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Related: Can a software license validly restrict place of use, or impose restrictions on the type or purpose of use

As per the above thread, it seems like it is perfectly legal in the USA to attach arbitrary conditions of use to software licenses.

I do know that Title II of the Civil Rights Act of 1964 generally bans discrimination with respect to "public accommodations" which may be privately-owned services such as hotels or restaurants, but I'm not finding anything that specifies whether discriminating against someone with respect to licensing software violates the Civil Rights Act or any other US federal law such as the Americans with Disabilities Act of 1990.

Is it lawful for the owner of the copyright of a software product to attach discriminatory usage conditions on it in such a way that such conditions would violate US federal law if the discrimination was instead done with respect to a public accommodation? If it is unlawful, is the offending (discriminatory) license clause invalidated (i.e. it is not part of the license), or does the clause remain valid but subject the licensor to liability for a discrimination lawsuit?

For example, any of the following hypothetical license clauses could be considered discriminatory under my definition above:

  • Persons with epilepsy must purchase an additional $50 Epilepsy License Rider in order to use this software. Purchasing this rider does not grant you access to epilepsy-related services, but only allows you to use this software despite having a medical diagnosis that would otherwise disqualify you from holding a license. If you hold a valid license to use this software and receive a new diagnosis of epilepsy, you shall have 30 days to purchase a Rider before your license to use the software terminates as a result of your disability. (disability discrimination)
  • Notwithstanding any other part of this license or any other correspondence or arrangement with Licensor, members of the Church of Scientology are forbidden from using this software. (religious discrimination)
  • This software is for white people only. It shall be a violation of the terms of this license for any black, Asian, or otherwise nonwhite person to use the software. (racial discrimination)
  • By clicking the "agree" button below, you represent and warrant that you are a woman as defined under the family law code of Texas. False certification shall be a violation of the license and shall terminate your right to use the software. For the avoidance of doubt, men may not use this software. (gender discrimination)

Are software license clauses such as the ones above lawful under US federal copyright and anti-discrimination law?

In other words, if I write some software in the USA, do I have the freedom to decide to permit only people in certain racial, religious, etc. groups to use it or to require persons in certain groups (e.g. black people) to pay more for the same license, or do I have to obey anti-discrimination laws in who I license to and under what terms?

Discussion:

Questions about why someone would want to discriminate in this way are out of scope for this question. Similarly, why someone would want to use software whose owner wants to forbid them from using it for discriminatory reasons is also out of scope.

I am aware that some software might represent niche areas of interest that would appeal primarily to members of certain protected groups. For example, an app for Talmud study would probably appeal primarily to Jewish users and not, for example, to Muslims, Buddhists, or Scientologists. My question could be whether I could lawfully publish a Talmud study app that only Jews are licensed to use or whether doing this would either invalidate the restrictive license clause (allowing non-Jewish people to license the app for the same price or under the same conditions as anyone else) or subject me to liability for discrimination.

In response to Neil Meyer, I am not asking whether there is a distinction in law between lawful discrimination like choosing who to date or whose products to buy for personal use and unlawful discrimination like deciding not to hire people from a certain racial group for my business. I know that such a distinction is made and that it is not illegal for me to refuse a date on racial grounds or decide to quit my job because I discovered that the company was affiliated with a religion I disapprove of. I am not asking about what discrimination means, I am asking if what is commonly considered unlawful discrimination in public accommodation, employment, etc. is legal if it relates only to software licenses. For example, if I publish a "Standard Edition" of my software for $50 and then a "Special Low-Cost Edition for White People Only" at $20 with an EULA that specifies that the license is void if purchased by a non-white person, is that legal as long as I disclose what I am doing (e.g. on the box or on my website)?

In response to a comment by gnasher729, this question has nothing to do with Scientology per se. I am simply using it as an example of a religion. In the USA, Scientology is considered a bona-fide religion under law and it is unlawful to discriminate against Scientologists in the same way that it is unlawful to discriminate against Russian Orthodox believers, Wiccans, or members of the Holy Family Temple of Pentecostal Righteousness under God Sabaoth.

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  • Is it illegal to discriminate against scientologists? (In Germany there have been court cases for example deciding that banks can refuse to open bank accounts for scientologists).
    – gnasher729
    Jan 9, 2023 at 2:54
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    @gnasher729 I have heard that Scientology is considered an unlawful or at least subversive organization under German law and possibly the law of other countries, but this is not the case in the USA, where it is considered a bona-fide religion under law. An answer from the perspective of German law could be interesting, but I am primarily asking about the typically strong anti-discrimination provisions of US law. Jan 9, 2023 at 3:08
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    If considering the software rights of Scientologists is distasteful to you, feel free to substitute followers of any other religion - Russian Orthodox, Shia Islam, Santeria, Wicca, the Holy Family Temple of Pentecostal Righteousness under God Sabaoth, etc. The answer should be the same under US law. Jan 9, 2023 at 12:39
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    Neil Gaiman was also refused acceptance to a church of england school because of his parents scientology beliefs.
    – Neil Meyer
    Jan 9, 2023 at 18:42

2 Answers 2

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It is generally held (see this article) that contracts are subject to 42 USC 1981

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other

and the wording of the license conditions clearly shows a the "but-for" discrimination cited in the primary holding of Comcast v. National Association of African American-Owned Media that a "§1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury". The scope of §1981 is limited to cases of racial discrimination, having been enacted as part of the 1866 Civil Rights Act.

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  • That should be easy to show if there is text in a software license. Like "this software is for white people only".
    – gnasher729
    Jan 9, 2023 at 9:52
  • I think that there is a good argument that 42 USC 1981 requires state action and does not apply to private agreements since it is 'the right" that must be equal. Comcast seems to provide otherwise (although that was not the disputed issue in that case) but I wouldn't be confident that it applies to private conduct generally.
    – ohwilleke
    Jan 9, 2023 at 19:24
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You should take note that you are confusing term to discriminate in regards to meaning of the english word and its legal meaning.

Is it legal to discriminate in a legal document. No, but the kicker is you are being discrimanatory if you do it in the manner expressly forbidden by law.

So for instance consider choosing a lover on the grounds of race or choosing an employee on the grounds of race.

By the english definition of the word those are equally discriminating but in the eyes of the law choosing employment on race grounds is expressly deemed illegal and the grounds on which you choose your girlfriend is not. Nobody can force you to be in a relationship afterall

So is it legal to discriminate. Definately not as long as the manner of your discrimination falls under the ways deemed illegal.

Afterall, you discriminate against Pepsi everytime you buy a Coke.

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    I believe this is missing the point of my question. I am not asking about what discrimination means, I am asking if what is commonly considered unlawful discrimination in public accommodation, employment, etc. is legal if it relates only to software licenses. For example, if I publish a "Standard Edition" of my software for $50 and then a "Special Low-Cost Edition for White People Only" at $20 with an EULA that specifies that the license is void if purchased by a non-white person, is that legal as long as I disclose what I am doing (e.g. on the box or on my website)? Jan 9, 2023 at 19:22
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    This does not answer the question. Also, the distinction you are citing between "discrimination" in the personal relationship sense (e.g. to choose only white, straight girls as girlfriends, for example), and "discrimination" in the legal sense (e.g. to forbid non-white people from using a piece of software) probably doesn't matter here, because the OP question is about a software license, which is normally considered as a kind of (legal) contract.
    – Brandin
    Jan 13, 2023 at 12:06

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