

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

The license that prompts me to ask this question is http:&#x2F;&#x2F;nonwhiteheterosexualmalelicense.org&#x2F;. I found out about it through this HN story: https:&#x2F;&#x2F;news.ycombinator.com&#x2F;item?id=9862362. At least one project appears to use it seriously rather than as a troll.<p>Could you run into legal trouble by having software with this license at work or sharing it with your coworkers?
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matteotom
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
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).

~~~
matteotom
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)?

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KaiserPro
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 nonwhite _etcetcetc_ 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
> 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.

~~~
gambler
_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.

~~~
learnstats2
> That is not neutrality. You're simply redefining the word.

The first definition of neutrality found on the internet is

 _Not aligned with, supporting, or favoring either side in a war, dispute, or
contest._

I'm using that definition. By claiming that this is none of your business and
you have limited scope of responsibility, you are very clearly favouring one
side.

You do have responsibility for who you choose to hire.

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

~~~
jeffmould
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.

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bradleyjg
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.

------
proveanegative
Clickable links:

[http://nonwhiteheterosexualmalelicense.org/](http://nonwhiteheterosexualmalelicense.org/)

[https://news.ycombinator.com/item?id=9862362](https://news.ycombinator.com/item?id=9862362)

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

~~~
Frondo
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.

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amelius
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.

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

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brudgers
_Could you run into legal trouble_

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

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

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

