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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."
...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?
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.
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.
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.
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."
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!
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.
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.
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?
You may have purchased a copy of the software, but you have not purchased the right to use that copy. See, to use it, you generally have to copy it to your hard disk, and copyright gives exclusive rights over reproduction (not just distribution to a third party) to the copyright holder. In exchange for them granting the right to install, you have to submit to the licence conditions.
Insane? Absolutely. What we need is copyright that only grants exclusive rights to distribute copies, not to make copies generally. It's a lot more sensible, since it protects only what copyright was originally intended to protect, and it would render these stupid EULAs void for a failure of consideration (i.e. the copyright holder isn't giving you any rights you don't already have, so they can't demand that you submit to draconian licence terms in exchange for nothing in return).