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PROPOSED: the Dictator Test (was: Contractual requirements [was: request-tracker3: license shadiness])



On Fri, Jun 11, 2004 at 02:49:19PM -0400, Glenn Maynard wrote:
> On Fri, Jun 11, 2004 at 11:57:38PM +1000, Matthew Palmer wrote:
> > This comment has just clarified something that's been rattling around
> > half-formed in my head for a little while now, regarding Free licences.  I
> > don't know if it's been raised before, but I think it bears discussion:
> > 
> > "A licence cannot be Free if it disallows actions which, in the absence of
> > acceptance of the licence, would be allowed by Copyright law, or imposes
> > restrictions not present by Copyright law".
> > 
> > To put it another way (and closer to Brian's wording), if the licence isn't
> > simply a grant of permission but requires things of me which I would
> > otherwise be allowed to do, it can't be free.
> 
> As far as I (and d-legal, I believe) understand it, to disallow these
> things, you need to form a contract (an EULA).  Most restrictions which
> require this are non-free.
> 
> I wouldn't quite go so far as to generalize it to "all"; it's probably better
> to look at the restrictions on their own merits, which will usually also show
> them to be non-free (and in a more direct way than "this probably isn't
> enforcable under copyright law alone").  Attempting to go being copyright law
> is a good hint that something may be wrong, though.

The above did not get much discussion; I'd just like to AOL it, and
suggest that any license which attempts to prohibit that which would
otherwise be legal is non-free by definition.

Yes, this will vary by jurisdiction, but that is already true for many
of the decisions we have to make (crypto-in-main, the expiration of the
LZW patent, etc.).

We should come up with a name for this test.  Maybe the "Autocrat Test"
or the "Dictator Test"?  The copyright (or patent, or trademark) holder
does not get to make up his or her own laws?

-- 
G. Branden Robinson                |     Life is what happens to you while
Debian GNU/Linux                   |     you're busy making other plans.
branden@debian.org                 |     -- John Lennon
http://people.debian.org/~branden/ |

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