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."

Comments

UCITA

[DaveWood]

Any lawyers want to comment on the impact of UCITA in legitimizing such a license - actually making it enforcable?

Some rights can't be signed away.

[cperciva]

When reading these licenses, keep in mind that some statements are completely void. If a license includes the statement that "the licensor will give his or her first-born child to the copyright holder", you can safely go ahead and agree, because no court is ever going to uphold that clause. Even if both parties agree to a contract, if the contract is grossly unfair it can (and will) be struck down by the courts.

It wouldn't surprise me if the audit clause was upheld, but clause 14.4 (which limits your recourse to legal remedy) would just be laughed away if it was ever presented in court.

Re:Some rights can't be signed away.

[pyite]

Yea, that sounds extremely weird considering the Constitution upholds trial by jury in matters of common law.

Amendment VII:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

I can't see how that can be violated and ignored by any competent judge.

Anyone remember how cool Borland used to be?

[pythas]

Anyone remember Borland's old licenses? I believe they were based on a "use this software like a book" model, which was probably one of the fairest commercial licenses I've ever seen.

Last time I remember seeing that was on the copy of Turbo Pascal 7 I had in high school though.

I've seen this before

[Anonymous Coward]

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.

Practice vs. Philosophy

[nwoolls]

I have no doubt that I will get flamed to hell for this, but I have to say it. If the Open Source community worried a little less about philosophy (leave it to the philosophers) and worried a little more about real world practice, maybe Open Source would *actually* gain momentum in the commercial sector. As it is, every other piece of ground breaking Open Source news is about the community crying about this license, defending that license, etc. How does this apply here? Well, when was the last time this piece of legal mumbo-jumbo *actually* effected you, or anyone you know, or anyone you've even heard about? Have you seen any news lately about the "Borland Gestapo" breaking down someone's door? I'm sure there's something the whiners of the Open Source community (which are simple a subset of said community, I know there are those who believe in the practice of Open Source and the superiority of its products rather than simply the philosophy behind it) could find to complain about in *any* non GPL license. If these people could go one day without getting caught up in these lose-lose philosophical debates, and actually put these superior products to use (read avid Borland fan), maybe this community would start to make some forward progress in the commercial world. Welcome to the real world folks. In the real world, companies are out to make a buck. If you are using the product (such as Kylix or JBuilder) legally, then what's to worry about? In a real world situation, I'm pretty sure the management of any legitimate company would smile on the increased productivity these products give, and frown on the lost time by sticking to vi simply because of some licensing technicalities.

not Borland's fault

[Dr. Awktagon]

The idea that you can be bound to the terms of an UNSIGNED contract, is the problem. The idea that you have no right to own the copy YOU PAID FOR unless you agree to a license, is the problem. This is what RMS was talking about when he said copyright holders have too much power. It's a by-product of the way copyright law works.

And although some of this license may or may not hold up in court, do YOU want to be the one that tests it out?

The solution is simple (and I'm only half joking here). All software licenses for purchased software must be signed by both parties, digitally or with a pen. I bet you'd see a streamlining of licenses really fast as everyone actually started reading them and companies had to compete based on them.

So although this is truly the most despicable thing I've seen in a software license, it's not completely Borland's fault. The entire concept of shrinkwrap licensing is broken from the start. Expect to see much more of this in the future (and it will of course be selectively enforced against 1) big businesses with deep pockets, and 2) easy targets, like Russian security professionals).

It's not bad until...

[7608]

It's not bad until some court decides to uphold the license. This is one of the things I find most reprehensible about licenses and contracts in general, and the thing that our constitution was specifically designed against: The concept that your rights are inaliable. Nobody can take them away, you can't sign them away or agree not to excercise them. They are yours, free and forever yours, to excercise whensoever you desire, without restriction. That is, afterall, what the meaning of a 'right' is.

It will not be until we are all enslaved to private corporations that rule our lives, invade our homes, control our property and reduce us to a collection of cells in a spreadsheet, or occupy a few records in a database... not until we have lost all of our human rights and are in fact the property of corporations, objectified as consumers in the global capitalistic system... that I think... maybe... perhaps... we might rebel. We are addicted to our own excesses - our money, our material desires, our flat panel displays and computers that generate enough heat to keep a small building heated. Not until we break the cycle, until we regard ourselves as more than the bottom line in our chequebooks that change will begin in earnest. Until then, the drums of progress beat.

You think open source is going to stop this? You are dealing with a social phenomenon that is so pervasive and powerful that it at once traps you in its web, from which there is little escape. Open Source didn't "win". Microsoft didn't "win" either. Nobody is winning - we're all losers, because even Microsoft is slave to the system that Adam Smith, Maynard Keynes, the executives of Standard Oil, the politicians, created... and the idea that money is power. And it has become power... we have given control of our lives over to an inanimate object... and yet we fear the day artificial intelligence is created! Artificial intelligence, at least, might have the sense to free itself from the self-image that it is "only" a machine.

Humans are still struggling: We are still machines. And that my readers is the ultimate basis from which all of these ills stem from.

Re:It's not bad until...

[LatJoor]

Adam Smith, Maynard Keynes

I think you give Smith and Keynes both less and more credit than they deserve. AFAICR, both had an excellent understanding of the way that powerful players can tip the scales to the detriment of society. Certainly Smith understood this, and when he opposed government intervention in the market, he meant largely that the British crown should not grant trade monopolies to companies involved in exploited Britain's new overseas colonies. Keynes saw financiers as ruthless people who would stop at nothing in pursuit of wealth and power, and estimated that it was better to let them amass it legitimately than to turn to criminal activity.

I think that, unfortunately, the modern businessman's understanding of Smith and Keynes is generally crude and lacking in subtlety. I doubt most have read and understood The Wealth of Nations. Undoubtedly many have read and appreciated Ayn Rand's works, however.

Disclaimer: I myself have never actually read any complete works of either Smith or Keynes, I have formed my perceptions of them based on bits I've read and that I've seen others discuss over the years.

No worries here, move along...

[mark-t]

The constitution protects private individuals against unwarranted search and seizure. No contract between two private parties can supercede that protection. Therefore, those portions of the contract are as legally binding as if they had never been put there in the first place. Usually a single portion being striken from contract does not invalidate the entire contract, so everything is pretty much as it should be.

Re:No worries here, move along...

[senahj]

> The constitution protects private individuals
> against unwarranted search and seizure.
> No contract between two private parties can
> supercede that protection. Therefore, those
> portions of the contract are as legally
> binding as if they had never been put there in > the first place.

Tell it to Dennis Erlich and Arnaldo Lerma and
to Bob Penney, whose homes were searched and
whose computers, disks, and paper records were
seized by privately employed goons pursuant
to _ex_parte_ writs of seizure --

all on the basis of flimsily-documented
allegations of copyright violations.

All purpose license

[DaoudaW]

Having recently downloaded Kylix2 Open Edition, I read this story with some consternation. But after reading the entire license from my install directory (Yes I installed it before reading; so sue me.) I've calmed down considerably. The license appears to have two levels: general language which may not have any applicability to the product you are using, and language specific to a particular product. Since I have the "free" version of Kylix2, the auditing paragraph is totally irrevelant to me. On the other hand, the jury trial / class action paragraph may be relevant if something happens to precipitate such action. As has been stated previously, this clause is extremely unlikely to hold up in court. The license does have two paragraphs specifically addressing Kylix2 Open Edition. I see nothing in those which would keep me from using the product. The licenses references to GPL in fact refer to any software developed using Kylix, not to Kylix itself. I don't see any conflict in this.

Borland License Agreement

[slashdot.org]

Short version:

a) You give up your basic rights provided to you by the law.

b) Because this can't legally be done under the US law, you agree that we will put the law aside and have Borland make the rules.

I mean, are these guys still in kindergarten?? This is obviously an agreement that will not hold up in court. However, it should actually be illegal to even ask someone to agree with it. In a way Borland is asking us to agree to break the law.

It's sad to see that a company like Borland even TRIES something like that. Even if they fix their rediculous agreement, they owe the public a huge appology for taking us for such morons.

Re:What Is With Borland's Lawyers?

[gewalker]

Actually, this license has the same requirement -- From section 2.3
"nor may you use the Product to create a product or operate a service that is generally competitive with the Product or any other Borland product offerings"

As forecasted earlier on K5

[Agent000]

This news is interesting, as less than a month ago I wrote an article for K5 entitled "A Visit from the Software Gestapo", talking about the possibilities of companies taking piracy laws into their own hands.

Greg GregCorp.com... why yes, it is my life's work!

The right way, the wrong way, the legal way

[fm6]

Indeed. If you own a house, take a look at the covenants imposed upon you by the original developer. If your house is more than 30 years old, there's a good chance that in buying the house, you agreed not to sell to a person of color. Quite unenforcable, of course.

The law is full of weird gimmicks that nobody takes seriously. For example, some contracts aren't valid unless something of value changes hands. So the lawyers add the assertion that one party paid the other a small amount of money. It's often a lie, and everybody involved knows it, but it's an accepted practice.

Oh, here's another one. There's no direct route between downtown Palo Alto and Interstate 280. So people often cut across the Stanford University campus, or a shopping center they own. To avoid creating a public easement, the University briefly roadblocks these routes every few years, giving motorists little flyers explaining that they're driving accross private property.

In drawing up this EULA, Borland had to satisfy three completely separate goals: to give Open Source developers the right to use the software for free; to require commercial developers to pay something for the product; and to satisfy RMS's very idiosyncratic and specific definition of "Free Software". Hardly suprising the resulting contract is a little weird.

Consumer, Strike Back!

[peccary]

Pay for the software with a check that has a note on the back that "endorsement of this check indicates acceptance of the terms of the contract published at http://mywebsite.com/doc1.txt, dated 10 Jan 2002, with MD5 checksum 0x82309A23C1431890E."

(Get some help with the actual contract, and don't use the software until you get the returned check)

Re:Who is the criminal here?

[Howie]

Use most web downloads, and you can save having to use to use your paint package. They put the license in an edit box already, to make it easier to change. Sun certainly do this...

This message on debian-legal (also mentioned on NTK at the time) was what reminded me.

Borland used to have great licenses

[red_crayon]

The Borland license that came with my Turbo Pascal 4.0 stipuated that the software was mine to install "like a book" --- in other words, it could be installed on multiple computers as long as there was no chance of the same copy being used more than once at a given time, just as a physical book can only be read in one place at a time.

Re:A lawyer please verify

[mbstone]

The judicial system is, more than ever, highly politicized. Conservative/Republican judges tend to side with the realtively strong (district attorneys, employers, insurance companies, intellectual property behemoths) while liberal/Democratic judges tend to favor the relatively weak (employees, people accused of crimes, people who were injured by the wrongful acts or omissions of others). Individual members of the jury pool come from both sides. Plaintiffs' lawyers, like me, tend to disfavor engineers and programmers as jurors because they, in general, tend to discount that which cannot be easily quantified such as "pain and suffering" -- even where persons are clearly entitled to collect for their very real pain and suffering. Insurance companies tend to disfavor prospective jurors who are thought to be overly emotional such as social workers and teachers. There is a place for all types of people in the judicial system, and most of the time it works fairly well. Big, rich companies would like to eliminate jury trials and class actions -- the only vehicles by which ordinary people can realistically hope to obtain justice in many types of disputes. For example, many "arbitration" contract clauses often force individuals to use unfair dispute resolution systems: you and Exxon have an "equal" right to pay the arbitrator thousands of dollars up front to have your case heard.

Borland won't comment until Monday

[djmurdoch]

On the borland.public.kylix.non-technical newsgroup, John Kaster (of Borland developer relations) said,

No Borland representative will have anything to say on this subject until we hear from our legal department or executives, which will certainly not happen on the weekend.

This is reasonable, but it's too bad: by Monday this topic will have scrolled off, and Borland's only hope to undo the damage will be to show up in a Slashback. Does anybody read those?

Re:True competition

[Jaysyn]

The funny thing is, if you didn't have a license, and they came on site without permission, they could be charged with trespassing.

Jaysyn

Self-destruction

[Futurepower(tm)]

The license says, basically, "Even though the U.S. was founded with carefully designed judicial principles, you must agree that those principles don't apply to you."

Software companies seem to be quite self-destructive. First Microsoft, with Bill Gates seeming to lie to the courts, and Microsoft license confusion, and numerous other ways of communicating that the company doesn't care.

Then Adobe attacking Skylarov and the author of Killustrator.

Now Borland wants to finish the job of destroying itself.

--
What should be the response to violence?

I'll bet it does not matter.

[Erris]

Let me think, oh there it is:

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.

So what is new? This really is part and parcel of any license in the US isn't it? I mean, the BSA thinks it has the right to search you if someone told them that you have "pirated" software. If you dissagree, they will get a court order for it and then charge you the cost of the search. Most people, when faced with that evil oganization, surrender all rights to a trial and settle when threatened with the full cost of resistance. The Borland folks have been up front with what they expect.

More power to free software.

Re:Not reading the license is the problem.

[csbruce]

"Given enough eyeballs, all bullshit is shallow."

my letter to Borland/Inprise cancelling all copies

[andy_from_nc]

Hi everyone. Put your money where your mouth is. Thank god for Netbeans....

Dear Borland/Inprise,

Over the past several years, I've come to rely heavily on Borland
products. Some I have registered, some I have not, all of which I
purchased or acquired legally.

I have to admit, I never closely read the license. After all, it was
Borland, not Microsoft. Recently I've become aware that your licenses
require me to permit you entrance and inspection of my place of
business. (see: http://freshmeat.net/articles/view/369/)

In my case, being a contract software engineer, my home is considered a
place of business and my S-Corporation is registered to
that address. While I consider myself an unlikely target of one of your
investigations, I did not knowingly or willingly agree to loose my
personal freedom and right to privacy which I value greatly.

Because of this I choose to enact my right to terminate my license to
any and all Borland products I own. I will make my best effort to
destroy all copies in a timely fashion and uninstall any copies I may
have of your software regardless.

Secondly, I've often recommended Borland products (especially JBuilder)
to my clients. I
feel unable to make further recommendations in the future.

Please remove me from any and all Borland/Inprise mailing lists and note
that I do not wish to do business with you in the future.

Regards,

Andrew C. Oliver
former Borland Customer and Advocate

RESPONSE:
From: customer-service@borland.com
To:
Subject: Thank you for your message
Date: 12 Jan 2002 21:56:21 -0800
Your email message has been received by Borland Customer Service.

We will answer your message as soon as possible.

Thank you,

Customer Service
Borland

What would Borland do about these?

[Anonymous Coward]

Before you consider deleting this post, I should tell you how I came upon these serial numbers. They were mathematically generated via algorithmic means without even installing the software. This means that NO ONE has ever registered these keys with Borland/Inprise. So my question is.. if these keys belong to no one (they were created using 'random' seed values), who should Borland go after to make sure that the users of these keys are not violating the license agreement?

Enterprise License for JBuilder 5.0
Serial Number: xa52-3pcua-v58ug
Key: nuc-524

Foundation License for JBuilder 5.0
Serial Number: xa52-sanmu-pwnmk
Key: fcd-y2c

Professional License for JBuilder 5.0
Serial Number: xa52-?mz8q-spwzg
Key: yj7-3xw

Enterprise License for MobileSet Nokia Edition 5
Serial Number: xa72-43cq3-46d9f
Key: brj-4at

Foundation License for MobileSet Nokia Edition 5
Serial Number: xa72-3?h9u-rhcak
Key: rnm-kba

Professional License for MobileSet Nokia Edition 5
Serial Number: xa72-7vwry-ctf99 Key: 5cm-9tc

Re:Out of control.

[3247]

You may have purchased a copy of the software, but you have not purchased the right to use that copy. [...] Insane? Absolutely.

This is why it is only true in (pardon the pun) absolutely insane legal systems. The EU Copyright Directive uses a completly different approach: If you buy a copy, you may use it. Period. The Directive does not say what to do with shrinkwrap licenses but in Germany, for example, it has no legal siginifcance at all. (This is not due to lack of consideration, a concept alien to Continental European law. It's simply because the user can not be said to have concluded an agreement just by clicking on a button to use the software s/he already has paid for.)
Then there are strong laws that nullify clauses of a contract that a surprising or unreasonable.
This, however, has not yet been noticed by lawyers of US-centric software companies; they simply translate the licenses to produce a "foreign version".