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Re: Is this license DFSG free?

On Wednesday 15 June 2005 01:43 pm, David Starner wrote:
> > It is discrimination only if it relates to an intrinsic quality of an
> > individual or group, like "you cannot use this software if you are
> > black" or "you cannot use this software if you are the military".
> But not "you cannot use this software if you're Christian", since
> that's clearly not an intrinsic quality? What about "you cannot use
> this software if you aren't in North or South America"? There's a lot
> of hoops we could ask people to jump through, but that doesn't make it
> free.
> (BTW, being a military is not an intrinsic quality. Militaries become
> governments or terrorists or resistance groups all the time.)

I've been doing a lot of thinking about the issues of contribution and 
discrimination, and it occures to me that the issues d-l seems to be 
grappeling are not dissimilar to issues surrounding U.S. Supreme Court 14th 
Amendment jurisprudence.  For those non-U.S. folks, the 14th contains the 
equal protection clause, on which most of the U.S. non-descrimination laws 
are based.  The issue that often confronts the court is what exactly 
constitutes descrimination, with the most important issue being one of 

For example: if Congress passes a law instructing big polution spewing plants 
to be built on property with the lowest land-value, then that same law is 
going to put a lot of plants in areas where poor people live.  Does the law 
descriminate against poor people?  What if a law says that using a controlled 
substance is illegal, but a religion considers the drug to be an important 
part of their faith, does the law descriminate against that religion?

In both cases, the Courts have said yes, it is text book descrimination.  A 
group of people is being treated differently than others.  However, the Court 
says that while it is descrimination, it is not prohibited descrimination.  
The law itself is facially neutral and is not intended to descriminate 
against anyone, even though it ends up having a disproportional result upon 
certain groups.  It is a question of intent.

So, what does this have to do with Debian?  Well, DFSG #5 and #6 have been 
cited as backing the Dissident Test and as rendering manditory contribution 
clauses as non-free.  The dissident arguably is being descriminated against, 
but I would wonder if the descrimination is the kind the DFSG is really 
worried about...  not to make the DFSG the U.S. Constitution, but I think its 
worth asking, is the descrimination intentional?  For sake of argument, 
consider the following outragenous example:  doesn't the GPL descriminate 
against people who want to distribute modified code without providing the 
source code?  Sure seems to me that the BSD doesn't descriminate against such 
people...  but then again, the BSD descriminates against those who want the 
license to force them to distribute the modified source.  But I don't think 
the DFSG is all too concerned with such things...  where it would be very 
concerned with language prohibiting use of code by left-handed people.

Just some thoughts on the topic,

Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
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   ...it's all right
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