An Open Letter to Borland/Inprise Concerning Licensing
I had a very unpleasant surprise when I decided to test JBuilder 5 and Kylix 2 Open Edition. Both of these products were designed for the Linux operating system. After reading the license, I immediately aborted the install procedure. Both have license provisions which I feel are both invasive and ethically and morally reprehensible. To begin, I quote your own license:
12. AUDIT. During the term of this License and for one (1) year thereafter, upon reasonable notice and during normal business hours, Borland or its outside auditors will have the right to enter your premises and access your records and computer systems to verify that you have paid to Borland the correct amounts owed under this License and determine whether the Products are being used in accordance with the terms of this License. You will provide reasonable assistance to Borland in connection with this provision. You agree to pay the cost of the audit if any underpayments during the period covered by the audit amount to more than five percent (5%) of the fees actually owed for that period.
We are to grant you access to our work and materials for the purpose of verifying compliance with this license. In other words, we forfeit our right of privacy at our facilities or our homes -- a right which we are guaranteed under the Constitution -- simply to satisfy you that we are not cheating on a license. There will never be a circumstance under which I will allow Borland or any other greedy software company to invade my home without a warrant authorized by a court of law. In my opinion, you have no right to even ask for such a thing.
Besides privacy, another concern shared by many is the protection of intellectual rights and property. What guarantees do I have that your company or your auditing personnel will not exploit time spent accessing my systems to steal, compromise, or contaminate my data security, non-disclosure agreements, intellectual rights, or patents on software I may have in development? I would say: none. Even if you promised, how could you realistically enforce it? Once something has been viewed, you can't un-view it. Your license doesn't even specify which products on which computer systems you want to view. One or all? Windows, OS/2, AS/400, or Linux? Private citizens, students, nor any company ever commissioned have any intentions of allowing a single vendor complete access to an entire network/system for one piece of software, either working in the public interest on GNU software or in the private sector. Anyone I know would not use that vendor's products rather than agree to such a compromise of security.
Also, in the same license, you require us to waive our right to settle any dispute in jury fashion, and to give up our rights to class actions. Again, I quote from your license:
14.4 No Jury Trials; No Joinder. Each party hereby irrevocably waives its right to a jury trial in any legal action, suit or proceeding between the parties arising out of or relating to this License. A copy this License may be filed with the court as written consent by both parties to a bench trial. You agree that any dispute you may have against Borland cannot be joined with any dispute of any other person or entity in a lawsuit, arbitration or any other proceeding, or resolved on a classwide basis.
If a number of people decide that your license is unlawful, they cannot collectively seek remedy. Are you afraid that a jury trial might be costly, and rule against you? Jury trials by definition are "trial by peers". A public trial results in many things, including bad public relations. Bench trials are commonly used when actions are to be kept confidential. I strongly question your motives on this point, especially considering Provision 12.
First, we must forfeit our right to privacy, then we must give up our traditional protections and right to resolve grievances under the law. I believe you are asking too much from programmers and other users who have looked to your company for years to provide quality development software on many platforms. In creating this license, I feel you have betrayed the trust you have engendered over the past years. Where you once created "no nonsense" licenses that made me proud to be a Borland customer, you have now created a license that I must publicly protest, to inform the public community of this travesty. To do this in good conscience, I have taken the following steps:
- This letter will not only be posted publicly on my Web site in the future, it will also be sent to any persons/sites/projects, as I see fit, via email.
- Before this letter is sent, I will destroy all copies of your software in my possession with the offending license.
- From this point on, if I download or purchase any software from Borland or any other company that contains this license or one with similar provisions, it will be returned or destroyed immediately.
- I will inform my colleagues and clients of this license, and advise them to avoid any software from Borland or any other vendor that contains these provisions, until you and the industry change license and company policies.
- If I am informed of any previous products on any platform being retroactively licensed in such a manner, I will discontinue using them immediately.
I use C++ Builder 3 Professional as my preferred development platform for Windows, for example. If this software is retroactively licensed in this manner, I will seek a new platform.
This matter has weighed heavily in my decision to purchase new Borland software. I will be frank: I never purchase or use any software with this license, or any with similar provisions from any vendor, period. I want to remain a Borland customer, so I do hope this matter can be resolved quickly and amicably.
[Editor's notes:
T.J. only mentions a couple of the problematic sections of the license; you can view a copy of it here. It has all the usual bizarre clauses of a closed-source use-it-on-one-machine you-buy-it-but-don't-own-it license, made more jarring by references to the GPL.
The most disturbing part is that, while there are sections that only apply to certain editions, most of the license applies to all of them, including Kylix Open Edition. While it's an interesting idea to release an "Open Edition" that can only be used to create GPLed software, they're going about it in a very confusing way. Here's what I can gather:
- You can have Kylix Open Edition (for creating GPLed software only) free of charge.
- However, you have to register it.
- They reserve the right to come to your house and confirm that your ("free") copy is registered.
It's free as in beer, but not as in reasonable search and seizure.
I imagine these clauses were only meant to apply to the Professional and Enterprise versions (not that that excuses them), but, well, there they are.
BTW, we mirrored a copy of the license ourselves because this is what you have to do to get one:
- Go to Borland's downloads page.
- Create a user account on their "community" site. This involves
giving them your name, your telephone number, your company's
name, and your address (all these are required), then choosing
whether or not to remove the checkmarks from these on-by-default
options:
- YES! Sign me up for e-mail notification of new products, services, and special offers.
- YES! Send me information on new products, services, and special offers via postal mail.
- YES! Sign me up for telephone notification of new products, services, and special offers.
- YES! Sign me up for facsimile notification of new products, services, and special offers.
- YES! Sign me up for weekly email notifications of what's happening on the community site.
- Download a 29MB tarball.
Personally, I think that's indicative of a certain need for clue of which the license is probably only one of many examples.]
The unfortunate part...
IANAL, but my understanding is that the Constitution was a contract between the people and the government....businesses weren't a part of the contract. When was the last time you heard any business being struck down because they were doing something unconstitutional? I agree with you, this is dispicable. I can't think of anything new to say that probably hasn't been said by many slashdot and other tech forum posters before. I think by now we all know it in our hearts that these are dark times and this "digital revolution" is being squashed into "digital oppression / totalitarianism"
Where is our Ringbearer?
I know what software I won't be using
Jesus. They put in a clause where they can come into your home? Are they insane? This is a joke, right?
I was just talking to a co-worker about Kylix today. He had me ready to give it a whirl. I will not be using any Borland software now. It's a shame because I have fond memories of Borland C++ from the early 90's.
Bad Time to Lost Customers
I *really* want to use Kylix. I've been pushing it at work
and actually started making progress early this week. I
was to download the software this weekend, learn it, and
demo it to the development staff next Wednesday.
That will not happen. I will not recommend Kylix knowing
what I now know about Borland's voyeristic business
practices. Can you imagine this: One day I get a call
from the Borland Gestapo informing me that they will be
at the office at 3PM to conduct an audit. I then have to
tell my boss, and his boss, that a company that they've
never heard of will be demanding access to our private,
mission-critical computer systems. And due to
incompetent boobery on my part we are *required* to
assist them. I would be fired, and I would deserve it.
No thanks, Source Navigator * (gcc + peace of mind) is
working out nicely.
Matthew
Re: The unfortunate part...
I've had it recited to me often, that there are a fair number of Constitutionally guarunteed rights that you can't waive no matter how hard you try. Some of this comes to mind. Can anyone verify/deny?
That said, fuck you Borland. That was some stupid shit you tried to pull.
Re: The unfortunate part...
... is that I'm old enough to remember when Borland had, for a corporate, an excellent licensing scheme.
The deal was that you could install it as many times as you want on as many machines as you want - as long as it was only in use concurrently as many times as you had licenses.
Thus I could install TurboC at home and at work, without violating the license.
Sorry Borland; you used to be a good company. Now you're probably never to be re-installed here.
Borland and License
Hi all,
I have read the article, and I must admit, it is at least amazing. But after thinking it trough, I think that in reality it could be less exciting as we all think.
In our company whe have rules, and call it a "chain of command" which deals with authorisation etc.
So if the nice lady behind the front desk who normally picks up the phone etc. would accept a parcel which would incl. this license, even if she would sign the license itself, it would not be legal/valid in anyway. Because our company rules are clear about this. Only authorised personnal can sign for such agreements, and a software company like Borland knows they cannot think that their license is suddenly valid if just any person within a company would be so nice to just sign something. For all we know that person might not even speak/write english.
What I mean is this. We are software developers, not lawyers, we might not understand the abracadabra on the license, the company authorises us to do our jobs, and we have security clearance up to a certain level.
If I would sign such a license it would NOT be valid because of these company rules. It would be overruled by these company rules because of the simple fact that I was/am not allowed to make such a commitment onbehalf of the company. Like I can't order any peace of hardware without the proper authorisation and paperwork. If a hardware supplier would be so kind to deliver it anyway, my company would not pay the bill..
But I do not know how this would be in another country.
Anyway, some food to think about..
Maybe it is not as bad at it looks like...
Re: Borland and License
Yes, you're quite right in that circumstance.
However, if you purchase the software for home use, then you are the sole person respoinsible for who comes through your door, so the license would be binding on you.
This is much more worrying to me than what happens in the office.
Here's a tip for those who seek an alternative to JBuilder
Checkout NetBeans. It's an IDE that has a lot of good features and it is developed under an open source license (SPL). It works under both Windows and Linux. I have used for about a month and the only thing that I personally think is missing is good support for projects. It includes Tomcat so you can run your JSP/servlets directly from the IDE.
Devils Advocate
Of course, someone has to do this, but, lets say, you wrote some commercial software, and you think that someone is distributing it illegally, well, you'd want that person hung drawn and quartered.
God help us should we ever fully read Microsoft [or any other commercial vendor] licences... guess we better stop using -any- commercial software.
I for one would still happily use Borland products, knowing that their licence is no worse than any other commercial vendor.
sorry - wrong link!
Sorry - I misspelled the link. Here is the right one
"Licenses" are just overstimated both in USA and EU
http://cr.yp.to/softwarelaw.html (http://cr.yp.to/softwarelaw.html): something worth reading.
Worst licences day by day
I think that we'll living a strange process , we are experiencing greedier and greedier companies with closer and closer licenses and at the same time we're having more and more open source material... It's like if the commercial world and the people were being more radical in their way the deal with computers. The companies want to user-slaves and users just a product.
Obviously, this is a clear example of the current attitude of IT corporations. We'll have to endure more of this... Don't buy Borland,... poor RMS was right.
Thanks for the heads up
I want to thank the author (linuxman@worldwebcafe.com) for taking the time to both read the license, and just as importantly, share with the rest of us (who sometimes are too busy or lazy to read thoroughly). Hat's off to you linuxman, I appreciate your effort.
Certainly I am appalled at this licence, and it strikes a cord in my cyber-heart. As mentioned many times here and elsewhere, this type of legal zombification seems to be gaining momentum. For this reason, I have taken the bumpy path of Open Source.
My forehead is a bit flatter (from banging it agains many hard surfaces), but I am actually productive now with Mozilla, NetBeans, XEmacs, KDE, TuxRacer and Chromium (well, the last two keep me productive after playing them).
My biggest hope is that the corporate giants will go so far beyond sane measures that there will be a strong backlash, one with critical mass to wake up the general public, and rally them to action. I know it may be a dream world I live in, but it's my dream world, and it makes me smile :-).
Audit? Give me a break!
It would appear that the license from the the
commercial versions of their product was also used
on their OE version. If you are really, honestly,
concerned that Borland is going to waste the
money to send someone into your home to make
sure that you paid the proper sum of US$0 for your
product, then don't install it, I guess.
I personally puchased the developer release of
Kylix and am very pleased with it. As I actually did
purchase the product and did not download the
commercial release from a news group or get a
copy from a friend, the license does not bother
me... this is mainly because Borland is in this
business to make money, not throw it out the
window. I don't have any fears that someone is
going to show up at my house and "ravage" my
computer network to make sure that the $249
purchase that they have on file matches the $249
product that I am using (at which point, their very
license states that it will cost THEM the money for
the audit).
These types of clauses are very likely contained in
the agreements that you have with your ISP. My
Road Runner agreement gave Time Warner Cable
to "right to enter the premesis at any time to
inspect the equipment"... they didn't even have to
give proper notice.
If you don't want or are too paranoid to deal with
typical corporate laywer B.S. wording, then fire up
your copy of KDevelop, glade, etc. I, however, am
very happy to have a product like Kylix to be able to
develop in.
Borland's licences and such stuff
"Hallo world" ,
Why shouldn't we look for the project of a new or re-made development environment with small fee to be paied (if not "no fee") and lying under GPL licence?
I cannof feel confident that, as for the past it happened, any commercial company will not suicide itself.
So I cannot feel confident that any commercial company will support any overpaied product forever.
My shelves are full of products I purchased and I cannot use any more because their support has been discontinued or their producers have disappeared. Of course they disappeared taking with them their "secrets". As a direct consequence the maintanace of applications made with such products became almost impossible.
Besides the terms of Borland's licence, with whom I don't agree at all, I ask: "Do we really need them?".
I've seen this before
Check out the book "Data Analysis", third edition, by Siegmund Brandt, published by Springer-Verlag, QA273.B86213 in your library. It comes with a CD of some medium basic routines for analyzing data, and the CD comes with the license agreement that reads, in part:
"Commericial use without the written consent of Springer-Verlag is strictly prohibited. Springer-Verlag or its designee has the right to audit your computer and electronic components usage to determine whether any unauthorized copies of this package have been made."
Thanks to that little bit of legalese, the CD is still sealed in the book. It would be amazing how much more could be done in this world if people wouldn't be so concerned that somebody else might make a dime.
Licensing Agreement
If someone showed up at my place of business demanding access to my computer systems without a court order. I would introduce them to my Sysadmin and Chief Information officers Mr. Smith and Mr. Weson. ;-).
MAC
I don't know
I don't know about legalities, I don't know about licenses, I personaly haven't made a cent from anything I've written in Delphi.
The only reason I want Delphi or for that matter Kylix is to learn. So I have the ability to walk into a job interview and say, YES, I can do that.
I can't afford such luxuries tho, I'm a student, on government support (realy it pays the rent). Looking to find work. I am forced to rely on free-ware versions (quiet often VERY LIMITED) versions of these platforms to learn on.
90% of the jobs I am looking at want Delphi 5 Enterprise experiance... I have Delphi 4 standard (I think it is) from the cover of an APC magazine.
Again... I'm not looking to make money, just learn, practice, and experiance. If I ever make money from something I've written I'll go out and get the latest and greatest... But with licenses such as these...
I don't think I well... strictly because I belive in privacy, I have read constutution and all in the replys above, I don't know about what Australia has that I can rely on.
I will be honest though and say, I have a non-legit copy of Delphi 5 Standard that I used to get the feel of the new enviroment, and if I get any money from doing anything with it, I will gladly pay for it.
Borland/Inprise will suffer my wrath.
I will no longer advocate their software because they have created such an abomination in their End User License Agreement. For them to even consider such agreements in their End User License Agreements, let alone write such abominations onto paper, is more than enough reason for me to not advocated their software.
I now envision and understand Borland/Inprise chooses to exist alongside Microsoft as such a company that tries to make me more of a slave everyday. From the bowels of my ass, I redirect ye Methane gas towards the entities of Borland/Inprise and Microsoft and I shoose to light a match; joyfully flaming them: engulfing them in a torturous mass of fire and fartstones.
Let the flaming begin!
Re: Borland and License
Depending on the circumstances, and on which country you are
in, you might very well be wrong. The fact that you are not
authorized by the company to commit the company to a license
does not mean that a court would automatically accept that
the company is not bound by a license you have signed.
You could be subject to disiplinary action from the company,
including being fired and sued for any loss incurred by the
company as a result of your action.
But if you in your dealings to Borland would reasonably seem
to have the authority to enter into agreements with them, it
is quite possible that a court would decide that your company
indeed was bound by the license (in which case you would
of course be in deep shit if that cause your company to lose
money).
Cool, when will Borland invade MS?
What a great way to get free access your competitors' files. Just create a license that gives you the right access. All it takes is MS to have/borrow/test one copy of these products and Borland and can get in and view whatever they want. MS couldn't even fight them in court.
By reading this message you give me full access rights to not only you systems but your families, your friends' too. It also gives me the right to access your freezer and taste your ice-cream.
Re: Borland and License
> Depending on the circumstances, and on
> which country you are
> in, you might very well be wrong.
> [...]
> You could be subject to disiplinary
> action from the company,
> including being fired and sued for any
> loss incurred by the
> company as a result of your action.
But what would happen if it was a consultant
rather than an employee signing such an
agreement? Would this also engage the responsibility of the
(client) company? Or would it only engage the
responsability of the contractor's company? What if he is a
freelancer?
Re: "Licenses" are just overstimated both in USA and EU
> http://cr.yp.to/softwarelaw.html:
> something worth reading.
>
Very interesting article. I think, though, that the amount of money and time it would take to actually fight a big company on this is too great for the average software user.
Re: The unfortunate part...
So Borland have decided to add this for some amusement, there team of super laws got bored one day - desperate to break your door down and look at your world beating source code ?
What is so wrong with a company wanting to protect its revenue streams (the thing that pays the staff wages) ? paranoia aside, realistically this is to give them the leverage to come down heavy on cheating companies not the public on mass. Students will copy and share software of course, that hardly the issue. If they feel the need to go to these percieved lengths then clearly small company piracy is a problem which they want to address.
Constitution ? Il use common sense thanks...
Licenses and Free Software
I believe in freedom.
Well, at least I believe in software freedom. Since a while I'm using only free software, and it looks like I'm doing right everyday more.
I think that there are a lot of great, and free RADs, out there. And I think that Inprise (Borland, whatever) did a great move to reduce drastically their "free" users (the guys using free software, read the Linux users that want to install Kylix or JBuilder).
I don't know even if such statements are legal worldwide (e.g. what kind of thing happens if i install, say, Kylix -US version accepting their license, and then sue them, being in Italy ---where I am--- the legal system totally different from the American one?)..
Anyway, Ill just stick to my good ol' gcc (who needs pascal, anyway ;)
cheers
paolino
Not Necessarily Legal...
Just because something is stated in a contract doesn't mean it's legal. It's very possible that many of the provisions in Borland's contract are illegal and unenforceable.
Re: Bad Time to Lost Customers
>
> I *really* want to use Kylix. I've
> been pushing it at work
> and actually started making progress
> early this week. I
> was to download the software this
> weekend, learn it, and
> demo it to the development staff next
> Wednesday.
>
> That will not happen. I will not
> recommend Kylix knowing
> what I now know about Borland's
> voyeristic business
> practices. Can you imagine this: One
> day I get a call
> from the Borland Gestapo informing me
> that they will be
> at the office at 3PM to conduct an
> audit. I then have to
> tell my boss, and his boss, that a
> company that they've
> never heard of will be demanding
> access to our private,
> mission-critical computer systems.
> And due to
> incompetent boobery on my part we are
> *required* to
> assist them. I would be fired, and I
> would deserve it.
>
> No thanks, Source Navigator * (gcc +
> peace of mind) is
> working out nicely.
>
> Matthew
>
>
This is real horse apples! Show me a modern commercial license that doesn't have some form
of audit clause. It would be nice if Borland changed their wording but this is far better than
the most egregious licenses like the M$ license that allowed them access to all your files on
their servers.
I'm wondering how many people have never heard the radio commercials for the group that
does the audits on software. I forget the name (probably from disgust) right now. I have
wondered how they are able to enter places of business and review this. I can only assume
they need such a license to extend their services. Supposedly the vast majority of audits
come from disgruntled employees reporting pirating.
No matter how distasteful you find the whole thing it's still a business and if you are buying
licenses you had better get used to it.
I have the developer version of Kylix and when I saw John Kastor in the Kylix road show
demoing it he said that Borland realisticly acepts that as much as 80% of their software
could be pirated but pricing is set accordingly. They also released a free version for the open
source community and have opened CLX and have it on sourceforge (freeclx).
I find the legalese in the license as offensive as the next guy and I'd be happy if they
changed it... but going so far as to say you would not recommend their products in a
commercial environment because of this truly lacks a great deal of rational thought. I
wonder if you've read the rest of your commercial licenses or if you can show me a vendor
more open source friendly.
It is one thing to be upset by the wording, and another to be irrational about it.
Eric Laffoon
PR Suicide
Is it just me, or is the bulk of the companies these days committing pr suicide? What, they think just because Microsoft gets away with it, everyone else can?
Where have you been?
First there was the sleazy practice of never printing version numbers on their packaging, but instead just quietly folding bugfixes into the shrinkwrap copy and only distributing patches to users who complained.
Then there was the sleazy license that required additional fees to be paid if your software had a distribution of more than a certain number. When free software and shareware programmers complained (loudly) because they have no control over their distribution, Borland's reponse was along the lines of `oh, we didn't mean you guys, we just put that there to prevent our competitors (Microsoft and Lotus--anyone here even remember Quattro Pro?) from using our compiler'.
Then they threw a crumb at Linux and through the power of zealotry manufactured a clean image.
Oh, you don't like Borland anymore? Welcome to the party.
Re: Devils Advocate
Actually, I do produce commercial software. However, for each release of each product, I very carefully release it into the warez community. Since I've started doing this, my sales have gone UP. It's called "word of mouth" advertising.
> Of course, someone has to do this, but,
> lets say, you wrote some commercial
> software, and you think that someone is
> distributing it illegally, well, you'd
> want that person hung drawn and
> quartered.
Re: The unfortunate part...
They called that license the "No Nonsense License". Are we to assume that the new license is "The Nonsense Contract"?
Just a thought. I use the principles of Borland's old license in my own software. I guess I can no longer advocate them by name.
Unfortunate Licensing
It's rather unfortunate that Borland has chosen this kind of strong wording in their licensing. I think we all appreciate the fact that Borland is offering a free version of their software and I think its very reasonable that they stipulate that any software developped using the Open Edition of Kylix must be licensed under the GPL ( I may be biased :) ). But obviously some of the management team and legal folks at Borland are pretty paranoid about the potential implications of giving away any version of their product without a means of enforcing the terms of their license - so they've included some pretty strong powers in the license itself.
Its probably a good idea to write to Borland to express your opinion if you've got one; but the real truth here is that Borland cannot afford financially or from a PR perspective to go to the extremes to which the license accomodates. . . so don't get too paranoic just yet.
And as for the folks at Borland who dreamed up this PR nightmare all I can say is "You can never underestimate the power of stupid people in large groups."
Re: Devils Advocate
I believe my point had little to do with sales distribution/penetration, but rather, the rights of software developers/owners. :)
I'll happily agree that word-of-mouth is a great sales method.. however, we'll leave that for a different discussion.
Borland
I agree that Borland makes great products. I've been a Borland fan for years. Using TASM, Pascal, Tcc, Bcc32 and Delphi. All great prodcuts. However, since they gave up Pascal (didn't fix their RTE 200) I've been scepticle.
After reading this document (and making a trip to Borland.com to confirm) I have decided not use any more Borland products. It seems that the once great company has lost touch with the people that once made it great, the common programmer.
The idea that Borlandd reserves the right to invade ytour home and avoid any trial is scary. I wonder how many people actually read that agreement? I'm glad one writter did. Thank you for the enlightment.
Alternatives
Borland like any other company today is not making enough money to survive. Poor companies are bound to do something to make more money. There is nothing wrong in that. If we keep using Borland software, it doesnt makeup for its losses completely but only buys more time before sinking completely. I know we are using PNG format for images after all that GIF patent issues. So arent there other products one can use instead of Borland compilers like GNU C
Before we get too excited...
...I work for corporate Lawyers (yea, I know, like working for the Empire on the Deathstar...). Anyway, the one thing you need to keep in mind is that a "license" is nothing more than a contract. Even if you ignore the rammifications of 'Vault vs. Quaid', basic contractual law states that if the contract is not legal, it is not binding. You cannot rewrite the Constitution out of a contract. What would be next? "I have the right to kill you if you use my software"? No. Any contract has to uphold and be written within the context of the Laws and the Constitution. Many companys have actually had the opposite happen to them. They have written a contract, only to have it overturned in court for having some minor illegal phrase. Once that happens, the contract, ALL OF THE CONTRACT, is no longer binding. And, wow, can that get ugly. That's why there are corporate lawyers specializing in this. A Judge could make a ruling to inforce the legal portions, but that would be all. And it would cost the company lots of time and money.
So why do they do it to you? The biggest is to scare you. It's not illegal to scare you. It is illegal to inforce the scare. And, lets not forget that it IS illegal to steal software. I once read a great quote somewhere that goes something like "The devil can quote the Bible for his own purposes". Well, Lawyers can quote the law for their own purposes as well. That still doesn't make it legal.
The only time people personnaly get in to trouble is if they steal software and get caught. Someone turns them in or whatever. Then, you would be served a legal warrant by an officer of the court. No company has the right to inspect your personnal property, period. It's illegal, plain and simple. If someone comes to your door and says " Hi, I'm from {evil software company, inc.} and I want to and have the right to inspect you boxes." You can say "Blow me" (or my favorite, "Talk to Mr. Sphinctor") and close the door in his face. (By the way, rudeness is a legal right, protected by the constitution). He would have to go to a court, serve you a summons, and then a judge would have to decide if he could. An all you would have to do is utter these words: "You honor, it's an illegal invasion of my privacy and Rights guaranteed me under the Constitution and I do not want to allow it." Now a judge has to decide whether he should ignore your civil rights in order to inforce a contract that is not only illegal, it does not have your signature or a notary signature. In case you are wondering, that would be a NO.
One more point. I wouldn't worry about legal fees. If, for some insane reason, a company actually wanted to fight you legally (and you were in the right and not stealing the software), they would find themselves in a legal and PR firefight. Make no mistake, a dozen privacy rights groups would swoop in to fight this one with you (if for no other reason than to justify their own existence). That's why I do not agree with a previous link that said they thought that the supreme court would make a ruling on this. In order for the supreme court to rule, a case has to make it there, brought by one of the two parties. No company wants to waste the money or claim the rights to that negative PR nightmare.
IMHO.
The open edition can only release GPL'd code, yet the license forbids it?
According to the license agreement, the OPEN edition can only release GPL'd code, indicated in section 4.1 with:
f you have Kylix Open Edition and you would like to
distribute your Works other than under the GNU General
Public License, then you must purchase the appropriate
commercial license from Borland.
However, on section 3.3, you see this condition:
Regardless of any modifications that you make and regardless of how you might compile, link, or package your Works: (a) you may not permit your End Users to modify or further distribute Redistributables or use Redistributables in any program that they create;
Which, according to the GPL's sections 1, 2 and 6, ANYTHING released under the GPL must be able to be re-released, and modified. This means, that the Borland license and GPL are incompatable with regard to their 'redistributables' (which in itself is a misleading name with the restrictions they put on them).
The GPL says anything released in a package released under the GPL (which, as the Kylix license says, you can do just fine), has to be modifyable and re-distributable. Furthermore, you're not obligated to include borland's license with you're product.
So ... using the Kylix Open edition, with ANY of the re-distributables basically means you cannot release you're product at all, else you'll either be violating the GPL, or borland's license.
Re: The unfortunate part...
> IANAL, but my understanding is that the
> Constitution was a contract between the
> people and the government....businesses
> weren't a part of the contract. When
> was the last time you heard any business
> being struck down because they were
> doing something unconstitutional? I
The Constitution, as I understand it, especially in federations such as Australia, the USA and Canada, provide the basis of the legislative power of their lawmaking bodies. While it may be useful to think of it as a contract between the state and the peoples (like a Hobbesian social contract), you can't exclude its terms based on the operations of contract law.
If you could, then contracts could have terms that modified the application of the constitution, and the laws that result from it, resulting in a preposterous situation, since you could then make a contract with any object you wished, including a object expressly criminally illegal.
Although business are not "struck down" because they do unconstitutional things, if you can establish that a contract has illegal aims, then you establish that no contract existed in the first place, and ergo, no contractual obligations on your part.
Re: Audit? Give me a break!
% I, however, am very happy to have a product like
> Kylix to be able to develop in.
%
I hear one frog in the frying pan saying to other, "...so it's a little warmer, I can deal with it. What is the matter with you?"
Re: Before we get too excited...
I don't care if you work for lawyers or the president. Your statements are wrong. The reason is that over time things which may be absurd become common and standard. Even if not tried in court. If a company says we've had this eula for the last 30 years a court will take that into consideration. The time to complain about a stupid/unfair/improper/burdensome eula is now while it's still stupid/unfair/improper and burdensome. Not after it's had time to become standard.
Re: Alternatives
Borland is making plenty of money these days. Their stock has gone from the low $4.00 mark to the upper $15 mark. This is due to them making more money. Their pricing has become too high for the average developer to buy, ($1500 for a compilier!) and although I love their software and have used it since the 80's they are now JUST ANOTHER SOFTWARE COMPANY and do not deserve any brand loyalty, any longer. This opinion is based not only on their stupid eula but also on their pricing.
Re: Before we get too excited...
Well, I certainly agree that the time to negotiate anything like this is when it becomes apparent. If for no other reason, the inconsistencies between the GPL and Borland's own license need to be addressed. By getting it addressed, people may be able to get Borland to see the errors of their ways in terms of supporting the developer community. But you miss the point that I was making in two respects.
First off, it has been addressed in the past. As far as the legal community is concerned, this is considered an uninforcable contract. Read this reference posted by another person here if you don't believe me. Software User's Rights (http://cr.yp.to/softwarelaw.html). It's a good read and a good summary of what has been struck down already in the courts. Issues of this nature have already been examined in the courts before EULA agreements such as these could be considered "Standard". Which would bring me to my second point.
You simply cannot cancel out your rights with ANY legal contract. I don't care (and neither do the courts) if it has been used for 100 years. The consititution is over 200 years and it's very explicit regarding your rights. All contracts must operate under the Law or they are invalid. There is no legal basis for saying to a judge "well, it's been around for a long time, so it must be binding." Think of how many times a criminal is released because of a minor technicality in the law. Do you think the judge said "Well, he's been in jail for 30 years, so he must be guilty"? In this case (assuming that he was actually guilty of the crime), sadly no. The whole case is thrown out, not just the minor technicality.
By the way, not even the President can remove these rights from you. All he could do would be to pardon you if you had been convicted of software piracy.
Re: Bad Time to Lost Customers
When the Borland Gestapo calls to tell you they're coming over for the audit, be sure to remind them to bring the court order.
Re: Before we get too excited...
If all the above where true, then how would a law like the DMCA ever get passed, or the Sony Bono's Mickey Mouse copyright changes. Just because a law is unenforceable now, does not mean it is unenforceable in the future. The owner of a copyright can own the copyright long after the original author is dead! Unthinkable at one time. Now is the standard. public contracts (eula) that are unenforcable must be forceably shown to be stupid and embaressing to the company that makes them.
First to maintain the ownership of the law. (ianal but I know that big business is the current principle owner of law in the US)
Second to keep laws resonable, by showing extreme cases to be extreme. If we let it slide and say things like, "it's not enforceable anyways" then it becomes a matter of public acceptance, and from what I've seen most judges are cowards when it comes to going against public acceptance.
Re: Before we get too excited...
Whoa! Let's not get into a discussion of the pro's and con's of the legal system. Freshmeat will have to buy a new server with alot more space if we get into that! Suffice to say that just because a law gets passed by congress does not mean that it is enforceable. Or that it will stay a law. That's for a judge to decide. There have been many laws passed that have been struck down by the courts. That's why we have checks and balances. The law isn't "owned" by anybody. Anybody, a business or a person, can take their grievances to a judge to decide. It may appear that big business owns the law, but if you read the legal rulings regarding EULAs, it's pretty apparent that they don't. Also EULA's are not public law. They are a private contract between two parties that has to follow the law. I can't stress that enough.
I want to make sure that you realize that I agree that these kind of contracts should be exposed as bogus and unreasonable. I think that the major problem with them is not so much one of legality, as it is a moral issue. I, as a basically honest person, have a problem saying "yes" to a ridiculous EULA, even though I know it is not enforceable. By saying "yes" I feel that I am somehow morally bound to uphold the EULA to the best of my abilities.
Well, please excuse the obvious humor in this statement, but Legal does not equal Moral. Especially with this product. You are almost breaking some portion of the EULA by just holding it in your hands! Borland has to respond to this, if for no other reason than to clarify the obvious contradictions.
(By the way IANAL, but I play one at work!)
Knock Knock paranoia
Because a companies license disagrees with your personal opinions it doesnt immediately make them "greedy" as you term them. Personally, I like the fact Borland are supporting Linux with well priced good products.
"we forfeit our right of privacy at our facilities or our homes" - rubbish.
Borland, during reasonable times and with reasonable warning, can (note: not 'will') ask you to prove you arent stealing from them. How exactly do you propose Borland could verify you arent cheating them ? if the software "phoned home" or attempted to validate its license there would be a yet another huge fuss about that and what details it might be sending (i.e ms product activation). Borland, probably in conjunction with the BSA, want to secure there rightful income streams. If that means you might have to let someone come into your office (or in some very unlikely extreme case your home) to prove it then dont blame Borland, blame piracy.
If company A steals 9 of its 10 licenses whilst company B pays for all 10 then I see no reason why the legitimate company has any reason to fear a license which, all in all, helps it play on a level playing field.
Re: The unfortunate part...
RULE NUMBER ONE. When they tell you the fine print doesn't matter.
IT MATTERS!! That is why it is in fine print.
The best defense is a good offense. How do you like this idea. Borland customers should send to Borland a signed statement of their conditions of
purchase. . It would say that if Borland or its agents or dealers provide the listed company or people software in return for money, Borland will
have agreed to the terms listed in the notice.
It should say that the transfer of funds to Borland, or its agents constitutes the sale of goods.
Notice I did not say lease. It would say the they buyer expressly rejects the language in the shrink wrapped agreement. It should state that if
Borland, their agents or dealers take your money for a copy of software, they were by that act agreeing to the listed terms of conditions under
which you offer funds to Borland or its vendors. It should say that Borlands sole remedy under the agreement is to exercise their right not to
enter into a transaction with the signer.
It has a lot more legal meaning than a shrink wrap introduced after the sale beca use this is delivered to the vendor before the sale. The way to close this door is to organize a few companies to do it jointly in front of a lot of media. With lots of press clippings it would be hard for Borland to claim they never got the notice or were unaware of it. Terms
presented before a sale, are binding on a consumated sale. Terms revealed after money has changed hands are a lot less valid.
Borland lawyers and management think they are playing a one sided game. They may very well learn they are not.
General Motors uses such an agreement. They notify all vendors of their conditions before they buy from them. I have seen that won many times. The notice says that the GM terms are the only terms of the sale. That unless the GM board of directors approve and the President signs a written
contract voiding the pre sale conditions they are in effect. It says GM only agrees to the terms of its pre purchase notice of conditions.
If it works for them and it will work for Borland customers. Customers need to fight back. It is one thing to say after the sale ... by the way here are the conditions. If you don't like it send it back . It is quite another to say here are my conditions before the sale, if you sell to me you have
agreed to my conditions..
With a pre sale notification agreement, buyers would once again have the upper hand.
Re: Borland and License
Let us see, my 12 year old neighbor installed the software. Do you think that any minor can legally agree to any contract? Can you prove that I really installed it?
Most companies have policy manuals that prohibit all but certain designated individuals from entering into contracts involving the company. Those policy manuals specifically disavow any other agreements (like the "i agree" buttons on software, or "if the janitor signed for the package, then you agree" arguments). Let the lawyers fight amongst themselves.
Didn't Borland have this kind of screw up in their licensing years ago when they prohibited developers from using their tools to write database applications? The one that they publically backed down from?
Borland License
Having dealt with zillions of contracts and licenses, It is my understanding
that you cannot "contract away" your rights under the constitution,
regardless of the wording. If you objected, they would have to have
a warrant to excercise this license, and you could receive an injunction against that based on your
constitutional rights to protect your privacy, including trade secrets.
BUT for those who are still nervous, do what we do - when we see such
crapola in software, we simply send a certified letter to the company
stating our non-acceptance of certain provisions of the license. Under
Florida law, provisions of a contract can be "removed" without invalidating
the entire contract(license). It's legal, and it protects you. Have yet to
have anyone tell me to "return" the software, or even respond.
Such letters also serve to wake Borland - and other companies - up to the fact that this is a bad idea. If they get thousands of letters saying screw-you, they might get the idea.
Just for the record, Borland is not the only one sticking such crap in their
EULA - I've seen similar stuff in MS license and others. Only a matter of
time.
All the more reason to raise hell!
Re: The unfortunate part...
> IANAL, but my understanding is that the
> Constitution was a contract between the
> people and the government....businesses
> weren't a part of the contract. When
> was the last time you heard any business
> being struck down because they were
> doing something unconstitutional?
Years ago, most real estate had "covenants" prohibiting the sale of the property to dark-skinned people (they used the words "negro" back then, insert your prefered contemporary term instead) and that any such sale also required the purchaser to agree to such terms. These convenants were ruled by the US supreme court to be unconstitutional. There are more dinosaurs like this in the US legal history, thankfully extinct.
When the state has a compelling interest in something (strict scrutiny), it can get involved in anything. After all the state is required to be involved in the enforcement of contracts. Contracts that are inherently flawed become the state's interest. The attempts to force the passage of UCITA are an attempt to make click-wrap contracts legal: they are not (maybe my 12 year old child pressed the button - can you prove otherwise in a court of law?).
Knock Knock, bad business practice!!
> Because a companies license disagrees
> with your personal opinions it doesnt
> immediately make them "greedy"
> as you term them. Personally, I like the
> fact Borland are supporting Linux with
> well priced good products.
>
> "we forfeit our right of privacy
> at our facilities or our homes" -
> rubbish.
> Borland, during reasonable times and
> with reasonable warning, can (note: not
> 'will') ask you to prove you arent
> stealing from them. How exactly do you
> propose Borland could verify you arent
> cheating them ? if the software
> "phoned home" or attempted to
> validate its license there would be a
> yet another huge fuss about that and
> what details it might be sending (i.e ms
> product activation). Borland, probably
> in conjunction with the BSA, want to
> secure there rightful income streams. If
> that means you might have to let someone
> come into your office (or in some very
> unlikely extreme case your home) to
> prove it then dont blame Borland, blame
> piracy.
>
> If company A steals 9 of its 10
> licenses whilst company B pays for all
> 10 then I see no reason why the
> legitimate company has any reason to
> fear a license which, all in all, helps
> it play on a level playing field.
Excuse me! It's all nice and airy fairy if you can justify people coming into your house and putting private information at risk, moreso when the product at hand is DIRECTLY INVOLVED with development. You're getting completley desensitized from the TRUTH at hand by fatal and selfish "business model thinking".
It's also really handy how you sidestepped the part of the agreement where it basically says: "You have to pay for all the rooting we do through your stuff."
I don't deal AT ALL with Borland, and at this point, I'm glad I don't. This is USERY, which IS a violation of constitutional rights. No matter how much they want to convince themselves, they can't get away with ANY of the stuff listed here.
Let's not forget the "mine mine, gimme gimme" tone of voice that fits so well with these overly corporate minded legal statements. Borland charges extortionatly high prices for software that allows people to develop what could be done with other tools, and a little more skill.
Since when has functionality had to come at such a high price?
Re: Before we get too excited...
Amen, that's solid stuff, and I'll attest to it.
Re: Alternatives
I agree with you on that one. Borland used to have good products, but after becoming Inprise, and whatever other change of face they've had, it's just not the same company anymore.
Now big rooms full of market analysts are turning the crank on a jack-in-the-box with the word "money" painted on it in green.
Boy are they in for a surprise.
Borland charges way too much for their software, and with Linux on a collision course for reality, their sort of products will be just the same as something that "Bob LaBla" made in his basement in Helsinki.
Re: Knock Knock paranoia
> Borland, during reasonable times and
> with reasonable warning, can (note: not
> 'will') ask you to prove you arent
> stealing from them.
Well, in the Good Ole You Ess of Eh, the usual procedure is that one is innoncent until proven guilty. It's not my job to prove my innocence - it's Borland's job to prove my guilt. To do so, they have to come up with good evidence, and they have to use due process to get that evidence.
What's so bad about that? It's worked for centuries. And bad guys DO get caught.
%How exactly do you
> propose Borland could verify you arent
> cheating them ?
That's their problem. How does anyone, using due process, "prove" that anyone is doing anything bad? There must be a way, somehow, to detect bad guys and bad activities. After all, prisons are bulging at the seams, and new judgements are rendered everyday.
Yeah, once in a while a baddie slips through. Most of the time, however, justice prevails.
Surely Borland can find a way to work within the system. Of course, there's Micorosoft.... but don't get me started.
Re: The unfortunate part...
Wow... now there's a response worth serious consideration. You are truly on to something here.
The POWER software buyer's *could* have over commercial software firms (like M$, Borland,...) is quite significant. Could you imagine the possibilities of having a Delphi (or Kylix, etc) Buyer's Consortium of sorts, where 90% of all Borland's Delphi target-market were the developers that belonged to this consortium, and this group would set the rules under which its members would purchase Delphi from Borland. It takes a GROUP effort, but this can be done!
Perhaps this is the best way to reign in these companies... form purchasing groups that would lay down the terms under which they will agree to buy, vs. the terms which the big s/w firms try to push down our throats.
This is really worth pursuing.
What could these firms do other than work out "deals" with the consortiums to make the licenses more developer friendly. It's sorta like having your s/w developer market go on-strike if they don't get what they want. It's worked for the labor unions and such. And, as demonstrated above, purchasing power (like GM uses) carries a LOT of weight.
Anybody else think this can be made a reality?
I'll agree to only buy through such a group if we can get enough people on board!
PS: One note... I *really* love Delphi. I've used it for a long time and it rocks! I don't want to have to switch to lesser products (like VB) unless I must :)
Borland Backs Down!
Dale Fuller, the CEO of Borland, has posted an open letter (http://community.borland.com/article/0,1410,28243,00.html) to the Borland developer community admitting that their licensing language was a mistake and that it's being corrected! Hooray! Chalk up one for the good guys!
Re: Knock Knock, bad business practice!!
> Excuse me! It's all nice and airy
> fairy if you can justify people coming
> into your house and putting private
> information at risk, moreso when the
> product at hand is DIRECTLY INVOLVED
> with development. You're getting
> completley desensitized from the TRUTH
> at hand by fatal and selfish...
Its Borland not Darth Vader...
To clarify, a software company has decided to protect its rights (..and the wages of its staff and future Linux development) by developing a license that isnt to everyones tastes. This, IMO, is over reaction. Borland are not going to suddenly start breaking your door down and stealing your top secret source code. Yes... they could enter your house but then we all know this wont happen and its designed to target small to medium companies actively stealing there software. No, I dont like this license nor do I work for Borland in any shape or form but I think the theory has got blurred with the reality. I personally *prefer* that they CAN enter my place of work (or house if we must all get paranoid) and ask me to prove I have paid for there software. This is a VAST improvement on having the software busy telling them things that I have no control over. At least this way the end user has absolute control over what information is known.
"which IS a violation of constitutional rights" - not being American I dont know or particuarly care what is or isnt a violation, perhaps im wrong but you have a *choice* over to agree this license or not. If it violates your rights then dont agree.. problem solved and your rights arent compromised.
"Borland charges extortionatly high prices for software" well then what are you whinning about ?! if they can curb software piracy the price goes down obviously. This is not a "perhaps" or "hopefully", the hard facts are that piracy costs money. Your contradicting yourselves complaining about them taking a hardline on software theft then about the prices they charge.
The answer seems pretty simple, if you feel this license is unfair and violation of some right or other then dont use the software. I would think home users arent particularly a massive revenue maker for Borland anyway and... money talks.
Re: Knock Knock, bad business practice!!
%
> Its Borland not Darth Vader...
>
> To clarify, a software company has
> decided to protect its rights (..and the
> wages of its staff and future Linux
> development) by developing a license
> that isnt to everyones tastes. This,
> IMO, is over reaction. Borland are not
> going to suddenly start breaking your
> door down and stealing your top secret
> source code. Yes... they could enter
> your house but then we all know this
> wont happen and its designed to target
> small to medium companies actively
> stealing there software. No, I dont like
> this license nor do I work for Borland
> in any shape or form but I think the
> theory has got blurred with the reality.
> I personally *prefer* that they CAN
> enter my place of work (or house if we
> must all get paranoid) and ask me to
> prove I have paid for there software.
> This is a VAST improvement on having the
> software busy telling them things that I
> have no control over. At least this way
> the end user has absolute control over
> what information is known.
>
That still doesn't absolve them of the simple fact that they arn't entitled to those rights, even with small-medium sized businesses. Who are they to set parameters like that. People these days think that just because they have "intellectual property", they've suddenly become this "holier than thou" savior to the people.
If they wanna inquire on licensing, they can do it the legal way. Not by obligating us to waive our rights.
As the title says, it's bad business practice.
> The answer seems pretty simple, if you
> feel this license is unfair and
> violation of some right or other then
> dont use the software. I would think
> home users arent particularly a massive
> revenue maker for Borland anyway and...
> money talks.
>
Absolutley, however Borland's main audience for the past...MANY years HAS been the home developer. It's only been somewhat recently that they've decided to start charging more for their products. At this point, it doesn't seem like the value is there anymore either. They try to pimp out licensing in such a ridiculous manor, that if someone wanted to distribute a piece of software made with their tools, they'd have to shell out yet again.
One price is good enough. You absolutley can not justify their attempts to milk the market. Not with "intellectual property protection", and not with "this is how they make a living".
Yes, money talks, and if people have to spend too much, they're gonna look elsewhere.
If they made their products a "one for all" sort of deal, and made it available at local software stores, for more human prices, more people would buy it...I promise you that.
I was considering buying C++ Builder recently, but after seeing this document, I don't know anymore.
Borland has changed its mind
Borland has said it will change the license. You can find the
Slashdot coverage here.
Such Licenses Should be Clearly Marked on Freshmeat
Although Borland has gracefully backed down (and, with any luck, fired the hapless lawyer who authored that clause in the first place) and has promised to fix the terms of the license (has anyone seen the new license and verified its acceptability?), I do think freshmeat and other sites which collect pointers to software products should identify commercial licenses which such onerous strings attached.
Rather than identifying commercial licenses as "commercial license" there should be at least 3 categories, perhaps more depending on what kind of unacceptable conditions appear and are identified:
1) "commercial license - not screened for acceptability"
2) "inoffensive commercial license"
3) "license requires user to waive basic constitutional rights re: search and seizure"
and so forth.
In other words, systematically identify and warn folks about these sorts of licenses in the very product description/database, rather than simply relying on ad-hoc letter writing campaigns, word of mouth, and loud public outrage. The latter can simply be overwhelmed by a plethora of unacceptable licenses (after the 30th story on the subject, how many would be listening?), while a simple identifier in the license description would scale to a billion such licenses, if need be (perhaps with a bright red skull and crossbones icon to drive the point home).
Re: Cool, when will Borland invade MS?
> By reading this message you give me
> full access rights to not only you
> systems but your families, your friends'
> too. It also gives me the right to
> access your freezer and taste your
> ice-cream.
But... but... that's my icecream! *cries*
Re: Knock Knock, bad business practice!!
> "Borland charges extortionatly
> high prices for software" well then
> what are you whinning about ?! if they
> can curb software piracy the price goes
> down obviously. This is not a
> "perhaps" or
> "hopefully", the hard facts
> are that piracy costs money. Your
> contradicting yourselves complaining
> about them taking a hardline on software
> theft then about the prices they
> charge.
Only that in many cases the losesses are calculated something like this: price * illegal copies which is not quite right, since many of the people with illegal copies just don't have the money. They won't buy a product just because they can't get it free. They will seach for something else.
I am one of those. But I don't do piracy. Instead I use, and encourage others to use, free software.
I used to like Borland C++ 3.1 years ago (before DJGPP that is), but the Windows versions wheren't that good, and then I moved to Linux.
And the best part, by always favoring the GPL'ed alternative I save a lot of time as I already know the license and don't need to run it through again with every new program. You know, those licenses tend to be long.
Re: The unfortunate part...
http://www.gnu.org/fun/jokes/purchase.agreement.html