Slashdot Mirror
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
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.
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.
http://freshmeat.net/.misc/borland-license.txt
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.
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?
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."
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.
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.
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!
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.
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.
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
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.
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?
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
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
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?
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.