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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."
Any lawyers want to comment on the impact of UCITA in legitimizing such a license - actually making it enforcable?
We're on the road to Tycho.
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.
Tarsnap: Online backups for the truly paranoid
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.
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 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.
Trapped in Time... Surrounded by Evil... Low on Gas.
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.
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"
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 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.
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)
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.
"Never bullshit a bullshitter" All That Jazz
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?
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
There is a war going on for your mind.
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?
Bush's education improvements were
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.
DMCA, Hollings, Palladium. What might have sounded like paranoia is now common sense.
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".
Claus