CAL is continuing to expand its presence in the IP space with the addition of our newest staff attorney, Sameeul Haque. In this introductory blog, Samee discusses CAL’s work with Ethical Source, an organization dedicated to empowering those in the open source tech community to exercise their rights as developers to ensure that their software is used for social good and in service of human rights. You can reach Samee by email at sameeul@corpaccountabilitylab.org.
One of the most common questions I get asked when someone finds out I am a lawyer is, “What kind of law do you practice?” When I say human rights and intellectual property (IP), I always get, more or less, the same surprised response: “Wow, how does that work?” Even seasoned attorneys are curious as to how these differing legal practice areas intersect.
It was that same curiosity that led me to CAL. While exploring this uncommon union of human rights and IP law, I realized that much of my own journey has been shaped by a variety of unique confluences, including being born to a Pakistani mother and Indian father, belonging to the Islamic faith and American culture, and having a love of science and a passion for legal advocacy. In fact, it was that last confluence that led me to law school, where I explored and honed my skills in intellectual property and trial advocacy.
Looking back, it’s no surprise that I find myself at CAL, standing at the intersection of human rights and intellectual property with an opportunity to shape how this unique amalgam of practice areas guides the tech industry, beginning with open source software. To understand this project, it’s helpful to review a little history, to see where and why ethics and tech diverged.
Background
In the 1980’s, as the world first began to embrace personal computing, there was a movement that pushed for what we now know as open source software, software whose use, modification, and distribution was not limited by its creator. Over time, that definition has evolved and the open source community faces a question nearly any movement for a more free and open environment must face: is the benefit of obtaining and maintaining this free and open environment worth any cost? For CAL and our partners, the answer is an unequivocal no. Such a benefit is not, nor will it ever be, worth any cost. It is for this reason--this shared belief, that many within the open source community seek methods to retain the open source model while still protecting the human rights of those potentially impacted by their software.
Open source software has long stood for the idea that open source technology should be free for anyone to use, for any purpose, including for evil. For the first few decades, the movement upheld this belief, and the efforts of the open source community has forever changed the landscape of the software development world.
However, despite the desire to allow software code to be available for anyone to use, the code is never truly public domain, instead opting to still acknowledge the creator or owner of a software through intellectual property law.
Under IP law, the creators or owners of a patent, trademark, copyright, or trade secret have exclusive dominion over their IP, which most notably includes the right to exclude others from using it. However, there are limits to what can be protected under IP law. What is protected differs between the IP regimes, but what is consistent is that if something is within the public domain, it cannot be protected by IP law and is free for anyone to use without the creator’s permission.
Instead of allowing their software to enter the public domain, which is applied inconsistently on the international stage, open source software developers have taken a different approach, by using copyright licenses that offer little or no restrictions on the use of the software while keeping ownership of the software with the developer. This allowed developers to receive attribution; disclaim liability; and ensure their software could still be used, modified, and distributed without limitation.
Generally, there are two types of open source software licenses: permissive licenses and copyleft licenses. Permissive licenses grant the licensee the ability to use the license for whatever purpose, adhering to the principles of open source in perhaps its truest and most unrestricted form. Copyleft licenses, however, require that any derivative work also be open source, thus advancing the use and distribution of open source technology.
Ethical Source
Over the past decade or so, there have been growing concerns within the tech community regarding unrestricted use of open source technology. In its infancy, the open source movement created a vast and elaborate sandbox, where developers could experiment, share, discuss, and create groundbreaking work with little to no restrictions. While many developers still play in that sandbox, they are no longer its sole inhabitants. Today, many of those benefiting from open source software are governments and corporations who seek to use the advancements of open source software to facilitate and streamline operations which violate the human rights of their targets and/or cause devastating environmental harms.
The movement to prevent these types of bad actors from misusing open source software, including to commit human rights abuses, has been led by a small team of tech rabble-rousers, including Coraline Ada Ehmke. She and her colleagues created EthicalSource.dev, where they compiled a list of ethical open source licenses currently being used or in development, including the Hippocratic License and the +CAL Software License. Now, in collaboration with CAL and with the support of the Omidyar Network, they have established the Organization for Ethical Source (OES). CAL has partnered with OES to continue the development of ethical open source licensing, aid in educating software developers on licensing practices, and evaluate the efficacy of these licenses in practice.
My Own Sandbox
This joint venture between Omidyar, OES, and CAL takes traditional legal tools--software licenses--and uses them in innovative ways to resolve human rights abuses by users of open source software. This utilization of the law, taking basic principles and using them in creative ways to resolve complex issues, is the reason I became a lawyer.
To be clear, while my colleagues at CAL have dedicated their educational and professional endeavors to human rights work, my journey was much different. Much like the early adopters of open source, I jumped in my own sandbox, exploring a variety of professional endeavors. While in law school, I focused on studying IP law and litigation. After graduating, I went on to be a commercial litigator before joining CAL. I certainly valued human rights work, having spent a short stint working at a not-for-profit serving impoverished villages in rural Pakistan. Still, I had always viewed my passion for human rights and service separately from my career, something that existed in conjunction with my professional pursuits-- existed in its own, separate, sandbox.
This thought process likely stemmed from growing up with an entrepreneurial father who was most often associated with his work at the local mosque, rather than with his businesses. Even when speaking to customers, he would discuss community service projects, needs of the mosque, fundraising, etc. I developed a similar desire to help my community and spent time as a volunteer high school debate coach and as a hospital volunteer explaining Medicare rights to patients. Even now, I spend many weekends coaching trial advocacy students at my alma mater.
Despite this, I never thought about working as an attorney in the nonprofit sector until last summer, where I was asked by my local mosque to aid in its purchase of grave spaces. Due to Muslim graves having to be aligned towards Mecca, they require special engineering considerations and are often bought by mosques in large quantities in order to ensure Muslims can be buried in accordance with Islamic principles. During those negotiations, I gained a new appreciation for the value legal services can have on community outreach organizations.
It was that experience that unearthed a passion for nonprofit legal work, a merger of sandboxes, and a new unique confluence. Soon after this revelation, I learned about CAL and the opportunity to join as a Staff Attorney for Human Rights and Intellectual Property-- a perfect amalgamation of interests, fusing my IP background and passion for service in the development of new and innovative legal strategies.
CAL and Ethical IP
CAL is no stranger to working within IP law to create solutions for human rights abuses by empowering creators. Since its founding, CAL has consistently had Ethical IP projects, including several license development projects, with one unifying goal: To empower software developers, artists, engineers, inventors, and IP creators of all forms to ensure that their IP-- IP which has become essential to the economic, social, and cultural landscape of our societies-- is never used in a manner that undermines human rights.
Now we seek to further empower IP creators and inform potential licensees that the cost of using open source software protected by ethical IP licenses is having a supply chain devoid of any human rights abuses. CAL’s partnership with OES, and the next phase of the Ethical IP project, is centered around helping software developers ensure their IP is not put to unethical ends.
Currently, we are examining the already existing licenses, including our own, to determine their strengths, coverage of human rights abuses, enforcement, and viability. There are an array of ethical open source software licenses. With each license comes a different set of values, concerns, and legal strategies we can learn from. With this evaluation, we will determine whether the current set of licenses is sufficient, if licenses need to be modified, and/or if an entirely new license is worth developing. We are a legal design lab, and with that comes experimentation and change. The available licenses are a work in progress, and perhaps always will be. We view this process as experimental, and are hopeful that through agility and adaptation, we can change culture and practice to provide better protection for human rights and more options to IP creators.
As we go, we plan to open a dialogue with developers, educate developers on the use and enforcement of software licenses, and offer free and direct legal services to those who wish to implement ethical open source licenses in their own work. I am excited to see the extent at which our work at CAL will benefit open source software developers, and IP creators as a whole, enabling them to combat the human rights abuses that are unfortunately all too common in the world’s supply chains.
Sameeul Haque is a Staff Attorney with Corporate Accountability Lab. Interested in using an ethical license for one of your projects? Reach out at sameeul@corpaccountabilitylab.org.
