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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."
I guess they really want to compete with M$ - remember the FrontPage license?
John 17:20
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.
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.
...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.
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.
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,
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.
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.
Here is the text of the license agreement. I have been unable to locate this license agreement on Borland's website, so here is the link to freshmeat's mirror of it:
http://freshmeat.net/.misc/borland-license.txt
I thought MSC (and maybe MSVC) had that clause. It might have been common, albeit silly, practice at the time.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
http://freshmeat.net/.misc/borland-license.txt
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.
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.
I know that Oracle licenses JBuilder for their JDeveloper product... anyone know if that means that the Borland license is automatically included within it?
Mind you, maybe I _COULD_ go and read the Oracle license myself...
$0.02 (CDN)
Well, jeez, isn't this part of how the market actually works? By having people who find an issue, raise a stink about it, and in so doing, get it fixed?
Pay attention: You (that's right, you, yourself) are a part of the market. If you find an issue that needs resolution, but do nothing to try and resolve it, you are letting the market fail to do it's job.
Wake up, and join the rest of the world in trying to fix that which is wrong.
GPL made simple: What was my stuff is now our stuff. If you improve our stuff, please keep it our stuff.
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?
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.
File under 'M' for 'Manic ranting'
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.
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."
However, Borland cannot enter your property without your permission except with a court order.
If you agree to this contract, then refuse them access to your property, then you are in breach of contract. (Assuming for the sake of argument that a court wouldn't just laugh itself sick on seeing the "license")
So, you are in breach of contract. Big, fat, hairy deal. All that means is that
(1) Borland can cancel the agreement, stopping you from legally using the software, and
(2) Borland can sue you for the losses they incur as a result of your breach, which I would estimate as one Euro and a packet of Rolos.
If you're downloading it at home, laugh. For a business, you would want to run it past the lawyer, but I would advise you not to show it to a lawyer while they are drinking a coffee, unless you're wearing waterproofs.
That by agreeing to this disclaimer you loose the right to sue us crap was copied straight from the disclaimers i used to see at sites distributing copyrighted material.
Ofcourse the courts will just laugh at borland, like they will lough at owners of sites with similair disclaimers.
This comes right after the section on waiving the jury trials in the full license:
14.5 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this Agreement will remain in full force and effect.
Uhhh... Shouldn't the last sentence read "See above paragraph for an example"? Seriously though, when I read it, I almost thought (hoped?) it was a hoax.
With "friends" of Open Source like these, who the fsck needs enemies??? The license for Visual(insert language here) isn't even as tight-assed as this one!
Knowledge is power. Knowledge shared is power multiplied.
It is a shame, though, when an otherwise great company does something stupid like this.
Under capitalism man exploits man. Under communism it's the other way around.
they've floated an onerous licensing scheme.
Anyone remember that period in the 80's when they tried to charge a license fee for their _runtime libraries_?
If you wanted to distribute an app you'd written using one of their compilers, you'd pay up front, then be charged a per unit royalty.
Three guesses how well that boneheaded idea went over with the developer community!
Brak: What's THAT?
Thundercleese: A light switch.. of TOTAL DEVASTATION!
So let's say nobody raises a stink and nobody buys their product. How do they know that it was the license that killed it? They could think that there's some inherent quality lapse in the product, etc. By e-mailing and telling them, they can know where that drop in sales is coming from. Really it's a polite service to them, and if you like their products for the most part, then perhaps that's valuable.
This sig has been temporarily disconnected or is no longer in service
Borland hosts numerous newsgroups at [forums.inprise.com] for their products. I think a few well-worded posts in each of the appropriate newsgroups would get their attention and many of their customers' attention. Keep in mind that they probably moderate these groups.
The market is a bit more complex than that. Borland releases a product. It sells poorly. Why? Is it because no one needs the product? Is it because the product performs poorly? Is it because no one knows about the product, or what the product will do? Is it because consumers don't like the terms under which the product is licensed? The market is more than just buy/sell transactions. It includes research, advertising and other forms of communication and feedback between buyer and seller. Consumers complaining, either publicly or directly to the company, certainly are a part of the market dynamics. They ARE part of how the market works.
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
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 only thing that I personally think is missing is good support for projects
Eh? Project support rules! Go into project manager, create a new project, then add your files into the Filesystem. What could be better?
Javascript + Nintendo DSi = DSiCade
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.
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?
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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)
You have to understand that what's written in one of these licence agreements and your actual, enforceable terms of contract are not the same at all.
The US courts always take into account the relative legal sophistication of the parties to a contract, as well as who actually wrote the contract vs. who simply clicked "I agree". A corporate lawyer may put it in the contract, and a consumer may "agree" (in any form), yet that doesn't make it so, and the lawyer has no illusions about that.
Because of the court's inherent bias based on the legal sophistication of the parties, the more sophisticated you are, the scarier the contract you have to write. The court will tell a company, "you can't claim that right now if you didn't claim it originally," but they won't say that to the consumer.
I work for a company that agressively enforces anti-piracy provisions. I don't know of a single case of a raid on an individual. We also conduct raids, but always against large-scale pirates. We either have a search warrant or we ask them to invite us in.
You may be amazed that a pirate would invite us in, but we get in by promising (honestly) much lower financial penalties if they let us in voluntarily. They know we're telling the truth because these guys are never just simple consumers who put one copy on all of his home machines. These guys are always large-scale pirates -- often serious guys with guns -- and they know the rules of the piracy game.
The contracts are written with teeth for these guys, and the courts enforce them against pros like these, but for consumers they're little more than reminders not to give away free copies.
"Those who have never entered upon scientific pursuits know not a tithe of the poetry by which they are surrounded."
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.
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.
"don't fall into the fallacy of believing that Perl can solve social problems. Maybe Perl 6 can, but that's a ways off"
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
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Doesn't say 'shall not be violated by the Government', see? So it protects you from search and seizure by anyone who doesn't have a warrant as described.
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
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
Dear Borland,
You are no doubt inundated with e-mails complaining about this, but I have recently read an article that points out some very shady clauses in the licensing for your Linux products.
Most notably I take issue with the following clauses that were pointed out in the article posted at http://freshmeat.net/articles/view/369/
12. AUDIT. During the term of this License and for one(1) year thereafter, upon reasonable notice and duringnormal business hours, Borland or its outside auditors willhave the right to enter your premises and access yourrecords and computer systems to verify that you have paidto Borland the correct amounts owed under this Licenseand determine whether the Products are being used inaccordance with the terms of this License. You willprovide reasonable assistance to Borland in connectionwith this provision. You agree to pay the cost of the auditif any underpayments during the period covered by theaudit amount to more than five percent (5%) of the feesactually owed for that period.
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.
This sounds like a company that believes it's customers to be criminal, while knowing the company itself is criminal. You have neither the demand nor the market strength to set such barriers for use and succeed. Would you grant a vendor these same rights??
I have been a customer of your company for over 10 years. From my first C compiler to the more modern IDE's offered. I have consistently paid for my software and associated licenses. Indeed, your sensible licensing terms was one of the main reasons that I was drawn to Borland software initially. Now you believe that you deserve the right to come and invade my privacy without reason. It is quite possible that I am mistaken, but I do not believe that I have ever broken your trust in the past, so why have I lost that trust??
In addition, you require that I place a greater amount of trust in your company and strip me of many of the rights I am guaranteed by law.
My computer systems contain quite a bit of sensitive data pertaining to my business, finances, life, work, and play. I have no desire to open these systems to your company simply for the right to continue paying more and more for your software.
I have a total of 11 Borland products between my home and work computer. I have 17 other co-workers with similar usage. You have lost all of our business. Perhaps you could recommend a competing product that would make a suitable replacement??
With the hard times the company has fallen on for years now, and absurd licensing terms driving away the business you have been able to retain, I also must voice my concerns for the longevity of Borland as an application provider. I cannot recommend Borland based solutions to my customers as a solution that is tenable for the future.
Not only will these predatory licensing terms end my own personal relationship with your company, but will also signal the end of the use of Borland products in my division.
Not only do your backward-ass licensing terms alienate developers, it punishes legal users of your software while doing nothing to prevent illegal use. I buy software and register, hence you can search my house. I steal software and don't register, you can't search my house. (At least not without proving that I had a copy of Kylix, et. al. in there.) It would seem that you have made the theft of your software the safest/best option for using a Borland product.
I am flabbergasted that you would consider this an acceptible license agreement, and I wonder what it was that you might have hoped to accomplish with these terms. I can only hope that like so many other products in Borland history, it will be swept up by a company who can market it even worse than you.
~Jason Maggard
Address and Phone witheld
(I don't want you showing up at my house...)
That makes perfect sense pedermj@peakpeak.com. Problem is that just like in the voting system, there is no entity saying, "risse up and be noticed if you ever want change" committee.
-
ping -f 255.255.255.255 # if only
The Constitution protects citizens against unreasonable and unwarranted search and seizure by the government. In other words, if the government wants to conduct a reasonable search of your person, papers and effects (for instance, the cop's arrested you with good cause and is frisking you), that's okay. If the government wants to come by your house and take off all the exterior siding while looking for drugs, they're going to need a warrant.
And if you sign a contract with Borland and give them permission to search your house anytime you like, nothing in the Constitution will protect you from your own stupidity.
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?
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.
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
While waiting to close on a mortgage refinance this summer I asked my attorney about the "right to enter and inspect" provision in Microsoft's license. What he said was: "Well, they do have it in the license agreement, but they still need a cop and a warrant to force their way into my house." He then reminded me that to get a warrant the officers requesting it must have some sort of evidence of a crime to proceed.
He then went on to say that the true purpose of the clause is to give them something to sue over. If you agree in the license to let them search your house, then don't let them search, they might not have enough info to sue or have you arrested for software piracy, but they can still sue for breach of contract.
This doesn't make the clause's presence in the license kosher, but it made me aware that Bill Gates and Steve Ballmer probably aren't going to show up at my house with machine guns in hand to kick the door in and inspect my network.
Who did what now?
I'd love to see them try to enforce this. First, they have to test whether EULAs in this form are actually legally binding. As far as I'm aware, there's no precedent relating to this in any major western country yet. The last thing a major software company wants to try is a court case that wins them nothing of value, but risks undermining their whole business approach and costing them an N figure sum, where N is an integer greater than lots.
Furthermore, even if EULAs distributed in this form were found to be acceptable and binding in principle, there is still the small matter of not being able to change the law just because you'd like to. Again, many western countries simply do not allow certain types of condition to be inserted into contracts, under any circumstances, and would simply find either that condition or the whole contract to be invalid if they were. Terms attempting to restrict your legal recourse in the event of a dispute are probably hot contenders here, for a start. Again, finding out the hard way would just cost Borland money and PR.
It's simply not in their interests to test this. While I agree that letting them know your feelings is important, I wouldn't panic about people consenting just yet.
Oh, and remember that this licence agreement is presumably meant to be valid anywhere. If a licence says "must be interpreted according to the laws of XYZ State" or some such, then whatever it may mean legally in the US, I'm betting that it doesn't mean jack in Europe. And (perhaps unlike our American brethren, if other comments here are anything to go by) our judges very much will laugh at the suggestion that a contract can have a higher status than the law of the land as decided in a fair trial.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
#include <standard_disclaimer> -- I am not a lawyer, and nothing here is any sort of legal advice, anywhere, ever.
Interesting premise. AIUI, in the UK, companies can normally only be legally bound by the actions of (a) their directors and (b) anyone else representing the company who has been authorised by the directors to act for the company in some nominated capacity. In that case, one has to question whether an employee opening a software licence agreement actually can open the whole company to such an audit. Anyone here know the exact law on the matter?
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
We've got to have their premises searched immediately, with dogs and everything else, because somebody over there is obviously on crack.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
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.
If only things were /that/ simple. Citizens of the United States have rights that are not enumerated in the Constitution. The 9th and 10th Amendments are our guide.
9th Amendment:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
10th Amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."
US Citizens have all sorts of rights that are not written down. Now, to the main point, on where this right of privacy lies, and its basis.
The notion that a citizen has the right to "privacy" is, as Justice Black put it (Griswald v. Connecticut), "...broad, abstract, and ambiguous..." Yet it is there. The sum of the bill of rights, and the constitution as a whole yield up what we believe the intent of the founding fathers was.
We are protected specifically against searches, we allowed freedom to speak (and to listen), and to worship as we choose. These, in addition to what is covered in the basis of British common law (the founders assumed that the common law would always be a guiding force), give this idea that people are to be free from the prying eyes of government in the course of their daily lives, and that further, when the government wishes to peek in, there must be a compelling governmental interest in doing so. Normally these privacy cases come up in the context of sexual freedom of some sort -- for those who are interested, Griswald v. Connecticut is a good start,and oyez.nwu.edu is a great resource for those so interested.
Having said all that, it turns out we're not talking about government in this case. Non governmental actors for the most part have carte blanch for anything we concensually agree to -- as long as it is not done under some sort of coersion. Giving a first born child, as someone mentioned above would probably not stand -- but more likely because one is prohibited by law to sell and/or barter people in that fashion, not because it is particularly agregious.
I sure hope they fixed their installer since Delphi 5, because in that version, you could select "I do not agree" and still click Next, and proceed with the installation.
:)
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
Licenses of the future:
"You, the customer, by clicking on the 'I accept' button, agree that you have no more rights than an insect, and we, the software company, can keep you in a jar if we want."
Or maybe:
"We, or any of our employees, can come to your house and eat your fig newtons and drink your milk. If any of your children are cute, we can take them to live with us."
In contrast, the open source licenses will continue to say: "We are giving you this software entirely as an act of technical love. It is possible that, if you need help, we will help you with your installation also."
Bush's education improvements were
It seems to be standard. If you're going to attack it, why single out Borland? Scott Adams is right again: If it weren't for lack of context, there would be no news.
Dear Borland, by reading the first line of this email you have given me an authorization to apply various legal conditions to our relationship described thereafter and hereinto to you notwithstanding
any reference herein to "not knowing what it meant to read the first line of this email."
You acknowledge
and agree that: (a) all your base are belong to Me under the US and other copyright laws; (b) You surrender all your copyrights, intellectual works and various derivative works to Me(c) there are no implied licenses under this
License, and any rights not expressly granted to you
hereunder are reserved by Me; (d) you surrender
ownership of all your base and other interest (other than your birth certificate) to Me; and (e) Me owns all copies of all your base, however made. You agree that you will not,
at any time, contest anywhere in the world My
ownership of all your base, nor will you challenge the
validity of My rights in all your base. You have no
rights hereunder to use any trademark or service mark
belonging to all your but now My base!
You can't handle the truth.
Do you accept all this a Gospel truth? If you have received a copy of Kylix (i.e Open Edition), read the license yourself. Has anybody in here actually posted a copy of the license as it exists on the Kylix disks? I've seen reprints, but nothing that seems to point to Borland. Maybe I missed it.
Even if this is true, you can bet that it will be fixed REAL fast just as other licensing screwup were fixed. I do know that the Delphi 6 license is very reasonable (even in the similarly disputed sections). I wonder if somebody didn't replace the real license with an in-house spoof and the spoof made it into production. Who knows?
But, to reject Borland and it's tools because of this is ridiculous. Give Borland a chance to respond. But, I can't help but hope for the old "like a book" license to stage a comeback and a firing of the lawyers who drafted this supposed abombination up in the first place.
RD
...creating innovative software, books, movies, music....
Somebody has to do the actual creative work so the pirates and open source developers will have something to copy.
"Those who have never entered upon scientific pursuits know not a tithe of the poetry by which they are surrounded."
Here is a copy of the JBuilder 6 license: little has changed from the JB5 license that I can see.
I was planning on upgrading my C++ Builder, but now I won't. It wouldn't surprise me if this same licence appears in all their products.
At the next eco-hypocrisy-meeting, count the private jets used to get to the meeting. Should be interesting to see that