The Free Software Movement and the New Form of Labor

by May 1, 2019

The Origins of 996.ICU

996, 9 a.m. to 9 p.m., 6 days a week. ‘996’ became the unofficial working schedule in many Chinese tech companies, including tech giants like Baidu, Tencent, and Alibaba (BAT) in recent years. Such inhuman work schedules has led to much suffering, with some tech sector employees ending up in intensive care units or, tragically, committing suicide. As China’s economic slowdown alarms investors, these grueling work conditions have only gotten worse. Many tech companies have undergone layoffs to remain competitive, forcing their remaining employees to work extra hours.

A movement is starting, however, to do something about this abuse. Programmers on V2EX.com (a programmer-oriented forum in China) made up the word 996.ICU. Their conditions were condemned for their flagrant violations of China’s labor law and toll on employee health. On March 26, an anonymous programmer created the 996.ICU repository on Github with a newly registered account, and launched the http://996.icu website. Since then, the “996.ICU” movement has made major headlines and caught the attention of programmers and tech-engaged parties around the world.

Rapidly, programmers from all over the world joined the project on GitHub. Within a week, the 996.ICU repository received 100,000 GitHub Stars (compared with around 70,000 Stars for Linux). The repository features information about working conditions, legal information, a whitelist (Work Life Balance List), and a blacklist for companies. This distributed network of programmers and sympathizers has completed the evidence collection (from media report, local government decisions, etc), submission (using GitHub’s pull request function), voting, and decision (using Emoji function in GitHub’s comment & pull request) process all on GitHub, which enables them to update the lists very efficiently. This is an early prototype of autonomous organization. Due to limitation on his/her availability, the maintainer of the repository rarely participates in the compiling of lists. Instead, he/she mainly relies on contributions from the community to complete the whole project.

(Example of company trying to get their names removed from the blacklist)

The blacklist created some deterrence for companies that do not comply with China’s labor laws. Some companies, such as ByteDance, even try to get their names removed from the blacklist. However, since the blacklist is monitored and managed by the whole community, if a majority of community members do not agree with removal or do not believe the evidence submitted for proof of innocence, it will only put these companies in a more awkward situation. For example, the community found that some companies are forging evidence) just to get their names off the list.

Example of company trying to get their names removed from the blacklist

The Anti-996 License: An Ethical Software Development License

Nevertheless, blacklists and whitelists alone cannot solve the essential problem, that is, detering those companies who implemented the 996 working hours from violating labor laws. For example, if all the well-known tech companies are on the blacklist, then for job seekers, they have no other way but to accept the dreaded 996 work culture.

After the advent of the blacklist and whitelist (955.WLB: Work Life Balance List), GitHub user xushunke proposed a new issue on March 28: Design A Software License of Labor Protection.

“Create a license, such as MIT License, that can only be used by non-996 companies. In this way, good projects in the future can use the license to prevent 996 companies from using them.”

But drafting an open source license is a very complex issue. On March 28, the first draft uploaded after the issue was proposed had only three lines:

The drafting of license has aroused my interest. Anyone who is familiar with the history of FOSS movement will never forget the huge impact of open source licenses and communities, such as Linux and Netscape/Mozilla on Microsoft, the then monopoly company – open source license and community can exert far more power on the industry than we think.

On the morning of March 30, I told my wife Katt Gu in detail about the drafting of the Anti 996 License. She acquired her Juris Doctor degree from University of Illinois, Urbana Champaign, with a focus in legislation and regulation in high-tech industry. On the same evening, she spent around seven hours drafting the current version of Anti 996 License. The full text of License v. 1.0 is as follows:

On March 31, Katt and I submitted the draft license through a Pull Request, and it was soon merged into the main repository after a few rounds of discussion. On April 1, Katt translated the license into simplified Chinese for effectiveness of implementation and ease of understanding and distribution in China. To our surprise, a fairly large number of programmers have begun to add the anti-996 license to their own open source projects after the Chinese version released. According to the records, hundreds of projects have now officially adopted
the anti-996 license, including some with tens of thousands of stars and projects actually adopted by commercial companies.

The rise of 996.ICU has caught a flurry of media attention. Multiple state-owned media, including People’s Daily have stood out to lambaste both 996 culture and its defendants. On April 4, Wired has published an article on how the Anti 996 License can be used to improve the working conditions for programmers and why open source protocol experts believe that Anti 996 License may not be an open source software protocol approved by Open Source Initiative, and the article has become the headline of the day. A Wikipedia page for anti 996 License has also been created a few days later. Nevertheless, disagreements began to arise among the community as to whether anti 996 license is an open source software license or a free software license, or neither.

As the definition of “open source” by the Open Source Initiative points out, an “open source software” should not “restrict anyone from making use of the program in a specific field of endeavor”. However, there are also some attempts in the past to combine ethical principles with open source license, such as the one drafted by Douglas Crockford, the creator of JSON, which specifically says “the Software shall be used for Good, not Evil”. Perhaps, a better name for these kinds of license is the Ethical Software License.

As stated in README of 996.ICU Repo, “It is a great progress from closed source to open source, and it will also be a great progress from open source to emphasizing labor rights at the same time. What we want is to create an open source license that advocates workers’ rights”, undoubtedly, although anti 996 license may not fit into the definition of “open source license”, and it is in a quite different form from traditional open source licenses such as MIT and GPL, it is an inheritance and embodiment of the spirit of FOSS movement. In countries with seriously overworked cultures, such as China, India and Japan, the general public may care more about labor protection and preventing enterprises from internalizing crazy hours as norm. In Europe and the United States, data protection and privacy may be more of a concern, but the relationship between labor and data is inseparable, which is why an Ethical Software License, if designed and implemented properly, can further integrate these issues and advance worker dignity.

 

Real World Practices of Ethical Software License

As mentioned above, before the occurrence of Anti 996 License, there were also many other software licenses that are designed based on ethical principles or incorporate legal/compliance considerations (such as JSON License and HESSLA License). But in practice, these licenses face huge difficulties in actual implementation, because it is difficult to imagine that, for example, a court will decide to compensate the copyright owner or stop the infinger from using the software because of JSON License’s “No Evil” clause (since it is impossible to precisely define what is “evil”).

For the Anti 996 License, it is very important to ensure enforceability, at least theoretically, otherwise the license will not be able to deter large companies from violating labor laws. Fortunately, labor protection has been a topic of discussion for more than a hundred years – principles such as “eight-hour workday” and “equal pay for equal work” have been written into relevant frameworks and conventions of International Labour Organization and WTO and are agreed and accepted by almost all of the countries in the world. However, in the era of globalization and informatization, the traditional means of labor protection are facing great challenges, for example, the new form of colonization through capital investment overseas. Here, anti-996 License is trying to solve these problems more or less via industrial standards, that is, software license, as such problems are especially apparent in high-tech industry.

Although the whole Anti 996 License is still a prototype and is far from achieving its ideals, the notion of introducing copyrights into labor relations would undoubtedly have strong deterrent effects on companies that practice 996 working schedule. Suppose that the number of open source projects that use the Anti 996 license has reached 1/100th of the number using the MIT license, then once the employee initiates an arbitration or litigation against the company for labor law violations, or report to the copyright owner or relevent industrial associations, the penalties faced by the company will include not only compensation for a single employee but also statutory and sometimes punitive damages for copyright infringement, which typically would be much higher. In such a way, the power of technical workers in the social relations of production can be greatly enhanced and strengthened through open source license and the power of the community (which is very similar to declaration of labor rights and labor union in old times), and the technical practitioners can from all over the world can easily form a united whole.

The following picture shows how Anti 996 License expands the dimension of labor relations (thanks to Shi Yuhang, ESQ.)

Traditionally, a labor dispute, whether it is concerning fringe benefits, hours of work or wages, would mainly involve the employer and the employee, and the labor administration department sometimes. As 996.icu is in essence a wage-and-hour dispute, it still fall within the scope. However, as we see, there is a natural gap in the status between the employer and the employee, and the effect of the supervision by the labor and security administration department is not necessarily effective.

The “Anti 996 license” expands the dimension of labor relations and introduces the copyright owner into the labor dispute. Open source license is essentially a conditional license, and the law does not prohibit adding terms related to compliance with labor law into intellectual property licensing agreements. Therefore, with the “anti-996 license”, the copyright owner has now been added to the tripartite relationship, which may be able to exert tremendous power and change the imbalance of power in labor dispute. For example, if the “software trolls” (such as members of the Software Alliance) begin to adopt the license, the 996 companies may face a series of lawsuits.

Similar logic can be used in other possible examples of ethical software licenses, such as by incorporating data protection-related clauses into open source license, extending high-standards of privacy protection from jurisdictions with stronger legal codes globally. Of course, this approach may also lead to new forms of “patent troll” or short seller. For instance, such entities may acquire the patents and copyright of some commonly used open source software and use infringement lawsuits to profit or stifle competition as big companies are afraid of ethical scandals – which will eventually turn the whole system into a zero-sum game (this part is similar to the problem that traditional trade union/labor union may face). What should have been used to prevent and punish evildoers may end up being a competition of commercial forces, and although lawsuits may prevent companies from breaking the law, both sides of the lawsuit may also be large companies – which not only hinders innovation, and the actual victims, the workers and users, won’t be able to get a fair share of the damages or the compensations ordered by the court.

For startups or open source communities in their early stages of development, the actual cost of enforcing their rights (or helping other developers to protect interests) is not low, and it is necessary to rely on external funding or assistance. However, how to raise and manage the money for lawsuit, how to balance the loss of employees/users and copyright owners, as well as how to distribute the profits to hundreds of contributors – may be a big problem for traditional organization management method, but the new form of organization, DAO, may solve this problem.

 

Capital Colonization, and Uniting the World’s Workers

The whole Anti 996 License is designed based on MIT License, with only three main clauses. The first is the standard clause of all open source license, that is, the notice requirement, while the second and the third are very different from the loose, permissive MIT license. There are some interesting designs in these clauses that can systematically enhance the means of workers to safeguard their legitimate rights and interests.

The second clause of the Anti-996 License stipulates that companies using software must abide by local labor laws; if they are multinational corporations, they must abide by the stricter labor laws of various countries. In areas and countries where labor laws are not perfect or unenforceable, companies must abide by the core conventions of International Labor Standard. This is mainly to prevent the so-called “capital colonization” phenomenon.

The specialty of IT/software industry is that it is very easy not only to transfer capital but also to transfer the fruit of labors, that is, the software or the source code, across borders. Traditional light industry, such as cosmetics and food industries, may incur huge logistics costs, compliance cost, tariff, etc. in the process of shipping the products or moving the production line to other countries, but it is difficult to collect tariffs on the import and export of intellectual property (for example, the WTO exempts the import and export of software from tariffs). This is especially the case for IT / software industry. The work product of software companies are mainly in the form of software or source code, whose transfer and replication have almost no cost. Therefore, the executives in those companies would have more incentives and conditions to transfer production to places where costs are lower and regulations are weaker. For multinational companies that are cost-conscious, they would have a strong incentive to hire programmers in places where labor laws are less stringent, while exporting labor outcomes to markets where labor protection is more stringent at almost no cost.

Traditional methods of labor protests are of little use in this case, because the cross-border movement of labor itself will be much more difficult than the movement of capital and fruits of labor such as intellectual property, and if the barriers to software itself are only the languages and cultures of different countries, we can hardly prevent “capital colonization”. Even in cases where the products or services are unable to enter a market due to linguistic/cultural difference, these tech giants and the investors behind them will be able to bypass the hurdles, entering the market through other means, such as co-founding a branch with local partners or investing in local start-ups. Maybe big companies will consider setting up “ethics committees” in countries where the laws are more stringent, but if they are only doing investment-related business overseas, for example, they become limited partners of US dollar VCs in China, they will probably not conduct strict compliance audit on the companies they invested. In such way, these multinational companies, as shareholders, won’t be held responsible for violations of local laws, and they can reap huge benefit from the global “race to the bottom”.

This point is also mentioned in the open petition letter from Microsoft and GitHub employees supporting 996.ICU:

In response to these events, we, the workers of Microsoft and GitHub, support the 996.ICU movement and stand in solidarity with tech workers in China. We know this is a problem that crosses national borders. These same issues permeate across full time and contingent jobs at Microsoft and the industry as a whole. Another reason we must take a stand in solidarity with Chinese workers is that history tells us that multinational companies will pit workers against each other in a race to the bottom as they outsource jobs and take advantage of weak labor standards in the pursuit of profit. We have to come together across national boundaries to ensure just working conditions for everyone around the globe.

Another problem is that penalties for non-compliance with labor law are not uniform in different countries, and the ordinary penalties for violation of labor law are not effective compared with the huge amount of financing and income of tech oligarchs adopting the 996 work system on a large scale. The intricate relationship among major technology giants through cooperation, investment and mergers and acquisitions make it more difficult for individual workers to protect his or her rights against these technology giants. Once they initiate a lawsuit or arbitration, it is difficult to ensure that they are not retaliated, and they will encounter problems in their future career. Therefore, in the third part of the license, it emphasizes that enterprises should not force or induce employees to sign any “striver agreement” to voluntarily abandon their rights and interests in labor law, and that the confidentiality agreement of companies can not prevent employees from defending their rights. This prevents the possibility that employers strongarm employees from seeking recourse to the local government and regulatory authorities, or reporting the infringement to copyright owners of open source software using the anti 996 license.

A possible way of balancing the inequities mentioned above is to unite the technical workers around the world in an organized and purposeful way to achieve some common goals, and gradually make such principles become the industry standards in certain fields. From Linux, the open source operating system, to Bitcoin, the open source P2P electronic cash system, all adopt the same methods. Once these software can give up the traditional “commercial interests” and do not set any threshold for usage (for example, anyone can install and rewrite Linux as long as they abide by the agreement; anyone can run bitcoin nodes as long as they agree with the “consensus”), after they reach the level of self-sufficiency, the agreement or consensus they follow will spread to other projects and even become essential for the industry — these community rules/traditions, like the new international industry norms, can protect every individual developer. The failure of commercial companies to comply with these rules will lead to a division of community, a sharp increase in the maintenance and development cost, a decline in the use value of forked versions, and even infringement litigations with huge damages.

 

Conclusion

It is our hope that the Anti 996 License not only opens up new avenues by which companies can be held responsible for violations of the rights of labor, but presents a new tool for digital labor relations. The digital economy has presented new challenges to the power of labor, which require radical solutions and redress, and seeing data as the new labor will help workers better relate to current challenges. Open source licenses are a powerful tool, one that we hope to see adopted far more widely in the future.