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Re: non-enforcability of the BSD advertising clause

On Fri, May 09, 2003 at 02:25:38PM -0500, John Goerzen wrote:
> On Fri, May 09, 2003 at 11:43:52AM -0500, Branden Robinson wrote:
> > (a) [...] Commercial speech that is not false or deceptive and does not
> > concern unlawful activities may be restricted only in the service of a
> > substantial governmental interest, and only through means that directly
> > advance that interest."
> I would not be surprised to have a court hold that "restricted" in this
> instance applies solely to government restrictions, and that contractual
> restrictions (such as agreeing to a license) are still permissible, since
> nobody forced the company to agree to that restriction.

Yes, but unlike the "natural" rights that are guaranteed by the Bill of
Rights and which the Constitution was designed to defend, the privileges
that attach to copyright are granted wholly at the discretion of the
U.S. government.

By a similar token, private individuals or groups are allowed to
practice certain forms of discrimination[1].  Membership organizations, for
instance, may refuse to admit homosexuals or women.  If you're a
university who does that and receives federal funding, though, watch out
or you'll get hit with a Title IX lawsuit[2].

I do not see how copyrights and patents are not analogous to government
funding.  They are government-granted and government-enforced monopolies
of (potentially) great economic value.

> Using the broader interpretation, you would find, for instance, that NDAs
> are unenforcable.

NDAs are not grounded on copyright law.

[1] BOY SCOUTS OF AMERICA V. DALE (99-699) 530 U.S. 640 (2000)

[2] http://www.ed.gov/offices/OCR/docs/tix_dis.html

G. Branden Robinson                |    There is no housing shortage in
Debian GNU/Linux                   |    Lincoln today -- just a rumor that
branden@debian.org                 |    is put about by people who have
http://people.debian.org/~branden/ |    nowhere to live.    -- G. L. Murfin

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