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Ethical Employment Contracts Instead of Ethical Licenses?

by Karen Sandler on December 17, 2020

Earlier in the year at Copyleft Conf, we had a few sessions dedicated to the Ethical License movement. During the conference, Coraline Ada Ehmke gave a moving talk outlining why technologists and software freedom activists in particular must act against atrocities, especially those committed using FOSS. I have long argued that technologists (and especially software freedom activists) should dedicate more care and resources to the ethical use of technology and eliminating discrimination and oppression that technology often enables. While I don't believe software licenses are the best way to accomplish this task, I've wondered since the conference what FOSS contributors can do to protect human rights.

The proposed licenses have been essential to starting these discussions, but the license changes themselves seem unlikely to work: they'd introduce nonfree provisions, introduce license uncertainty and on top of that, we know that companies that would commit atrocities will ignore licenses and act from judgement-proof jurisdictions. So the question is how best to influence the behavior of companies who can improve their human rights record and how to insulate employees who want to take action to assure that their companies do the right thing.

Through our ContractPatch[1] initiative, Conservancy has been working to educate developers about employment contracts. We plan to eventually draft suggested contract language to help developers negotiate their employment contracts. While ContractPatch has moved slower than I would have liked (due to our prioritization of other urgent work), the initiative has shared good information, primarily via our talks and blogposts. I've been gratified to hear from folks that they've actually been able to negotiate better terms into their employment agreements as a result! Some have told us that they've succeeded in retaining their FOSS copyrights. Others have simply negotiated a better salary, as ContractPatch information improved their negotiation skills generally.

In the context of human rights, where FOSS licenses are unlikely to achieve the desired result, perhaps contractual demands by developers can succeed. I propose here a simple “contract patch” that can more successfully leverage developers' power in the market to prevent human rights abuses due to software.

Employees of all sorts face a difficult dilemma upon discovering unethical practices at their company. If the activity is already in advanced stages and/or the profit amounts generated from the practice are high, the employee's predicament becomes even more precarious. Should they report it to their manager or their manager's manager? If those managers all know about the activity already, will a complaint even be taken seriously? Often, the employee will have signed documents upon employment committing them to confidentiality, so the employee has little choice except to decide whether to quit or not but otherwise remain silent. For matters that concern the safety and well being of human beings, the stakes are much higher. Yet, employees have even fewer choices to ameliorate the situation. While most companies have whistle blower policies, the fallout of corporate politics can leave employees powerless.

What if those employees knew exactly how to handle the situation? What if the steps to escalate this situation were spelled out in advance? What if the employee were truly assured non-retaliation for reporting the situation? What if the employee were guaranteed a soft landing if they felt they needed to quit their job when the company took no action? In other words, what if these details appeared in their employment agreement and the employee knew they could rely on it from day one of their employment?

Amending Employment Contracts

With this in mind, we can draft a clause for employment contracts. Should an employee come to know that the company is committing violations of human rights, their employment agreement can specify the ways they can raise attention to this matter. Perhaps they first report the violation to their manager. If there is no satisfactory response or repair of the situation within a certain period of time, then the employee is to report the violation their manager's manager. If again there is no satisfactory response or action, the employee is to report the violation to the head of the department. If in that instance there is again no satisfactory response or action, the employee may post the violation on an internal mailing list or posting board. If again no action is taken, the employee may choose to terminate their employment and receive a pre-agreed severance amount — similar to the “golden parachute” provisions that executives have in their contracts. The company would also promise no retaliation against the employee for reporting the violation, including a non-disparagement provision that prevents the company from speaking negatively about an employee who opts for the severance. Each company could tailor the reporting chain to match what would make the most sense with their corporate structure. Nothing in the provision would undermine the company's confidentiality provisions with the employee, but the employee would have confidence in raising an alarm and also be able to quit while having a cushion to be able to look for another job.

Like most ContractPatch proposals, these approaches works best when the clause becomes standard. Companies are more likely to agree to these terms if many developers who interview ask for it.

This is a relatively simple solution — a good set of ContractPatch terms and a collective bargaining demand around it — is an outcome that companies can actually accept when the terms are reasonable. It protects the company's confidentiality and incentivizes employees to bring to management's attention problematic practices that the companies should have an interest in knowing about. Additionally, while the company and employee may disagree about the human rights implications of a problematic behavior, the ultimate negative result of the provision's operations is that the employee leaves the company, with a small, pre-agreed and easily budgeted financial settlement. In the case the employee is simply wrong about the alleged human rights violation, a voluntary exit is an obvious benefit to both parties. However, if multiple employees exercise this contract clause, the company then has a strong incentive to cease the violations, both financially and operationally. Alone one employee may not effectuate change, but standing together employees can have a powerful voice. Adding contract provisions like this one work within the existing corporate structure but amplify the impact that employees can have.

While I've focused my example on human rights violations, the provision could also cover endangering public health and safety or substantially violating the law.

The ContractPatch

Employment contracts often have provisions where the employee represents that they will obey laws and act ethically in the position. Here's an example of this kind of language I've seen in a contract:

Employee will act in an honest and ethical manner in compliance with all applicable laws … and comply with the policies, procedures, requirements, rules, and regulations promulgated at any time and as amended or supplemented from time to time by Employer … including Employer’s policies on sexual harassment …

Employment agreements are already the correct venue for these expectations. We can build on provisions like this to introduce the one I'm proposing here. The language itself could look like this:

“Human Rights Laws”) is defined as the United Nations Universal Declaration of Human Rights and any other applicable laws protecting the rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.

An “Unethical Action” is defined as an action by Company that violates Human Rights Laws, excluding actions Company has taken against the Employee individually.

An “Adequate Response” is defined as a written response that (a) explains why there has been no Unethical Action, or (b) provides notice that the Unethical Action has ceased.

A “Planning Response” is defined as a written response that sets forth a plan to cease the Unethical Action.

Company shall act in an honest and ethical manner in compliance with all Human Rights Laws.

In the case that Employee becomes aware of any Unethical Action, Employee will report such action to their manager in writing as soon as is reasonably practicable. If Employee's manager does not provide an Adequate Response or a Planning Response within two weeks, Employee will send the report to their [FIXME - manager's manager/department head]. If [FIXME-title] does not provide an Adequate Response or a Planning Response within two weeks, Employee may report the Unethical Action via [FIXME - whatever relevant internal company-wide dissemination makes sense, whether it be an email list, posting board] (“Company Notice&Rdquo;). Employee may also provide a Company Notice in the case that the Employee has received a Planning Response but no Adequate Response is received within the period set forth for repair in the Planning Response. If the Employee receives no Adequate Response or Planning Response to a Company Notice within two weeks, Employee may terminate their employment and receive an amount equal to the greater of (i) twelve (12) weeks severance pay or (ii) twice the amount required by any relevant applicable law or statute. Company will not retaliate, intimidate or harass any Employee who reports an Unethical Action. If Employee's employment is terminated for any reason after Employee first reported the Unethical Action, Employee shall receive an amount equal to twelve (12) weeks severance pay. Nothing in this provision contradicts, supersedes or diminishes Section [FIXME-CONFIDENTIALITY] of this agreement. However, if Employee terminates their employment pursuant to this provision, Company will not engage in any disparagement of the professional or personal life of the Employee.

This text is a first draft and edits and suggestions are welcome on the Contract Patch mailing list .

No software developer expects to encounter human rights violations or unlawful activity using software when they take a new job. But history shows that it will and does happen; Coraline's talk is an excellent list of known examples. Introducing new clauses into employment contracts is a practical way to align the interest of all parties, while providing simple mechanisms to raise attention to and end problematic behavior. Developers usually have more bargaining power than most workers. Let's use that to make sure we compel our employers to behave ethically and provide us the safety to stop providing them with our services if they don't!




[1] While I'm a lawyer and many of the people who have worked on ContractPatch are lawyers, Conservancy doesn't provide legal advice and so ContractPatch isn't meant as legal advice. Please use the language as a starting point or as an example for you to work on with your own lawyer to figure out what works for your situation.

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Tags: ContractPatch

17 USC § 1201, DMCA Exemptions and Software Freedom

by Bradley M. Kuhn on December 16, 2020

We at Conservancy spent much in the last week preparing our Long Comments in our DMCA exemptions requests for this round. When we announced these exemption filings, many of our Supporters asked us to “back up and explain” what this whole process is and why Conservancy participates. These are excellent questions and so we provide below a simple explanation of the DMCA exemption process, why it exists, and why FOSS-friendly organizations like us chose to participate in what is ultimately a flawed process.

The provisions of the DMCA were designed to support DRM with the power of civil (and in some cases, criminal) law. Media companies, seeing that digital distribution of content would likely become the standard, sought an iron grip on their business models and gain absolute control of their copyrighted works — making it effectively impossible for FOSS to exist for reading books, watching movies, or listening to podcasts or music. The law is morally wrong because it it seeks to criminalize publication of some software techniques and knowledge, and, moreover, the law creates “chilling effects” for everyone in the USA who might consider writing FOSS that is on the edges of such the law's technological restrictions. We saw just in the last few months how organizations like the RIAA can use the DMCA to harm FOSS projects. Since the law has been enacted, DRM has become ubiquitous. Those who write FOSS that even comes near the job of circumventing DRM live in fear.

The dangers of such regulation are obvious to most FOSS activists and technologists. However, to people less savvy about technology, the purported “compromise” struck in the DMCA can seem perfectly reasonable. 17 USC § 1201 prohibits “circumvention [of] technological measures” put in place to stop acts that were otherwise illegal. To those not well versed in copyright policy, this would of course seem no different than other updates to laws for the digital area — such as assuring existing crimes in real life were also crimes when committed over the Internet. For those of us who understand technology and software, the compromise is not reasonable; DMCA made a digital action a crime that had never been a crime when done in analog — publishing technological know-how to improve and repair devices that we own. The DMCA ultimately gave carte blanche and the force of law to ubiquitous DRM.

The main part of the statute that accomplishes this is 17 USC § 1201(a)(1)(A). Ostensibly, §1201(a)(1)(B-C) provide limitations that rein (A) back. Take a read of these sections and then follow along here in parallel. (A) uniformly forbids “circumvention of” a DRM measure implemented by a copyright holder. (B) tells us that we, the public, can come forward once every three years to to identify technological measures we should have the right to circumvent. If we can prove (per (C)), that there are legitimate non-infringing activities that we could imagine engaging in by circumventing the technology restrictions and we can convince the Copyright Office that those circumventions would indeed legitimately aid in non-infringing uses of the DRM'd copyrighted works, then — and only then — can we circumvent a technological measure that effectively controls access to a work. That's the basics of the exemption process.

For a more detailed understand of how the process works, there are three videos from the Copyright Office:

While the material unfortunately includes significant pro-DRM propaganda, it does explain 17 USC §1201 quite well. The TL;DR summary is as follows:

Basic Overview of 17 USC §1201

  • First, §1201 is primarily concerned with so-called “Technological Protection Measures” (generally abbreviated “TPM” in DMCA policy circles). A TPM is defined broadly to include any access control, including scrambling, encryption, password protection and the like.
  • §1201 prohibits circumvention of a TPM implemented for access controls to a copyrighted work.
  • §1201 prohibits dissemination of information (both commercially and non-commercially) that explains how to circumvent a TPM put in place for either access controls, or copy prevention of work. (The statute and the Copyright Office use the pro-DRM term, “trafficking”, for such activity. We use the term “dissemination” to avoid supporting that propaganda.) If you've heard us and others talk about how the DMCA squelches Free Speech (or are familiar with the phrase “chilling effects” that we activists have argued are produced by DMCA's mere existence), this is the part of §1201 that relates to those issues.
  • Exemptions to these rules exist. The law itself has some permanent exemptions, listed in §1201(d-j). These permanent exemptions are useful but certainly don't permit unbridled development of FOSS software that might be considered a circumvention technique.
  • All other exemptions are temporary. The exemption process happens every three years — hence the term “Triennial Rulemaking”. There is a rulemaking process occurring right now, and here's a summary of how that works:

The Triennial Rulemaking Process

  • A temporary exemption is only granted for uses of copyrighted works that are otherwise non-infringing (i.e., only §1201 restrictions cause infringement, and there must be no infringement due to any other part of the copyright act).
  • The Copyright Office Exemptions are never permitted to the “dissemination prohibitions”, only for use and access. (Only Congress can change anything regarding actual dissemination of circumvention techniques. This is particularly troubling for many reasons, including that the WCT, the international treaty that DMCA intended to implement, only mandated the access control issue, and does not speak to dissemination of general circumvention information. Most DMCA-like laws in other countries are not as strict. But in the USA, there is simply no way to get an exemption for dissemination of circumvention techniques — other than lobbying for legislative change.)
  • Exemption applicants must show that there is current adverse impact due to TPMs for the public regarding the non-infringing uses that the exemption would allow. (Alternatively, the applicant, may show that there will be such adverse impact within three years.)
  • Hypothetical and theoretical arguments are not accepted. Applicants must show that specific people will (or soon will) suffer adverse effects when unable to engage in real-world non-infringing uses that are directly prevented by a specific TPM and that circumvention would enable those non-infringing uses to resume and/or continue.
  • The Rulemaking process itself proceeds as follows:
    • The Office issues an NPM, which is the standard method by which any Administrative Branch agency announces a process where new rules will be made.
    • Round1: Petitioners make an initial filing to indicate that they'll apply for an exemption and its primary impetus. These are short, and were filed on 2020-09-08 for the 2021 Rulemaking.
    • Petitioners and others can then make supportive public comments. Those are what were due on Monday (2020-12-14) for the 2021 Rulemaking. (We'll have follow up blog posts about our filings throughout this week and next.)
    • Round 2: opponents may file objections and disagreements. We'll of course expect to see lots of software-freedom-unfriendly vendors making arguments against our filings during that period, and we'll point our blog readers to any filed in opposition of our exemption requests.
    • Round 3: reply comments from the Petitioners (and neutral comments from others) are allowed.
    • Finally, Round 4: public hearings occur, which are optional. Conservancy participated in the public hearings in the 2015 year Rulemaking when we successfully requested the exemption for “smart” TVs.
  • Note, finally, that there is an expedited process for renewal of temporary exemptions, which Conservancy also participated in for the TV exemption originally granted in 2015 and renewed in 2018.

For many activist organizations, the question often becomes whether to participate in or boycott this process. The process places the burden on underfunded activist organizations to make a case just to permit what are ultimately extremely narrow areas of activity. (Remember that the Copyright Office's position is that exemptions are never granted for circumvention dissemination, only access, so the temporary exemptions are both narrowed in that scope and narrowed to specific types of devices or activities.) Conservancy, like EFF, used to be among those who boycotted this process. Reforms — which were sought by CDT, EFF, Public Knowledge, Public Labs, and other organizations — in recent years have improved the process, but it remains time-consuming and painful. However, given that there is no viable political will or path to seek repeal of the DMCA, we're stuck with this process. Just as copyleft is designed to utilize the general copyright system — which most FOSS activists (at least) find problematic or (in many cases) oppose outright — we must similarly work, with regard to this specific part of the Copyright Act, within the system to find our way through. Conservancy has focused our filings in the process on those areas that most directly impact software freedom, and we look forward to telling you more about them this week.

Meanwhile, the dangers we face from the parts of the DMCA that cannot receive exemptions are real. People have been put in prison for “trafficking” under this statue; a company can, as Adobe did, simply phone the FBI to get someone arrested. Companies like Sony can drag in the Feds into civil cases to apply pressure for demand of unreasonable settlements. As long as we live in a regime willing to tolerate this kind of policy, we have to make use of the process we have to improve the odds that FOSS developers and researchers don't face both civil and criminal penalties.

Tags: conservancy, law, licensing

Public Drafting Process for the DMCA Cooperation Pledge

by Bradley M. Kuhn on November 30, 2020

In my blog post two weeks ago, I proposed — in light of increased DMCA takedowns against FOSS projects (and relatedly, increased enforcement of 17USC§1201) — that we ask for-profit copyright holders to agree to a pledge similar to GPLv3§8¶3. Simply put, proprietary copyright holders should be equally as reasonable as GPL copyright holders are and give FOSS projects 30 days to negotiate and discuss copyright infringement allegations before triggering a de-facto injuction with the DMCA.

I admit that I thought it unlikely that any for-profit companies would even be willing to discuss the possibility of making such a pledge; my proposal was more thought experiment than actual policy. I was however pleasantly surprised to receive positive feedback from at least four companies as well as interest from another non-profit organization who is excited about the idea.

After both internal discussion and external discussion with these parties, we feel that now that the project has moved from thought experiment to real potential policy, that we should move the discussion public. It's just in our DNA at Conservancy to act transparently and welcome stakeholders into public discourse about policies. Moreover, these sorts of industry pledges and assurances have historically been drafted in secrecy by a few companies and then put forward as a fait accompli to the FOSS community. We'd like to change that tendency in this process.

Today, we created a Git repository and a mailing list for this project. We welcome anyone interested in the proposal of this pledge to join the mailing list and propose a patchset or just generally write up suggestions. Folks participating need not and do not in our view bind their company to the pledge; rather, we're looking for wide input on what the text needs to say to make it most likely that organizations will agree to the pledge.

Tags: conservancy, law, licensing

A Modest Proposal In The New Age of DMCA Takedown Aggression

by Bradley M. Kuhn on November 13, 2020

Just two weeks ago, my colleague Denver posted a criticism of Microsoft's GitHub for its capitulation to the RIAA takedown notice — which alleged, with specious evidence, that youtube-dl violated 17 USC § 1201. Frankly, this is the kind of behavior we'd expect from the RIAA — an organization controlled in recent decades by two dudes who seem to have helped write § 1201. No one is surprised when the RIAA attacks FOSS projects.

Last night, though, I was shocked to learn that a company that generally has a much better track record on DMCA matters (and with FOSS projects) joined the recent onslaught of DMCA takedown notices against FOSS projects. Namely, GitHub announced yesterday that Google sent a § 1201 DMCA takedown notice for a FOSS project called widevine-l3-decryptor.

Google is the primary provider of browser-based DRM technology for nearly all of the well-known entertainment streaming services, through a product called Widevine. If you've watched a streaming video from a major provider (such as Netflix, Prime Video, and Hulu), then you've probably used Google's DRM. For the past two years, researchers have been in a DRM arms race with Google in cracking the lowest level (and lowest video quality level) of Widevine (called “L3”). The most recent crack inspired creation of a FOSS project, called widevine-l3-decryptor. If successfully integrated into browsers and other platforms, this new freely licensed code may well allow a 100% FOSS solution for viewing videos at this lowest level of DRM0. As always, though, DRM and software freedom remain on an irreconcilable collision course; the function of one always precludes the other.

If you just had déjà vu, it's likely because the narrative here resembles the story of DeCSS from about 20 years ago. The big differences are: (a) cracking L3 isn't as big of a threat to DRM technology (since it yields video output at very low quality), and (b) more importantly, and strangely, Google takes on the role of the MPAA in this repeat dance of DMCA history.

What Should Activists Do?

I admit that this situation kept me up half the night. My first thought was to come out blogging today that we needed to immediately institute a full boycott of all DRM, and the companies that produce it. Yes, a boycott would surely be effective, but it is effectively impossible. Seth Schoen, who has spent nearly a lifetime working to fight DRM, told me once that the talking point inside the industry circles in the early 2000s was: DRM is inevitable. Indeed, the media companies succeeded in inserting that phrase into culture, research circles, and everywhere else — so much so that it eventually became a running joke for activists.

We erred in our arrogant belief that DRM would remain clunky and rare. Media companies and their technology providers have laughed at us all the way to the proverbial bank. Then, the W3C and Mozilla Foundation capitulated with EME. Simply put, the boycott won't work now because DRM, along with the ubiquity of proprietary software in (at least as some component of) every popular platform means that DRM is seamless, easy-to-use, and rarely gets in the way of paying customers. We in fact tried, and mostly succeeded, in boycotting DRM when it was cumbersome, full of bugs, and annoyed users in the early 2000s. Today, most users of DRM don't even know it's there, or who provides it. While I'm not a user of browser-based streaming, I am still embarrassed to say that until yesterday I didn't even know Widevine was a Google product. I thought others were fighting the good fight against DRM and I mostly ignored it. But no one really is. DRM may not rule the technological world for software freedom activists who shun proprietary platforms. But it silently rules everyone else's tech world, and boycotting DRM effectively means boycotting most technology.

This led me to think of political polarization and a failure to compromise, and how it puts policy issues into gridlock. So, for a moment, let's step aside from our visceral negative reaction to 17 USC § 1201. Of course, we should never forget that § 1201 frustrates many Free Speech rights with respect to software in the USA; however, we also must admit that strategies until now have failed to repeal that abhorrent law. So, let's attempt for a few minutes to see the other side's position, as it might help us find other ideas to try while we wait indefinitely (22 years and counting ☹) for restoration of technological Free Speech rights.

Toward that mindset, consider that the copyright statute is ultimately a tool. We in the FOSS community created copyleft as a method to use that tool for good rather than ill. Meanwhile, the media and big tech companies lack any moral motivations on this issue, so they see this tool as merely a method to keep paying customers paying over and over again for the same content. It seems on the surface that there's no zone of agreement, but perhaps there is. Maybe we can agree, especially when we look back to the era of DeCSS, that §1201 is a tool so sharp that it instead became a clumsy weapon. Herein, I propose a compromise that slightly blunts §1201's sharpness. That compromise can be found by focusing on the consensus we already have regarding what parts of copyright that copyleft enforcement should avoid.

Short Term: Copyright Enforcement Parity

Two years ago, Google along with many other companies signed on to the IBM's Red Hat initiative and agreed to the RHCC. The RHCC is a pledge (similar to the KESAP, the latter of which we endorsed) whereby all copyright holders in GPL'd software agree to allow infringers 30 days to repair any copyright infringement consequence-free. During that 30 days, the infringer can continue acts of copyright infringement (e.g., violating the GPL) with impunity. On the thirtieth day, if the infringer achieves full compliance with the GPL, all is forgiven and no penalties are imposed.

While 30 days of unabated GPL violations are quite problematic and often result in thousands of customers remaining uninformed forever that their products contain copylefted software (and thus are possibly never informed that software freedom exists), GPL enforcers have always understood that it takes time for folks to coordinate a response and fix the situation. We have remained steadfast in our focus on beginning with friendly and respectful conversation with any infringer. We never demand immediate injunction; in fact, we usually don't even request one for about 120 days or more. By contrast, DMCA takedown is the exact opposite approach. Takedowns are unwarranted for FOSS projects that develop and operate transparently in the open and facilitate important work for the public good.

Thus, I hereby call on all these companies who signed onto the RHCC to agree immediately to the following pledge:

We agree that regarding any and all alleged copyright infringement committed by any software project that is licensed under (or intends to license under) an OSI-Approved License, that we will give notice to the project, and take no action of copyright enforcement (including but not limited to DMCA takedown) for at least 30 days from the date of notice of our concerns made to the project.

I will be writing to my contacts at all the companies who signed onto the RHCC to ask them to sign onto this provision as well.

Medium and Long Term Solutions

An agreement to slow the rising DMCA takedown onslaught won't actually solve the scourge of §1201. But it can raise awareness. We live every day under unreasonable restrictions from the DMCA and similar laws worldwide. We sometimes forget the urgency of this problem, but this fall's reemergence of the DRM wars should remind us that we must regularly discuss concrete ideas for response. Over the coming weeks, I'll be blogging more on the topic with more ideas to address this problem. In the meantime, I hope I've inspired some of you to propose ideas on how to respond in this struggle, and please do share this post and the request above on social media and any other fora you frequent!


0Google does claim, without evidence (presumably because DMCA doesn't require Google to provide evidence at this stage of the process), that some of the files in the project were copyrighted by Google and therefore not licensable as FOSS. If true, Google would also have a more mundane copyright infringement allegation unrelated to §1201. However, recall that it's typical for pro-DRM organizations to (incorrectly) claim that databases of keys or even keys themselves are independently copyrightable, and we strongly suspect that's occurring here.

Tags: conservancy, licensing, software freedom for everyone

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