7

With free licenses, one cannot restrict who or how the software is used.

Suppose that I construct a license that says:

If you are not Steve you are permitted to license under A; if you are Steve then you are permitted to license under B.

Where A and B are both terms that, when considered in isolation, would be free/open.

This means that the software is freely available to everybody at any point, but the exact terms discriminate based on some arbitrary criterion (let's pretend the "you are Steve" part is legally unambiguous).

Is such a license still considered free? Or open source? Both? Neither?

To clarify, because this is indeed a bit confusing:

  • This license is not dual licensing; not everyone can license under terms A, nor B; the licensor does not choose which terms to abide, it is dictated by the license itself
  • The license itself does not give the right to relicense; a not-Steve cannot fork and redistribute under terms that grant a universal license under A, even to the Steves, and vice versa. The discriminatory mechanism remains, that is, if Steve licenses from not-Steve, then he must follow terms B.
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    Please do not change the question in a way that makes answers already given invalid. This is known as chamelon question and it is depreciated. – Free Radical Jul 16 '15 at 3:47
  • @FreeRadical I wasn't clear enough with the initial wording, and that's not the question I wanted to ask as it's not very interesting, since as you've stated, it can be trivially worked around after one "generation" of derivatives. However, I think your first answer is still useful for addressing this point, so you may want to state that in your answer if you decide to keep that part. Sorry for the confusion! – congusbongus Jul 16 '15 at 5:45
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    This post was mentioned in the following meta post: meta.opensource.stackexchange.com/questions/403/… – Zizouz212 Jul 16 '15 at 5:46
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    Your terms are contradictory. In your last bullet point, you say: "a not-Steve cannot fork" and "Steve licenses from not-Steve, then he must follow terms B". However, not-Steve are only permitted to use license A. If he cannot fork, (and the same applies to Steve), then Steve cannot license from non-Steve, since switching to B would constitute a fork. (This contractiction was missing from the original question, which was much clearer than this new version.) – Free Radical Jul 20 '15 at 6:04
10

The answer is "no".

While the new license you've constructed has at is basis two well-known free licenses, it is still a different license and it obviously fails the the Open Source Definition:

The license must not discriminate against any person or group of persons.

Apart from the definition, something should also be said of the problems this "license" will create for the community:

To recapitulate: "not-Steve" is only permitted to license under license "A", and "Steve" is only permitted to license under license "B", where "A" and "B" are terms from well-known free licenses, but where the terms in addition calls for continuation of the discrimination.

I.e. each derivative can only have one of the two licenses, so this is not dual licensing, where downstream recipients can choose between the licenses. Provided the terms of "A" are not compatible with the terms of "B", the initial discriminatory license has now forced the project to fork, which is considered harmful.

So such a license both conflicts with the OSI definition of Open Source, and is having the harmful side-effect of forcing developers to create non-compatible forks. For these reasons, such a license should be classified as non-free.

  • There is only one license in question, which discriminates. It doesn't mean the license transforms into a new license A or B when it is licensed. So if not-Steve licenses, which is in turn licensed by Steve, not-Steve must abide by A, and Steve must abide by B, and the license is the same throughout. Please see edit; it's a bit confusing I know. – congusbongus Jul 16 '15 at 3:41
  • Not as the question was initially written. (However, I've changed my answer to fit your new question.) – Free Radical Jul 16 '15 at 3:45

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