Subject: RE: OSD#5 needs a patch?
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Thu, 9 Oct 2003 11:33:43 -0700

 Thu, 9 Oct 2003 11:33:43 -0700
Brian, 

Thanks.  I think a lot of your comments are valid.  I'd like to encourage
more comments from more people before I respond.  Believe it or not, in this
situation I'm not carrying water for any particular ideology and am trying
simply to act as a scribe with legal skills.  I'd seriously like to see us
clarify what we -- as a community -- mean by "discrimination" in ways that
lawyers won't find confusing or amateurish.  It is difficult for me, given
my personality, to strive for consensus without appearing to be domineering,
but I'll try.

By the way, the term "biological attribute" is not one I've seen in legal
writing before.  Here's how non-discrimination is defined in the California
Civil Code:

    51(b) All persons within the jurisdiction of this state are free and
   equal, and no matter what their sex, race, color, religion,
   ancestry, national origin, disability, or medical condition are
   entitled to the full and equal accommodations, advantages,
   facilities, privileges, or services in all business establishments of
   every kind whatsoever.

    51(c) This section shall not be construed to confer any right or
   privilege on a person that is conditioned or limited by law or that
   is applicable alike to persons of every sex, color, race, religion,
   ancestry, national origin, disability, or medical condition.

Of course, there's much more, including more categories of people singled
out for protection under California law, but why bore you with all that....
By coincidence, there's currently only one case I'm litigating in California
courts, and it happens to be a  51 case against a business establishment (a
nursing home) for discrimination in admission on the basis of sex (they
discriminated against a man).  :-)

/Larry Rosen

> -----Original Message-----
> From: Brian Behlendorf [mailto:brian@collab.net] 
> Sent: Thursday, October 09, 2003 9:02 AM
> To: Lawrence E. Rosen
> Cc: license-discuss@opensource.org
> Subject: RE: OSD#5 needs a patch?
> 
> 
> 
> On Wed, 8 Oct 2003, Lawrence E. Rosen wrote:
> > 6. Open source licenses may not discriminate against persons or 
> > groups, fields of endeavor or types and brands of technology.
> >
> > Proponents of open source software insist that software not be a 
> > battleground on which political or philosophical or 
> business wars are 
> > waged. In many jurisdictions around the world, 
> discrimination on the 
> > basis of race, age, religion, national origin, sex, sexual 
> > orientation, health status, and other personal characteristics is 
> > always illegal.  This open source principle is intended to 
> extend that 
> > broad list, not to replace it.  To be consistent with this 
> open source 
> > principle, all terms and conditions of the license must 
> demonstrably 
> > encourage rather than discourage software freedom for all licensees.
> 
> My concern is that even with the explanation, simply stating 
> that the license "must not discriminate against persons or 
> groups", without explaining the *basis* on which the license 
> must not discriminate, is still too vague, as nearly any 
> criteria one could put in a license leads to a 
> "discrimination" between one party and another.
> 
> I think we need to be specific about what basis a license is 
> not allowed to "discriminate" against.  It's not hard.  
> Furthermore the rule should be able to stand on its own when 
> analyzing a license and not require the
> explanation to get the complete picture.   A suggestion:
> 
>   Open source licenses must not deny any part of the license 
> to any person
>   group based on that person's or group's vocation, 
> nationality, language,
>   name, age or any other biological attribute.
> 
> I think this captures the intent behind the original example 
> ("This software may not be used by the South African 
> Police").  I think "vocation" is a much better term for this 
> purpose than "fields of endeavor", for I may "endeavor" to a 
> business model that requires me to combine GPL and proprietary code.
> 
> Your example also included "types and brands of technology".  
> Is an application that attempts to link to a GPL'd library a 
> type of technology? I think licenses that would seek to block 
> specific companies, e.g. "no one from IBM may use this 
> software" would be prevented by the "group's name" term.
> 
> I echo the other comments that state that existing OS license 
> *have* been used to promote specific political or economic 
> philosophies, by favoring specific definitions of software freedom.
> 
> 	Brian
> 
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