Re: TrueCrypt License 2.3
On Sun, 13 Jan 2008, Måns Rullgård wrote:
> >> 1. You may not use, modify, reproduce, derive from, (re)distribute, or
> >> sublicense This Product, or portion(s) thereof, except as expressly
> >> provided under this License. Any attempt (even if permitted by
> >> applicable law) otherwise to use, modify, reproduce, derive from,
> >> (re)distribute, or sublicense This Product, or portion(s) thereof,
> >> automatically and immediately terminates Your rights under this License.
> > This paragraph explicitly denies rights available under fair use or fair
> > dealing. Hopefully a non-op (?), but not good.
> If it were a contract, such a clause could be valid. Whether licenses
> like this are to be considered contracts is matter for debate.
Of course, the clause doesn't keep you from performing fair use. It can't.
What it does do, however, is say that if you attempt fair use, you lose the
rights the license grants and can *only* do fair use and nothing else.
I think this clause is self-evidently valid. Saying "we will only let you
distribute the program if you don't perform fair use" can't possibly be any
more invalid than "we will only let you distribute the program if you agree
not to pet any cats". It's making distribution of the program contingent on
limiting your otherwise legal actions somewhere else.
The fact that fair use is guaranteed by law doesn't make the clause invalid;
your right to keep your money is also guaranteed by law, but a clause saying
you have to give up some money to distribute the program is obviously legal.
This should, however, make the program non-free. A payment of "not exercising
fair use rights" is no more DFSG-free than a payment of cash.