Comment by pessimizer | Hacker News Reader

Comment by pessimizer | Hacker News Reader

I can't imagine that this would hold up in court. You might as well exclude blondes or people with a brother named "Mike." Just make it explicitly proprietary and give out free licenses to the people who meet your criteria. Or equivalently to this, include a promise in the licensing that you won't pursue license violations against people who meet X, Y, and Z criteria.

This license isn't about restrictions on usage, it's about restrictions on identity. It's deeply weird. Even stranger, despite the insistence that "fair" is a meaningful term in this license, the definition "A fair price is a fair market price for a fair commercial license." tells on itself. The clarification that it means "more than one customer not affiliated with the licensor has paid that price in the past year" at first glance seems unsatisfiable (under the license), because somebody has to be the first to pay that price, and at that point it wouldn't be "fair."

edit: In trying to ape FOSS licensing, it has confused itself. You don't have to ape FOSS.

I'm a bit uneasy about some things in this license (including the "fair" bit), but I doubt there's any legal problem with discriminating licensees based on revenue or head count. (Disclaimer: IANAL, etc.) Microsoft already does this with Visual Studio licensing -- the free "community" license explicitly restricts on both critiera:

https://visualstudio.microsoft.com/license-terms/mlt031819/

Will courts enforce Creative Commons NonCommercial licenses? How about educational-use-only terms, often discounted? Software companies that sell downloads and licenses self-serve, with differential pricing for customers in poorer countries?

If you want to throw shade on the basis of the law, please cite law.

Re: "fair" and similar terms, see https://en.wikipedia.org/wiki/Reasonable_and_non-discriminat....

The author is a lawyer, and appears to have experience in the space.

https://work.kemitchell.com/

I'm a friend of the author, as well as friends with (former) employees at some of his clients. I can vouch not just that he's a lawyer, but also that he has experience in the space. _A lot_ of experience in the space.

Why would it be legally invalid to exclude blondes or people with a brother named "Mike"? (Obviously it would be immoral and stupid, but that doesn't make such an exclusion legally unenforceable.)

It violates civil rights laws in the US, likely.

In the case of name/appearance, those things can be strongly correlated with protected categories like race and gender.

E.g. Consider a similar legal exclusion to only people called Nguyen or Mohammed or Singh.

California has the Unruh Civil Rights Act that applies to all commercial public accommodations which basically says "categorical discrimination of any kind is illegal". Saying "I won't do business with anyone named Mike" or putting up a "No blondes" sign is categorical discrimination.

I have no idea how that law would apply to this license though.

But I don't think people with a brother named Mike are a protected class according to the Unruh Civil Rights Act. Those are sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.

The text of the law reads:

> 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, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

The important part is "All persons ... are free and equal ... and are entitled to ... equal accommodations".

When you read it this way (which is how the courts read the law), the list is just illustrating some classes that might be discriminated against. It does not limit the classes merely to those listed.

That's not how you read legal text. You can't just omit parts of the law to fit what you want.

The alternative to my interpretation is "because there is a list, nothing not on that list is a protected class". That interpretation omits the parts of the sentence I highlighted as much as I omitted the list.

As you can see from links/quotes elsewhere in this thread, the caselaw agrees with me.

Unruh protected classes are: sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status [1]

Corporate status is not one of these.

[1] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...

Those classes are illustrative, not exhaustive

I don't see a single word in the operative part that suggests that the list is an inclusive list:

> (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, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

In interpreting statute, a list of things is generally assumed to be exclusive unless there are specific words that indicate it is to be treated as nonexclusive--and those words are missing here.

> The California Supreme Court has repeatedly "interpreted the [law] as protecting classes other than those listed on its face".[6] For example, even prior to the 2005 addition of sexual orientation to the law's list of covered classes, the Unruh Act had been "construed as protecting gays and lesbians from arbitrary discrimination",[6] such as in the case of Rolon v. Kulwitzky.[7]

https://en.wikipedia.org/wiki/Unruh_Civil_Rights_Act

Which part of the legal text indicates that?

Quoting the CA Supreme Court unanimous decision, In re COX, 1970 at https://law.justia.com/cases/california/supreme-court/3d/3/2...

> [3] The nature of the 1959 amendments, the past judicial interpretation of the act, and the history of legislative action that extended the statutes' scope, indicate that identification of particular bases of discrimination--color, race, religion, ancestry, and national origin--added by the 1959 amendment, is illustrative rather than restrictive. (Stats. 1959, ch. 1866, p. 4424, § 1.) Although the legislation has been invoked primarily by persons alleging discrimination on racial grounds, its language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments. Finally, in 1961 the Legislature substituted "all persons" for "all citizens" (Stats. 1961, ch. 1187, p. 2920, § 1) in order to broaden further the section and complete the consistent pattern of wide applicability of the section. [4]

All kinds of regulations have carveouts for small or family businesses. It's not legally discriminatory in the slightest.

Both of those are bad analogies for different reasons. I will limit myself to US law out of familiarity.

Excluding blondes is prohibited due to the 'protected category', which is sweeping, covering most personal characteristics which are inherent. For a role, and this broadly includes things like waitressing, these limits can be imposed, but not in this sort of general contract.

The problem with some "brother named Mike" contracts is that they're trying to get around some requirement to be general while targeting someone in particular. For most contracts you can in fact say, "anyone can use this except Anish Kapoor, because screw that guy" and that's going to hold up since refusing service or commerce outright to an individual is completely legal.

Is this definition of "protected category" in the license? Because hair color isn't generally protected in US law.

This question has been a) tried with some success against natural and locced hair in the US, and I wouldn't want to be a defendant in the no blondes case, and b) no. totally irrelevant. Hence I was saying it's a bad analogy, rather than a good one.

Are you a lawyer or have specific knowledge in this area?

This thing is weird enough to me that I'm not sure I'd have any idea, myself, and I've spent a good deal of time understanding and reading about copyright and licenses.

Usage in a commercial context is different from usage in a noncommercial context. This has nothing to do with indelible personal traits. It has to do with whether users can take advantage of certain terms of the license base on how they organize themselves and to what use they are putting the software.

All sorts of contracts and licenses treat commercial and noncommercial use differently. Look at game engines, graphics packs, etc. All sorts of software licensed to companies have discounts for certain sizes or types of business and per-user pricing.

> You might as well exclude blondes or people with a brother named "Mike."

AFAIU that would be perfectly legal in the USA.

You can't discriminate based on membership of protected classes, and the doctrine of "disparate impact" means you can't have an imbalanced impact against a protected class (even if unintentional!), unless there's a reasonable business case.

Excluding blondes has a disparate impact against race.

Excluding people with a brother named Mike can be argued to have a disparate impact based on ethnicity or national origin. Excluding people with a brother named Mike but with no restrictions on the names of their sisters might be discriminating based on sex. The condition is also more likely to exclude people with larger number of siblings, which could be argued to have a disparate impact based on religion.

Good point, thanks.

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