Legal Commentary

Interesting Software Licensing Agreement

By Eugene Volokh

From Atlassian:

JIRA is free for use by official non-profit organisations and charities (proof of non-profit status is required). There are certain organisations whose purpose is to make the world a better place, and we believe in helping them achieve that.

Community licenses are designed for organisations which are:

• non-profit,
• non-government,
• non-academic,
• non-commercial,
• non-political and
• secular

in nature, that would not otherwise be able to afford JIRA. If your organisation is philanthropic in nature then you probably qualify.

Note the last item in the bulleted list, which strikes me as unusual enough to be worth pointing out. It seems to me that this should be entirely within their rights ? as it would be within a group?s rights to license for free only to religious groups ? and that it is indeed quite legal under U.S. law. But I can?t speak to whether this permitted under the law of other countries, including Australia, where Atlassian is headquartered and where I assume it sells a good deal.

On the other hand, I think the offered rationale ? ?we don?t wish to promote or discriminate against organisations that propagate belief in a specific faith. Donating software to charities that are affiliated with religious organisations is not in line with our neutral stance? ? doesn?t make much sense (not that there should be any legal obligation for such rationales to make sense). Offering software to secular groups but not religious groups strikes me as not being a ?neutral stance? but as in fact constituting ?discriminati[on] against organisations that propagate belief in a specific faith,? since those organizations are being treated worse than organizations that don?t propagate any such belief.

Thanks to Richard Harrington for the pointer.

Full post as published by The Volokh Conspiracy on January 14, 2010 (boomark / email).