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Is it legal to have an "anti-exclusive" contract?

By anti-exclusive, I mean a contract that says, for example: "This software can be used on any platform EXCEPT for X"

For a real life example, would it be legal to create software and say it is available for any platform EXCEPT for, say, a specific Linux distribution?

In a broader sense, can somebody sell a product/service to everybody except for a particular person/group of people? I'm thinking this would be illegal due to discrimination laws, so wouldn't this be the case for the above example too?

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  • Definitions will be hard. What is a particuar Linux distribution and what amount of changes are needed in order to make it a different Linux distribution? My laptop runs Debian-based distribution that is not Debian. It contains a different MOTD generator. – fraxinus Nov 15 '20 at 19:07
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    It's more a matter of doctrine of first sale. Someone who directly transfers their purchase to the excluded party may be in breach of contract with you, if you actually had a contract as opposed to shrinkwrap nonsense, but that has no bearing on the originally-excluded new purchaser's ability to use what they purchased. – R.. GitHub STOP HELPING ICE Nov 15 '20 at 21:22
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    "I'm thinking this would be illegal due to discrimination laws, so wouldn't this be the case for the above example too?" Discrimination laws are the rare exception to the general rule that people have the right to pick and choose who they do business with. Since this isn't a group that has historically been unjustly oppressed, why would there be a law that makes an exception for cases like this? – David Schwartz Nov 17 '20 at 0:01
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Totally legal, as long as whatever you're forbidding isn't a protected class (race, gender, etc.—the details vary by jurisdiction), or, to some degree, a pretense for one.

A real-life example comes via a feud between two artists: Stuart Semple and Anish Kapoor. For reasons that are not particularly relevant to this explanation (other than perhaps that they are unrelated to Kapoor's membership in any protected class), Semple strongly dislikes Kapoor, and has made one of his products available to purchase...as long as the purchaser agrees that they are not Anish Kapoor, that they are not an associate of Anish Kapoor, and that they do not have any reason to believe that the product they are purchasing will make its way to Anish Kapoor.

The product page contains the following terms to accomplish this:

Note: By adding this product to your cart you confirm that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make its way into the hands of Anish Kapoor.

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    I'm not sure I'd agree with your assertion that the reasons aren't relevant, because the way you're framing this without context it looks like Mr. Semple just decided out of the blue to be an asshole to Mr. Kapoor. – Shadur Nov 15 '20 at 9:23
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    @Shadur IIRC, the reason was that Anish Kapoor bought the exclusive rights to use vantablack (the darkest black pigment ever created) in artwork from the scientists who invented it (they originally created it for engineering optically-sensitive systems, IIRC), and then refused to share it to the rest of the art community. When this guy made a "pinkest pink", he banned Mr. Kapoor from using it in retribution. – nick012000 Nov 15 '20 at 9:52
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    @Shadur: Further to what @ nick012000 writes, Semple’s clause isn’t really meant to have a practical impact on Kapoor or anyone else, as I understand it (since Kapoor wouldn’t have had any particular reason to care about Semple’s pink otherwise) — it’s primarily intended just to make the point that Kapoor’s exclusive licensing of Vantablack is mean-spirited towards literally every other artist. – Peter LeFanu Lumsdaine Nov 15 '20 at 12:05
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    @Shadur: Right, I guess I shouldn’t have said “just to make the point” — it was also intended to provoke Kapoor into a feud. My point is that if Semple had simply released a new pink pigment, Kapoor probably would have never heard about it or wanted to use it; what made it noteworthy was the deliberate announcement of it as a statement against Kapoor. – Peter LeFanu Lumsdaine Nov 15 '20 at 13:14
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    "Kapoor cared enough about the announcement that he bribed someone to buy some of the stuff for him and then posted a picture of his middle finger coated in Pinkest Pink." - Then doesn't this leave the question from the OP unresolved? You can, of course, have a license that says (mostly) whatever ridiculous things you want it to say. That's legal, but not necessarily enforceable. Was any judgement made against Kapoor for violating the terms of the license? If so that would demonstrate the contract both legal and effective. Otherwise it appears ineffective, regardless of legality. – aroth Nov 16 '20 at 2:39
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Is it legal to have an "anti exclusive" contract?

Yes. In general this legally equivalent to, and more efficient than, drafting a version for each imaginable type of entity with whom the offeror would be willing to enter a contract.

RyanM's answer points out the exception where such clauses would be unlawful. But in the software scenario you outline and in most other contexts, "anti exclusive" provisions are permissible by virtue of the freedom of contract.

This answer explains why violating an offeror's "anti exclusive" clause (that is, without offeror's consent, since otherwise it would constitute an amendment of the contract) renders the contract voidable by the offeror. Depending on the circumstances of each case, violations of that clause might also trigger other claims such as fraud and quasi-contract theories.

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