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Borland Kylix/JBuilder License Reviewed
DJFelix writes: "I'm probably the billionth person to submit this story, but T.J. Duchene has posted a horrifying review of Borland's license for Kylix and JBuilder 5. The license requires giving Borland the right to enter your property, search your systems and records for license compliance. The license also requires the waiving of a jury trial by all parties for all suits including class action suits. This type of gestapo licensing will not be accepted by even the most hardcore anti open-source companies. Send an e-mail to pr@borland.com to voice your concern."
Lets face it - we all know that the licensing has goten out of control. The truely scary thing, is how many of us have simply clicked "I accept." to something as invasive as this?
\Drew National Data Director, John Edwards for President
Is the license still in place?
My Hello World is 512 bytes. But it's also a valid Fat12 boot sector, Fat12 file reader, and Pmode routine.
...that this license agreement will be changed within the next week. Companies always think they can slip crap like this in, but as soon as people start catching on it goes right out the window. When will they learn that there actually are a few people that do read the EULA?
I don't use JBuilder on the job, but if I was considering it, I'd check with my corporate lawyers to see if this license agreement could be honored. Seeing how (anal) compulsive the lawyers were in past projects, I bet they would say "choose another vendor."
Bad license agreements are bad business.
IANAL, but I can't help but think that this will continue until these shrinkwrap licenses are challenged in court. In fact, I find it hard to believe that after all of these years a significant challenge has not occurred - or have challenges occurrred that are settled out of court so these ghestapo agreements can continue.
It's the small guy that is the foundation of our great country (US), and that same small guy will justifyably cower in the face of big corporate lawyers.
Stop the insanity, support the EFF, and hopefully these tactics of corporate America will eventually have some limits.
-- Remember Johnny,
Could you just imagine...
"By opening this box of Raisin Bran(tm), you agree to allow Kellog's Corp. to enter your home or place of business to conduct searches to ensure that said cereal is being consumed in a lawful fashion.
Additionally, should any harm to your physical person result from consuming Raisin Bran(tm) (for instance, but not limited to, consumption of a Jagged Metal Krusto-O (tm)), you agree to waive any right to legal recourse."
Don't like it? Stop eating pre-packaged food.
If it ain't broke, it doesn't have enough features yet.
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.
The problem with your argument is that you take the fact that the "Borland-Gestapo" has not been known to break down the door to the conclusion that it will never break down the door. In a licensing agreement like this, unlike in IP, there is no provision for the company to enforce this bit of the license fot it to remain valid. So, the company waits for its product to be a mainstream hit, and then goes after everyone using it. That is why this sort of licensing must be brought to the open and challenged.
My lease for my apartment had a 'no jury trial' clause. What it meant was that you didn't wave your right to go to court, but instead the trial would be held without a jury, and a judge making the final decision. This is done because sometimes the judge has a better understanding of the law and the technicalities than the jury. This would make sense here.
Can a lawyer verify this for me?
Even if law allows such a licence, how can they really enforce it? If someone comes along to inspect the software and you tell them you never clicked that "I agree" button and they better fsck off before police comes, how on earth can they inspect if you are actually using the product unregistered? You are giving them the right to enter only by accepting the licence, not by reading it.
Gentlemen, you can't fight in here, this is the War Room!
This is not the first time that Borland has come out with a licence with incredibly objectionable terms.
A number of years ago, the licence for their C compiler had the provision that you could not use it to create a competing product. (It would probably make compiling GCC a violation of the license agreement.) They backed off after people screamed about it.
It makes me wonder if their lawyers are paid under the table by Microsoft or some other competitor. Why else would they put in clauses that are so obvious to piss off their customers time and again?
"Trademarks are the heraldry of the new feudalism."
Either they have added language in their that they don't see the consequences of, in which case they'll fix it quickly once people make a fuss over it, or they do indeed see uses for these clauses.
In either case it's worth spending time on.
Protection of privacy and of your freedoms are useless if noone wants to abuse them. They are there as a protection in case someone decides to abuse them in the future.
Actually, Borland has slipped before. IIRC, when they released Turbo C++ 4.0 (~1993?), the original licence limited your ability to distribute programs compiled with it to a certain number (I think 10,000). There was a big outcry and they relented.
A contract, in order to be valid, must be understood and willingly agreed to by both parties. Furthermore a contract cannot obligate somebody to terms that break existing laws. For example, I cannot have a contract that obligates somebody to assasinate a government officiary and have it be legal.
In this case the contract does not have anything in it that is an obvious violation of the law. Furthermore, by clicking the little "I Agree" button you are stating that you understand and consent to the terms. Because of the legislation validating "digital signatures" that button click is enough to obligate you to the terms of the contract.
As far as clause 14.4, there are numerous agreements where you limit your means of recourse. Hell, check out my site for a little rant about such terms that were attached to a Blockbuster gift card I bought. Yeah, a freaking gift certificate that has a license agreement.
So, I wouldn't buy into Borland's software under the assumption that you can beat them in court. I think it may be a faulty assumption, and regardless, which costs you more: an audit, or the murder of lawyers you'll need to fend them off? So why take the chance? Why encourage such behavior?
This sig has been temporarily disconnected or is no longer in service
The irony is that the "money is power" issue you bemoan so much is in large part a result of driving a lot of freedoms to an absurd conclusion. Amassing fortunes running in the billions of dollars may seem like an "inalianable right", the right to property, but if you allow that to happen, everybody else's freedoms and rights get limited and the market stops working.
If you live with other people, you have to make compromises and give up some freedoms. The compromise we should make is to limit the size of corporations, ensure that each market has many players in it, to regulate markets and behavior tightly so that companies behave responsibly, and to reduce the disparity between the wealthy and the poor via taxation and social policies. Conservative economists are right when they say that that will lower the GDP, income, competitiveness, and monetary wealth of the nation. They are wrong when they say that that's a bad thing. A nation in which a few percent of the population have 50% of the wealth may be just as good to an economist as a nation in which the wealth is more evenly distributed, but it isn't as good for the people. And our current laissez faire policies lead to the former kind of nation, not the latter.
If software can have a license like this, why can't printed work? That's what I want to know. They're not that different, legally speaking. I've been working on a few short stories, and I know a couple of people in the printing industry. Maybe I'll publish them myself under such a license for the express purpose of arguing in court that as a copyright holder I should enjoy the same whether my works are published on a traditional media or digitally.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
It's not in the print version. The right to privacy was added by the Supreme Court in Roe v. Wade back in the seventies. I guess that was the best they could come up with in terms of proving that it was unconstitutional to deny a woman the right to an abortion [at least given the specific circumstances of the case, which I've forgotten]. Somehow that was violating her privacy, you see.
Say what you will about the right to an abortion (I'm anti, FWIW), it should have remained a legislative matter, not a judicial matter. Oh well.
"How can you claim that you are anti-crack, while still writing a window manager?" — Metacity README
Actualy It's not directly in there. But in the bill of rights it basically says 'we didn't list all your rights here, and our not listing them does not mean that you don't have them, and thier still fully protected by the constitution'
and the supreme court has repeatedly held that privacy is one the unlisted, but still constitionaly protected right.
Mycroft (since 1984)
Sending a letter to their PR department takes very little time, and to those who suggest that we allow the market to correct the deficiencies and dementia in their licensing agreement -- public outcry would be counted amongst the forces that can influence the market.
It took me about 60 seconds to type up a very brief e-mail:
-----
Greetings,
Your new licensing scheme for Kylix and JBuilder 5 has ensured that I will strongly recommend against that software under that license being used by my company, and furthermore will pass the word via the mailing lists and discussion groups to which I belong in order to ensure that nobody is duped into purchasing it without reading the licensing agreement.
I would suggest that you consider a change, as draconian tactics do little more than alienate your potential markets and detract from your present ones.
Your products are doubtless one of the reasons that I learned my profession, and I find this to be on a personal level quite a disappointment.
-----
It certainly can't hurt anyone to send something similar. This is a benefit/neutral scenario, unless 1.5 minutes of your time counts as a detraction.
I would rather have Borland realize their error and seek to correct -- perhaps start by replacing their legal consultation team -- immediately, rather than wait until their quarterly earnings dictate that they ought to alter something.
-l
I strongly suspect the difficulty here is that Borland just planted the damn thing in Kylix Open Edition without thinking.
Very stupid - and a shame. I'm a registered owner of the commercial server/developer edition of Kylix, and I've been following it closely since the official launch at last February's Linuxworldexpo. I don't see this as an attempt by Borland to deliberately engage in legal tactics to subvert the GPL, which they respect. Somebody screwed up.
It's profoundly ironic that Borland had the bad luck to make this kind of error in a product developed for the Linux community, for whom opensource licensing and the GPL are serious matters indeed.
If Borland were smart they would rectify the licensing situation and post an announcement here. Kylix took literally years to code, and it would be a shame if the bad feeling incited by this kind of PR fiasco put off large numbers of developers otherwise open to working with the product, which is a truly thoughtful and careful port of Delphi.
give me a
Whether slashdot readers and many other Open Source advocates like it or not, the Free Market System works and our government should protect it. Without it, we'd be living in the stone ages like Russia, or China. So, for crying out loud, if you don't like the Borland license, stop bitching about it, just DON'T USE IT.
Your points are correct, but your conclusion is not. We have a free market, and the way it works is exactly the way this is working -- people make a fuss to pressure a company to change. Lots of people could have installed those products without carefully reading the license -- lord knows I never read them. (Perhaps I should start.) Raising this kind of fuss is exactly what we need. Just because Borland has the right to put just about anything they want in their license (and they do have that right) doesn't mean we shouldn't bitch and moan when we don't like what they do.