modifica-
tions, new licenses rethink this paradigm. Furthermore, modern mobile application
infrastructure is more restricted by design, and has changed the landscape of modi-
fied versions of applications (simultaneously widening the digital divide), and thus
a new analysis is needed on how (and which) freedoms should be secured to ensure
that free software remains free.
Keywords: open source, free software, FOSS, licensing terms, liberty, GNU GPL
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1 Introduction
1.1 Free/Libre Open Source Software
Rights of ownership inherent in copyright can be granted to others using licensing.
Open source (OS) software refers to licensing that allows licensees to freely distribute
software code and redistribute it along with any changes. Open source is based on the
idea of free software — an ideology of openness and inclusiveness, where required
freedoms for using the software are secured for the public.
The freedom in free software refers to liberty, not cost, and this is often empha-
sized with the name FOSS or FLOSS — Free/Libre and Open Source Software. (GNU
Project, 2001) Open source software is not necessarily free of cost (e.g. the applica-
tion can be sold as a for-profit service while the code is open), and there are different
licenses that grant differing amounts of freedoms to stakeholders. Developers are free
to choose a license for their work that fits with their own values.
1.2 Freedom for everyone? Licenses of varying degrees of liberty
As with every kind of liberty in law, liberties secured through licensing come with
opposing duties to others (Austin, 1885, p. 398). A license that protects (i.e. does not
give away) patent rights of authors and contributors does so at the expense of end-users
who now have to secure any patent licenses they require by other means. A copyleft
or non-permissive open source license, one that requires contributors to license their
derivative works using the same license, is using this duty of contributors to secure the
right to use the software for the public. Both of these groups shape the license selection
of OS projects Lerner & Tirole (2005).
Thus licensing liberty is a question of who holds what rights, and how this affects
others. There is no ultimate universal liberty for everyone, as each liberty imposes
some duties to others or signs away other rights. Practically, there are three somewhat
overlapping parties to these license agreements: authors (original licencers), contrib-
utors (those who relicense/rerelease or sublicense their derivative works) and public
(end-user licensees). The rights of these three parties are weighed against each other
depending on what the license contains.
As choosing what rights to sign away with licensing is both a very personal choice
and depends a lot on the type of project in question, it is a good thing that there is a va-
riety of licenses to choose from: A for-profit endeavor can open their code to the public
without losing rights to make a profit with their software; an ideological programmer
can release code secure in the knowledge that the fruit of his labour will be free to all
future end-users and not commercialized by others.
The degree of freedom and its recipients can be freely chosen, but while it is tech-
nically possible for everyone to write their own license, not everyone has the necessary
legal skills to do so. It also takes a substantial amount of effort and skill to read through
new licenses and understand their legal ramifications. A large enough diversity in li-
censes will create confusion, as it is difficult to grasp the totality of offered possibilities
(Gomulkiewicz, 2009). It is clear that reusing shared, known licenses drives adoption.
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1.3 The four user freedoms of free software
Free software ideology values the freedom of users. GNU GPL is founded on the four
basic freedoms, which are an attempt to codify these values. The four basic freedoms
are:
• the freedom to use the software for any purpose, (Freedom 0)
• the freedom to change the software to suit your needs, (Freedom 1)
• the freedom to share the software with your friends and neighbors, and (Freedom
2)
• the freedom to share the changes you make. (Freedom 3)
These four freedoms form the definition of free software, according to GNU Project
(2001). Of particular interest to the topic of this paper is Freedom 0, which can be seen
to be at the foundation of free software.
1.4 Researched dimensions of rights included in OS licenses
Lerner & Tirole (2005) conducted an empirical analysis on the determinants of license
choice, and the scope of OS licenses on licensees freedom to use their software as
they wish. They focused on two characteristics of OS licenses: copyleft, whether the
full source code of any modified versions should also be published, and reciprocality,
whether the source code can be mingled with source code utilizing different licensing
terms.
These two main considerations, as well as author attribution, the inclusion informa-
tional texts (e.g. copyright and license notices) and DRM (Digital Rights Management)
or patent usage rights in the license, are commonly used in mapping the different di-
mensions or aspects of rights granted by OS licenses (Schoettle, 2019; Hofmann et al.,
2013).
One dimension not yet explicitly covered by previous examinations of the wide
array of rights granted to licensees is the right to use the software as they wish (i.e.
freely) without the need to alter source-code. Even though the importance of Freedom
0 has been discussed (GNU Project, 2001; Stallman, 2013) and included in the very
definition of Free Software from the beginning (GNU, 1986), it has been mostly thought
to be covered by the sharing of the source code and the right to modify and distribute
it. After all, the idea goes, any unwanted limitations in the software can be changed or
removed by licensees. But it can be argued that this way of securing freedom of usage
is not strong enough to guarantee freedom 0 for everyone.
2 Missing dimension of securing user freedom to run software
2.1 User blocking is arguably allowed in open source software
While the four freedoms should secure the public the right to use software as they
wish, there is no clear consensus about whether these freedoms are secured merely
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by sharing the source-code. An effective example of this can be seen in cases where
distributed programs include hard-coded (embedded in the source code) functions that
explicitly block users based on their affilitation (see Naskali, 2020). Affected users
are unable to use the program without modifying the code and rebuilding the program.
While Freedom 0 does not mean that application developers should be forced to add
in functionalities for their users or that developers are in violation of GPL licensing if
their programs fail to run with some inputs (GNU Project, 2001), it is something else
entirely when a function that selectively identifies certain user groups and stops the
program from running for them. This is clearly the case when the added function has
no other purpose than blocking certain user groups and without it they would not be
blocked (i.e. it is not an unintended consequence of something else or missing support
for a protocol or service).
As censorship on the code level (e.g. domain blocking in source code) is a new phe-
nomenon, it is difficult to say how prevalent these practices will become. Comments on
implementations of domain blocking reveal that there is confusion on whether such an
implementation of rights management is in compliance with OS licenses, free software
philosophy or both/neither (e.g. Tusky, 2019). DRM has traditionally been seen to limit
usage rights based on content copyright, not based on user affiliation. Nevertheless do-
main blocking is similar enough to traditional DRM, which is explicitly allowed in GPL
as long as it is possible to remove such limitations by changing the program code, that
it can be said to be in accordance of the licensing terms.
The technological industry has been moving towards permissive licenses, that allow
for parts of the source code to be republished under closed licenses. Johnson (2021)
data shows that while permissive licenses were used in 41% of open source licenses
in 2012, in 2020 that number has risen to 76%. While it could be argued that as non-
permissive licenses get less popular, the need for licenses that secure more freedoms for
the end-users lessens, it does not necessarily follow. In fact, there is little downside to
having multiple levels of freedom-securing licenses, especially when it comes to non-
exclusive and discrete license dimensions (permissiveness and user blocking). There is
perhaps some value in having clear options on this new dimension of user blocking.
2.2 Digital divide makes it impossible for general public to secure Freedom 0
using source code
The digital divide is defined as inequality between those who have access and means to
use technology and those who do not. While these inequalities are not absolute, in that
they can be bridged, nor the division clear-cut, it is a phenomenon that clearly exists
and should be addressed (Van Dijk, 2006).
The effects of digital divide become more pronounced on second-and third-level
digital divide, where the use and outcomes of differing skill-sets and possibilities are
weighed (Scheerder et al., 2017). In the case of controlling usage of open source soft-
ware, hard-coded control methods such as domain blocking and other types of censor-
ship make it so that only those with access to computers and high-level programming
skills have the freedom to use such software, and voice their opinions reliably (Naskali,
2020). This means that for any individuals not possessing the required programming
skills to circumvent blocking functionality, Freedom 0 is not secured unless someone
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Proceedings of the Conference on Technology Ethics 2021 - Tethics 2021
more skilled goes through the effort of removing said functionality and redistributing
the unblocked version of the software.
If code is introduced in an open source project with the goal of blocking certain
groups from making use of said software, it is not necessarily enough that the code
can be copied and changed to remove the changes. If it is indeed an important goal of
(some of) the developers to consciously block such use, it is possible that the blocking
code will be obfuscated and made difficult to remove, or that other types of difficult-to-
remove DRM will be introduced. In the current era of centralized platforms, it is even
possible to release open-source software that depends on a centralized server network
that doesn’t allow forks on it. Both these methods would further exasperate the dig-
ital divide, and make securing freedom 0 difficult or impossible even for experienced
programmers.
Much of open source ideology hinges on the fact that development is done according
to good programming practices and technology is not influenced by outside forces such
as politics. This is perhaps not quite as true as it was a a couple of decades ago. In a
more uncertain environment, it is completely conceivable that a developer might want
the option to protect the freedom of the public to use their software freely, and licensing
is the correct tool for guaranteeing such freedoms.
Digital divide makes it imperative for IT specialists to pay closer attention to public
liberties, as the majority of users do not have the requisite skillset to modify program-
ming code, rebuild it to new binaries and distribute their fork of the software. This
majority is silent due to not being represented on the discussion forums of code devel-
opment platforms. Moreover, the walled gardens of modern mobile platforms make it
even more complicated to distribute your own version of an applications.
2.3 New ethical source licenses
In past years, there has been more interest in open source licenses based on ethical
values (Goodman-Wilson, 2020). For example, Ethical Source tries to drive licenses
that prevent software use for harm1 and their GitHub repository’s2 first commit was
made in 2019.
Notably, such licenses cannot be considered open source, as restricting the use
of software by licensing is against the open-source ideology and Open Source Initia-
tives rules for open source licenses (2019), which state that open-source licenses must
comply with ”No Discrimination Against Persons or Groups” and ”No Discrimination
Against Fields of Endeavor”. Such license is not open. This new type of licensing nev-
ertheless serves as an example of more ethical consideration being put in licensing, as
well as the cultural drive for more restrictive measures in licensing — more restrictive
for the public, securing more rights for the licensers (i.e. limiting what others do).
2.4 Examination of GNU GPLv3
GNU GPL is founded on the four basic freedoms listed in the introduction. The li-
cense has been formulated to secure these freedoms through the sharing of source code.
1 https://ethicalsource.dev/licenses/
2 https://github.com/EthicalSource/ethicalsource.dev
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Distribution agreements have been consciously left outside this license, presumably be-
cause user freedom is secured through the availability of the code, even in the case of
closed or paid binary distribution.
GPLv2 was updated to GPLv3 in 2007 to include new freedoms that were previously
not secured for end-users, and includes protections against ”Tivoization”, that prevent
users from freely using the software by using hardware-based limits to code modifi-
cation; and laws prohibiting free software, that prevent using DRM laws to prevent
software distribution and discriminatory patent deals. In other words, GPL-licensed
software can include DRM as long as its removal is not made impossible with special
hardware or laws.
GPLv3 (GNU, 2007) is used as an example in this paper because it is explicitly
founded on the four basic (user) freedoms and is one of the most freedom-securing and
well-known OS licenses. Nevertheless, the proposed changes could be built on top of
any number of licenses or formulated as a new license with a completely different name.
GPL and open-source licenses currently do not include protections for users to run
the distributed binaries without impediments. It must be understood that this is not nec-
essarily a bad thing. Not securing these liberties ensures more freedom to the licensers
to do as they wish (e.g. implement DRM), and this can be a good thing.
I argue that the following changes are in the spirit of GNU’s four basic freedoms, but
should not necessarily be at the core of all GPL licenses. In a similar fashion as LGPL
has a slightly different emphasis on the open source ideals compared to GPLv3, these
proposed additions would constitute another take on how the license weighs liberties
between authors, contributors and the public, granting some freedom away from authors
and contributors in favor of the public. I’m not arguing that this should happen instead
of what e.g. GPLv3 does — I’m only arguing it should be an explicitly stated option.
3 Proposed additions, by example of GPLv3
First proposed addition to GNU GPLv3 Chapter 5. Conveying Modified Source
Versions.
e) The work must not include any methods or additional protections for restricting the
use of the work by particular persons, groups or fields of endeavor.
This addition would disallow the use of DRM (digital rights management) that tar-
gets persons or groups. Censorship systems such as domain blocking and network-
based DRM would also fall under this category.
Second proposed addition to GNU GPLv3 chapter 6. Conveying Non-Source Forms
1. Any object code conveyed must not include extra blocking methods aimed at dis-
criminating agains persons, groups or fields of endeavor specified in Chapter
5.
The object of this addition would be to secure Freedom 0 when using conveyed
non-source forms (i.e. binaries). This would (most importantly) include mobile apps
downloaded from official app stores.
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This addition might be redundant with the previous addition blocking the use of said
blocking methods in the source code. It is included here to facilitate discussion, as the
main part of the addressed problem is caused by distributed binaries, especially in the
walled-gardens of mobile app stores. Perhaps it would be best to only target the source
code and not widen the license to touch this part of distribution. Or perhaps it would be
better to keep total freedom for developers when it comes to the source code, and only
include this addition or allow distribution as long as there is also a version available
without restrictions.
4 Thoughts
4.1 Would a license with the proposed changes still be open source?
The proposals would sign away more rights from contributors, should they wish to
restrict the right of usage by the public. It could be argued that such licensing is no
longer open source, or that it is less open, because use of the source code is restricted
in some manner (especially in the first proposal). But the restrictions are comparable to
the duties of needing to provide the source-code along with distributed binaries or not
being allowed to relicense the work and choose their own license — the contributors
are given duties that correspond to ensuring the freedoms of the public.
Perhaps such a license would not be open source, but rather part of the ethical li-
censes family. Nevertheless, such a distinction is somewhat semantic in nature. The
cure issue is whether more weight is put on the rights of the developers (both original
licencers and new licensees) or the public (end-users, whether developers or not).
4.2 Proposed changes are arguably in line with GNU values
GNU GPL is based on the four basic freedoms of users, and as articulated by Stallman
(2013), freedom 0 ”means that the distribution of the software does not restrict how
you use it”. Stallman’s example is vivid: ”Imagine selling pens with conditions about
what you can write with them; that would be noisome, and we should not stand for it.
Likewise for general software.”
The digital divide mentioned in chapter 2.2 makes it imperative that user freedom
be guaranteed, moreso when development and distribution options get more difficult.
Mobile application distributions systems are perhaps a special case when it comes to
software distribution, as they mostly rely on ”walled gardens”, a centralized distribution
system in the form of app stores3 . Installing your own version of an application requires
at the very least a development environment dedicated to the chosen platform and a
high level of technical know-how; possibly also payment to the required distribution
platform, if one wants to share the application or install it without resorting to developer
options. In such a case, Freedom 0, the freedom to use the software for any purpose, is
not secured for all users without additions such as the ones proposed.
In comparison, the proposed changes would be clearly in conflict with the values
of some other ethics-based licenses that explicitly restrict the use of software, e.g. the
3 While Android allows the installation of apk files outside Play Store, the option is off by default and can
be difficult to do without technical skills.
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NoHarm license4 that forbids use related to things such as slavery, gambling, tobacco,
hate speech or discrimination. This is not a problem, as a wider selection of licenses
ensures that people can choose how their software is shared and used. The proposed
additions would not affect those who choose not to use a license that includes them.
Arguably, the proposed changes would go well together with a new version of GNU
GPL. Just as GPLv2 was updated to GPLv3 to protect user freedom from tivoization,
laws prohibiting free software and discriminatory patent deals, these new additions
would further protect users from new discriminatory restriction methods. As such, they
should not be a replacement license but a complementary one or a completely new
license.
4.3 Comparisons with similar end-user freedoms not included in GPLv3
Money for nothing
GNU GPL explicitly allows selling copies of free software5 . This provides a good
example of how ’free’ in free software refers to liberty (of code) and not cost (of dis-
tribution). The proposed changes do limit freedom to work with the code, which could
bear further examination to ensure that this does not create unforeseen problems.
Limiting usage through DRM
Perhaps the closest thing to the proposed changes is the use of DRM, which is explicitly
allowed under GPLv3 licensing6 . But even DRM is disallowed when protected by
tivoization or law, and a case could be made that similar protection is provided by
modern mobile app distribution platforms, which should be included in similar fashion.
Voters are not allowed to change open source code in voting machines
The GPL FAQ gives an example of voting machine users not being allowed to change
the code running on voting machines. Such abilities to control running software are not
required by GPLv3 licensing.
The FAQ states that such liberty is not required, as the voter doesn’t get posession
of the object code, even temporarily, and so the voter also doesn’t get possession of the
binary software. The FAQ also states that ”voting is a very special case”, so the appli-
cability of these thoughts on software in general and distribution of mobile applications
specifically is arguable.
4.4 Possible problems
The proposed changes should be scrutinized by the open-source community and, specif-
ically, legal experts, to make sure that their scope is as-intended. Without sufficient legal
expertise, it is possible that there are large unintended consequences, and these should
be found out and eliminated before releasing a full license.
4 https://github.com/raisely/NoHarm/
5 https://www.gnu.org/philosophy/selling.html
6 https://www.gnu.org/licenses/gpl-faq.htmlDRMProhibited
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The proposed changes do limit the freedoms of contributors significantly. It might
be possible to limit these freedoms less, while still protecting the public freedom of
use, by e.g. requiring the conveying of non-source forms without the listed protection
methods. This would allow contributors to release code and binaries with discriminating
restriction methods as long as they also release versions without restricting methods.
Arguably, a more clear-cut division of licenses makes more sense: if you wish to
restrict the use of your software by code, choose a license that clearly allows such
restrictions; if you wish for your program to be open and freely usable, choose a license
that disallows restricting methods.
5 Conclusion
This paper identified user freedom to run a software as they wish as a dimension of open
source licensing that has so far been left undefined in commonly used OS licenses. This
new dimension should perhaps be considered in scientific literature along with the more
common dimensions of copyleft/permissiveness and the securing of patent rights.
In practice, while there are already many licenses to choose from, and there is noth-
ing inherently wrong in the current formulation of GPLv3, there is some confusion
on whether blocking particular persons or groups is compliant with it (Naskali, 2020).
When some people interpret the licensing terms in a way that it already forbids things
like hard-coded domain blocking of user groups, and others view this type of application
behaviour as license compliant, it seems like some clarification is in order.
Functionality overriding Freedom 0 should be clearly allowed or clearly disallowed
in OS licenses, in order for licensers to make informed choices on the matter. If the
question is made explicit in the form of new licenses with the additions proposed in
this paper, licensees could choose between licenses based on their own wishes, and
contributors using freedom 0 securing licenses could be secure in the knowledge that
the project they are working on will stay free.
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