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Re: FWD: Analog licence violates DFSG

This has always been a stone in my craw: why should a "keep it
legal" clause make it non DFSG free?  Contracts (licensing
agreements) may not cover illegal actions: a contract to perform an arson
is null and void regardless of the wording of the contract.  So logically,
a contract that has a "keep it legal" clause is simply making explicit
what is already implicit in most every jurisdiction: the common law
idea that illegal actions void contracts.  Logically, if a "keep it
legal" clause makes a license non DFSG free, under common law NO license
is DFSG free, since all contracts are voided once the law is broken.  In
Henning's hypothetical, if the free country that the person escaped to
was a common law nation, the license was voided during the illegal act, so
they're up for copyright infringement no matter what (whether the
copyright holders know this or would do anything about this is another
matter).  This is one of the few places where the DFSG fails the sanity
test, and the worst part about it is that there is nothing explicitly in
the DFSG that is the offender, just an interpretation.  Either the DFSG is
overbroad or we should really do a stricter parsing of the DFSG.  

On 13 Sep 2000, Henning Makholm wrote:

> Scripsit Brian Behlendorf <brian@collab.net>
> > On Tue, 12 Sep 2000, Joey Hess wrote:
> > > 1.Any action which is illegal under international or local law is
> > > forbidden by this licence. Any such action is the sole
> > > responsibility of the person committing the action.
> > > This provision of the licence blatently violates section 6 of
> > > the DFSG which states:
> > I don't follow; maybe I'm just being dense, but section 1 seems like a
> > no-op to me,
> It is not. Consider this scenario:
> A is a citizen of [insert your favorite evil oppresive police state].
> He happens to use this software to speek his mind against the
> government, is persecuted by the authorities but escapes narrowly to
> the free world. All is well, or not? No, because he not only broke
> the local laws, he also broke the license of the software. Then
> the author of the software might sue A for breach of contract, even
> though A is outside of the jurisdiction of the local laws that he
> broke originally.
> That certainly discriminates against fields of endeavor, namely
> against any field of endeavor that is illegal anywhere.
> > a cover-your-ass by the attorney who wrote it to cover the
> > case where a jurisdiction may decide that another clause in the license
> > contradicts some law somewhere, thus rendering the license void
> That is a possible explanation of what they *thought* they wrote,
> but is not what they *actually* wrote. A much better wording would
> be:
> | Licensee takes note that local laws may limit his exercise of the
> | rights granted by this License Agreement. Licensor does not
> | encourage the any activities that are against applicable local
> | law, and assumes no responsibility for any consequence of such
> | actions.
> This would be DFSG-free.


You have paid nothing for the preceding, therefore it's worth every penny
you've paid for it: if you did pay for it, might I remind you of the
immortal words of Phineas Taylor Barnum regarding fools and money?

Who is John Galt?  galt@inconnu.isu.edu, that's who!

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