Ask HN: Is it legal for a software license to have terms based on race and sex?

https://news.ycombinator.com/item?id=9869925

by proveanegative • 11 years ago

23 28 11 years ago

news.ycombinator.com

The license that prompts me to ask this question is http://nonwhiteheterosexualmalelicense.org/. I found out about it through this HN story: https://news.ycombinator.com/item?id=9862362. At least one project appears to use it seriously rather than as a troll.

Could you run into legal trouble by having software with this license at work or sharing it with your coworkers?

proveanegative• 11 years ago

Clickable links:

http://nonwhiteheterosexualmalelicense.org/

https://news.ycombinator.com/item?id=9862362

caseysoftware2• 11 years ago

A license is simply a contract establishing the rules under which you can use, modify, distribute, etc so logically, it seems like you could put whatever terms you wanted. The Beerware license comes to mind in this regard - https://en.wikipedia.org/wiki/Beerware

Of course, since the non-white-hetero-etc license adds extra requirements beyond those in the GPL, it will not be accepted by the FSF as GPL-compatible. The Beerware license isn't either.

But what it really comes down to is enforcement. To fight misuse legally, you'd need a) a lawyer that'd take the case and b) a judge not to laugh you out of the room. But the Twitter mobs may be the preferred form of enforcement here anyway.

In a professional atmosphere, more and more companies have pre-approved licenses that are okay by default. By going with something non-standard, it means you'll need to get special permission which usually means legal review. I'd wager that most lawyers would discourage you from using this one.. just because it is ambiguous in enforcement, etc.

Further, if you tried to enforce this one within your company, someone would have to ask each of your employees their ethnicity and sexual orientation.. which opens up some HR issues. Imagine your boss saying "don't worry about this, you're gay so you can use it."

airza• 11 years ago

There are lots of things you can't put as terms in a contract. This is why we have contact law.

Frondo• 11 years ago

Just to be clear, you can put whatever you want into a contract. Whether it's enforceable, or would be immediately discarded as "not a valid contract clause," is the question.

The severability clauses are all about that--if some part of a contract is deemed unenforceable, the rest still holds, etc.

e1ven• 11 years ago

While you may capable of putting arbitrary restrictions into your license, both state and federal laws will trump your agreement.

If nothing else, I suspect that Title II of the 1964 Civil Rights act would interfere with a license attempting to discriminate using race.

caseysoftware2• 11 years ago

Yes, that's why I addressed "can you put it in" and "is it enforceable" as two separate aspects.

fiatmoney• 11 years ago

https://en.m.wikipedia.org/wiki/Shelley_v._Kraemer

Strongly implies such a license is unenforceable.

sneak• 11 years ago

Sex and race are protected classes. What if the license were just no-heteros?

jeffmould• 11 years ago

Some states have included sexual orientation as a protected class. Not sure how that would work with a software license though. But if state law says a customer walking into a store can't be discriminated against based on sexual orientation, I would think it would transfer to a software license in some way. If not I am sure there is some attorney somewhere looking to make a name for themselves that would be happy to make an attempt.

bradleyjg• 11 years ago

Shelley v. Kraemer, 334 U.S. 1 (1948) was a Supreme Court case that held that racially restrictive covenants (i.e. deed provisions that forbid transferring the property to a black person) were unenforceable as a matter of constitutional law. Similar logic would probably apply here.

KaiserPro2• 11 years ago

In the UK at least, you are not allowed to discriminate on the basis of colour, creed or sexual preference.

However one must demonstrate that said party has been disadvantaged.

For example if you say that women must use red font, and men must use blue. It is arguable that you are choosing a different path for each gender, but not causing more work for either side.

in the case of the nonwhiteetcetcetc license, you are allowing one group to potentially profit more from derivative works than the other. (one group is allowed to represent the work as their own, potentially allowing greater profits.)

However you'll have to prove it, which requires examples, or brilliant lawyers.

##Supplemental##

My personal feeling is that any discrimination, that is the deliberate act of choosing one type of person over an other, on the grounds of anything other talent for the position in question is wrong.

Having been parachuted into a position, not because of talent, but because of social engineering, allowed my peers to legitimately mark me out as not belonging. Ultimately did nothing to tackle the root cause, and possible re-enforced on both sides that someone like me is not meant to be in that position.

Social hacks are just that, nasty. tackle the cause not the symptom.

learnstats23• 11 years ago

However you'll have to prove it, which requires examples, or brilliant lawyers.

So this is awkward, because white heterosexual males have much better than average access to brilliant lawyers.

the deliberate act of choosing one type of person over an other, on the grounds of anything other talent for the position in question is wrong.

If you seek to be neutral in this way, even if you are successful, then you are allowing advantages from other sources to carry over. You are deliberately allowing white, heterosexual males to retain their existing advantages. You are not accounting for hidden, quiet, long-standing social engineering that is in favour of existing power structures. That is not neutrality.

KaiserPro2• 11 years ago

You need to read my post again, very carefully.

So this is awkward, because white heterosexual males have much better than average access to brilliant lawyers.

No, rich people have access to lawyers.

The inference of your remark is that: "all people other than what straight males are not talented enough." This attitude is re-enforced by "positive" discrimination. Its also pretty condescending, and is far more harmful than "I dislike you because you are Insert slur"

Let me illustrate Discrimination:

"you only got in because you are <insert type here> here have the shit jobs, deliberately designed to trip you up"

"Despite us being actively hostile to you, we expect you to 'fit in' with the team"

"We are going to bully you, however its not bullying, as none of us get hurt, only you. Therefore its 'banter'"

Those three examples are actually not the preserve of minorities, they are applicable to every section of society.

However Positive Discrimination fails to tackle the root cause, as I said in my original post. The root cause is the lack of access to education, and ignorance of others.

gambler• 11 years ago

If you seek to be neutral in this way, even if you are successful, then you are allowing advantages from other sources to carry over.

If you're hiring, other sources are none of your business. You have limited information and limited scope of responsibility. The only alternative to what KaiserPro described is subverting your position as an employer/interviewer to try to "correct" some general issues of your choosing by "reverse" discrimination. There are many self-evident problems with this.

Why should you as an interviewer act like some ultimate judge of privilege? How do you know it will help to solve the general issue? Why should the particular person you're interviewing be affected by what's effectively a stereotype? Not to mention that "reverse" discrimination is still just a form of discrimination, so you're effectively supporting it. If you're allowed to discriminate in the way of your choosing, how can you demand others to not to do the same?

That is not neutrality.

You're simply redefining the word to mean nothing and then using that to attack the concept it used to refer to.

6d0debc071• 11 years ago

If you seek to be neutral in this way, even if you are successful, then you are allowing advantages from other sources to carry over. You are deliberately allowing white, heterosexual males to retain their existing advantages. You are not accounting for hidden, quiet, long-standing social engineering that is in favour of existing power structures. That is not neutrality.

That's pretty much the definition of neutrality. You are not altering something for better or for worse. You're not on the side of equality, and you're not on the side of discrimination. It's pure and simply something that you've decided is not your business to address.

amelius• 11 years ago

On a related note, I find it rather awkward that software, and online services are allowed to discriminate by applying automated classifiers to datasets.

For instance, an insurance company could deduce from the fact that a person likes black music, that he is 2x more likely to be involved in an incident of some kind.

To me, it seems that this is a form of prejudice and discrimination, that, in real life, would not be accepted. So why do we accept it from these big companies?

And here comes the main point: this should apply even if "black music" is replaced by some trait that doesn't touch upon racism, and the company is not an insurance company but, for instance, an advertisement agency.

matteotom2• 11 years ago

It seems that it would be rather trivial to circumvent this:

1. Ask a friend who is not {male,white,hetero} to fork it on github

2. They make a small change

3. They change the license from this to MIT/BSD/GPL/whatever

Regardless of the legal status of the license, it only (ostensibly) has any effect on straight, white males who know only straight, white males.

(Also I find it mildly disapointing that it makes no mention of trans people, as a straight white trans man would also be "excluded" by this license)

xenophonf2• 11 years ago

You can't change the license terms of code that isn't yours. That's why relicensing efforts similar to those undertaken by VNC a while ago was such a big deal. The VNC people had to contact every contribute and obtain their permission to change the license of a core library to (IIRC) LGPL. Normally, when projects make licensing changes, it is only allowed because they have some kind of legal authorization (e.g., copyright assignments in contributor agreements).

xenophonf2• 11 years ago

Oh, I get it. The license terms might allow it. Hm, speaking from my position of great privilege an power, this license seems pretty silly. I mean, what's its point?

RRRA• 11 years ago

That said, if it is illegal to discriminate and it's the only clause that's blocking you and the licence is otherwise GPL/BSD like, well... I guess it'll be a short run in court.

matteotom2• 11 years ago

It states that (for non-white-hetero-males) there is no requirement to keep the license. I was under the impression that re-licensing is not such a big deal when the current license specifically allows it (such as this one does)?

delinka• 11 years ago

"You are asked as a courtesy to retain this license in any derivatives but you are not required."

Pretty much allows it.

brudgers• 11 years ago

Could you run into legal trouble

Talk to an attorney. Since laws vary, a local attorney is probably a good choice.

meira• 11 years ago

Well, basically, the license is open source for "minorities", free software to white hetero male. Which is better? :)

jeb_douche• 11 years ago

The real questions are how white, hetero and male are defined ? Is white defined using the pantone matching system, etc.

ivanhoe• 11 years ago

How exactly is this different than putting a "Juden Verboten" or "Whites Only" sign on a shop?

Ask HN: Is it legal for a software license to have terms based on race and sex?

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