Re: PROPOSED: the Dictator Test (was: Contractual requirements [was: request-tracker3: license shadiness])
On Wed, Jun 30, 2004 at 05:05:08PM -0500, Branden Robinson wrote:
> 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?
"Monty Python's Contractual Obligation Test"?
"You want me to stick that banana WHERE Test"?
"Hands off my code, man! Test"?
"Void Where Prohibited Test"?
"Go-go Gadget Arms Test"?
Practically, I think that the "Autocrat Test" name doesn't quite hit the
spot -- my first thought when you mentioned the names was some sort of
spinoff of the Dissident Test. Perhaps "Contractual Restriction" might
work, but (a) it doesn't have the snappiness of the other tests, and (b) it
only accurately describes the situation if you know that to give up rights
you need to enter into a contract (which is more fiddly than a permissions
grant, whichever way you look at it).
But in the absence of any better suggestion, I guess I'd say that "Autocrat
Test" is suitable enough. I wish I could capture the better name I've got
floating around in my head, though. Damn pesky ideas. Anyone got a
brainwave net I can borrow?
- Matt
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