996 ICU and Ethos Licensing

Recently, software developer activists have begun to release software under source code licenses expounding ethical conditions. The latest example of this trend is the Anti-996 License, which imposes a condition to comply with labor laws. “996” refers to a practice of requiring workers to work 9am to 9pm, 6 days a week. The term “996 ICU” refers to working 996 hours at the expense of one’s health (ending up in the Intensive Care Unit of the hospital).

The GITHUB repository called “996 ICU” is a new creature, part web site landing page, part journalistic advocacy, part software. The GITHUB page exhorts adherents to:

  • Update this list with evidence to help every worker.
  • Add this badge to your project to support 996.ICU.
  • License your awesome projects with the Anti 996 License.
  • Add proposals to give advice about the development of 996.ICU.
  • Go home at 6 pm without feeling sorry.

Prior ethical licensing efforts have met with less sympathy. Examples include the “Good not Evil” license that applies to JSON, whose condition is largely ignored due to its vagueness, and the ill-fated anti-ICE license noted previously on this blog that was withdrawn within days of its release. But Anti-996 is much more professional than prior efforts. For one thing, the license is thoughtfully written. It is essentially the MIT license with two added provisions, both of which are written in a lawyerly style.

“The individual or the legal entity must 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 th 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.

“The individual or the legal entity shall not induce, suggest or force its employee(s), whether full-time or part-time, or its independent contractor(s), 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, nor shall such individual or the legal entity limit, in any methods, the rights of its employee(s) or independent contractor(s) from reporting or complaining to the copyright holder or relevant authorities monitoring the compliance of the license about its violation(s) of the said license.”

Notably, the license casts its requirements as license conditions instead of license exclusions, perhaps in an effort to bring it within the ambit of the Open Source Definition (OSD). However, Free Software Foundation was quick to categorize it as non-free. The conflict between ethos licenses and the OSD or Free Software Four Freedoms has not been widely discussed, but the arguments either note that ethos licenses restrict certain recipients (labor law violators) from exercising the license, or restrict certain uses of the software — both of which arguably violate the OSD.

Casting labor law compliance as a condition of the license also means the result of violating the condition might be limited to loss of license rights leading to resulting copyright remedies, rather than a breach of contract claim leading to damages for failure to adhere to law. So lawyers might question whether the license can net the most obvious desired result — compelling companies to stop violating labor laws. But the license has accomplished a significant objective already, which is to call attention to the workers’ complaints. Moreover, violation of labor laws would normally yield its own separate remedies.

In case you were wondering, the catchall in the first paragraph, Core International Labor Standards, apparently refers to the nine core international human rights instruments of the
, international standards promulgated by the United Nations on topics like human trafficking, rights of disabled persons, migrant worker rights, children’s rights, and women’s rights. Presumably local labor laws would be a much higher bar.

Anti-996 is probably not the last ethos license we will see, and if this trend continues,it may portend dispute about whether ethos licenses can be written to meet the OSD.

Meanwhile, I will do my part and do my best to go home at 6 p.m. without feeling sorry.

Author: heatherjmeeker

Technology licensing lawyer, drummer, dancer

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