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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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