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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."
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).
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"
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.
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?