united-states copyright software licensing discrimination
Does anti-discrimination law apply to software licenses?
<p>Related: <a href="https://law.stackexchange.com/q/78519/10458">Can a software license validly restrict place of use, or impose restrictions on the type or purpose of use</a></p>
<p>As per the above thread, it seems like it is perfectly legal in the USA to attach arbitrary conditions of use to software licenses.</p>
<p>I do know that <a href="https://www.justice.gov/crt/title-ii-civil-rights-act-public-accommodations" rel="nofollow noreferrer">Title II of the Civil Rights Act of 1964</a> generally bans discrimination with respect to &quot;public accommodations&quot; 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.</p>
<p>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?</p>
<p>For example, any of the following hypothetical license clauses could be considered discriminatory under my definition above:</p>
<ul>
<li>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)</li>
<li>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)</li>
<li>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)</li>
<li>By clicking the &quot;agree&quot; 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)</li>
</ul>
<p>Are software license clauses such as the ones above lawful under US federal copyright and anti-discrimination law?</p>
<p>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?</p>
<p>Discussion:</p>
<p>Questions about <em>why</em> 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.</p>
<p>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.</p>
<p>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 <em>if it relates only to software licenses</em>. For example, if I publish a &quot;Standard Edition&quot; of my software for $50 and then a &quot;Special Low-Cost Edition for White People Only&quot; 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)?</p>
<p>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.</p>

<p>It is generally held (see <a href="https://nonprofitlawblog.com/anti-discrimination-laws-section-1981/" rel="noreferrer">this article</a>) that contracts are subject to <a href="https://www.law.cornell.edu/uscode/text/42/1981" rel="noreferrer">42 USC 1981</a></p>
<blockquote>
<p>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</p>
</blockquote>
<p>and the wording of the license conditions clearly shows a the &quot;but-for&quot; discrimination cited in the primary holding of <a href="https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf" rel="noreferrer">Comcast v. National Association of African American-Owned Media</a> that a &quot;§1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury&quot;. The scope of §1981 is <a href="https://www.law.cornell.edu/wex/section_1981" rel="noreferrer">limited to cases of racial discrimination</a>, having been enacted as part of the 1866 Civil Rights Act.</p>
