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Re: Is this license DFSG free?

On Wed, Jun 15, 2005 at 03:18:39PM -0700, Sean Kellogg wrote:
> 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.

Although I don't know the full rationale behind this, I don't think this
is a useful approach for free software, because 1: we never know the intent
of the person using/drafting the license (people are not obliged to tell us
their ulterior motives), and 2: we are, in fact, interested in the real
effects licenses have on users and free software, not just the effects that
were intended.  A license that ends up being onerous in practice is non-free;
the good intentions of the drafter are irrelevant.

That said, it's usually a bit of a leap to call "discrimination" on a
license clause, since on one hand, there's usually some underlying freedom
that the person actually has in mind; and on the other hand, every
restriction imaginable can be phrased as "discrimination".  The "chinese
dissident" test is useful, but "freedom to use software without identifying
yourself to a third party" underlies it; the "dissident" case is just one
example of *why* that's important.

> 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?

Yep.  That's not outrageous.

It's a judgement call: is the effective discrimination balanced by its
practical effect on free software?  In the case of the GPL, at least, the
answer has been "yes".  Some people say, "but the DFSG doesn't have a
subclause explicitly allowing such a judgement call!", but those people
are just pretending the DFSG are something other than Guidelines.

Glenn Maynard

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