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Re: Is this license DFSG free?

On Wednesday 15 June 2005 07:41 pm, Glenn Maynard wrote:
> 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.

Ah, but here is the central point of contention with regards to identification 
and mandatory contribution.  The crazy "Base Public License" makes no 
restriction on 'use' nor does it require identification for use.  In fact, it 
doesn't even require identification when you modify, only when you seek to 
distribute that modification.

Given that we are all concerned about copyrights and having proof that the 
code is free and not ripped off from SCO or whoever, identification seems to 
be a worthy goal of free software, which must be balanced against certain 
privacy concerns.  All of this leads me to believe that the dissident test, 
while interesting, covers way too much territory and excludes licenses that 
should be considered free.  To which I will reiterate that I read the GPL 
requiring attribution with modification...  Mr. Suffield's statement that FSF 
says otherwise not withstanding [1].

> > 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.

Yes, a judgment call.  I think that's my point.  But with judgment comes 
discretion, not obstenence.  Is d-l being true to the DFSG when it takes 
hardline no-compromise positions like the dissident test?


[1] The FSF, as the holders of copyrights to a number of GPL'ed programs, can 
certainly make claims about terms with regards to those contracts.  However, 
its interpretation of the terms outside of those applications is irrelevant 
in court.  What matters is the intent of those entering into the contract.

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

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