8 ms·

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

23 points by proveanegative 11y ago

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 11y ago
Clickable links: http://nonwhiteheterosexualmalelicense.org/ http://nonwhiteheterosexualmalelicense.org/ https://news.ycombinator.com/item?id=9862362 https://news.ycombinator.com/item?id=9862362
caseysoftware 11y 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 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 11y ago
  There are lots of things you can't put as terms in a contract. This is why we have contact law.
  - Frondo 11y 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 11y 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.
  - caseysoftware 11y ago
    Yes, that's why I addressed "can you put it in" and "is it enforceable" as two separate aspects.
fiatmoney 11y ago
https://en.m.wikipedia.org/wiki/Shelley_v._Kraemer https://en.m.wikipedia.org/wiki/Shelley_v._Kraemer Strongly implies such a license is unenforceable.
- sneak 11y ago
  Sex and race are protected classes. What if the license were just no-heteros?
  - jeffmould 11y 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 11y 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.
KaiserPro 11y 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.
- learnstats2 11y 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.
  - KaiserPro 11y 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.
amelius 11y 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.
matteotom 11y 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)
- xenophonf 11y 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).
  - xenophonf 11y 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 11y 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.
  - matteotom 11y 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 11y ago
    "You are asked as a courtesy to retain this license in any derivatives but you are not required." Pretty much allows it.
brudgers 11y ago
Could you run into legal trouble Talk to an attorney. Since laws vary, a local attorney is probably a good choice.
meira 11y ago
Well, basically, the license is open source for "minorities", free software to white hetero male. Which is better? :)
jeb_douche 11y ago
The real questions are how white, hetero and male are defined ? Is white defined using the pantone matching system, etc.
ivanhoe 11y ago
How exactly is this different than putting a "Juden Verboten" or "Whites Only" sign on a shop?

proveanegative 11y ago

Clickable links: http://nonwhiteheterosexualmalelicense.org/ http://nonwhiteheterosexualmalelicense.org/ https://news.ycombinator.com/item?id=9862362 https://news.ycombinator.com/item?id=9862362

caseysoftware 11y 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 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 11y ago
There are lots of things you can't put as terms in a contract. This is why we have contact law.
- Frondo 11y 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 11y 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.
- caseysoftware 11y ago
  Yes, that's why I addressed "can you put it in" and "is it enforceable" as two separate aspects.

fiatmoney 11y ago

https://en.m.wikipedia.org/wiki/Shelley_v._Kraemer https://en.m.wikipedia.org/wiki/Shelley_v._Kraemer Strongly implies such a license is unenforceable.

sneak 11y ago
Sex and race are protected classes. What if the license were just no-heteros?
- jeffmould 11y 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 11y 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.

KaiserPro 11y 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.

learnstats2 11y 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.
- KaiserPro 11y 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.

amelius 11y 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.

matteotom 11y 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)

xenophonf 11y 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).
- xenophonf 11y 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 11y 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.
- matteotom 11y 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 11y ago
  "You are asked as a courtesy to retain this license in any derivatives but you are not required." Pretty much allows it.

brudgers 11y ago

Could you run into legal trouble Talk to an attorney. Since laws vary, a local attorney is probably a good choice.

meira 11y ago

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

jeb_douche 11y ago

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

ivanhoe 11y ago

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