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When Threatened By Lawyers for Licence Violations?
An anonymous reader asks: "I help run the a small branch-office (15 staff) in a foreign country. Today I received a letter from Borland's lawyer saying that we are illegally using their software. We spoke to the programmers and with their permission, we did a 100% check of all the staff's PC. We found NO evidence of violations. The Borland rep/lawyer mentioned that their HQ has received online registration of their commercial software in the companies name. They refused to name the software and the person involved. I told them what we did but they insist we pay. But pay for what? Borland's lawyer has given us 10 days to act and reply. I feel threaten and angry. Other than paying good money for a lawyer to defend what I view as Borland threatening us, what can I do to get Borland to pay for my wasted time and my lawyer's fee. Slashdot users, anyone has receive such threats from Borland or other companies ?" It seems that when dealing with commercial software, any vendor you deal with can level these kinds of accusations, which will result in Cease and Desist letters appearing in your CIO's inbox. Many times, these letters show up on the basis of very little and sometimes incorrect information. How can a company accused of infringement convince the software publisher that no such infraction has occurred (assuming the company is innocent) without spending a barrel full of dollars to prove it? Update: 12/26 Noon, EDT by C :A few spelling errors corrected. Sorry about that.
...lawers get threatened for license violations.
Sure, you'll lose a day or two of work for whomever you have escorting the auditors, but that has got to be less costly than a court case.
Is Slashdot really a good place to go for legal advice?
As far as I know you are still innocent until proven guilty. As them for a written statement as to the "supposed" infraction. If they are not willing to provide such a written statement then tell them you will be writing Borland HQ about this lack of ethics -IMHO. Lawyers are not my favorite people in this world. So if they still won't provide you with the information you need to track this 'supposed' infraction down tell them to shove it.
Or rather, threaten to countersue (for lost time and costs) unless they provide evidence and help you.
Tarsnap: Online backups for the truly paranoid
They are being compeltely unreasonable by not giving you any details. Refuse to cooperate until they tell you what you are supposed to have done (name of software package, name of person). Make it clear that you will cooperate if they give you the details.
Go ask a lawyer, not Slashdot. You're bound to get better advice.
"Moderate drinking can help prevent amputated limbs" -- Abigail Zuger, NYTimes, 12/31/02
Tell them what you told us: "pay for what?". If they won't tell you, don't pay. Let them make the next move.
P.S. Asking for legal advice on Slashdot is bad enough, but you didn't even say what country you're in. Different countries have different laws and legal systems.
If they do follow through, it's going to be an expensive disappointment for them, and you've got grounds to counter-sue.
Regardless, everyone's gotten a taste of Borland's business ethics from your article now. On top of that, if you do buy Borland's software, I'll also advise you all that Borland's C++ Builder comes node-locked now, and if you call them up, they're even more prohibitive about one user installing in multiple locations for his own use than Microsoft are with Visual Studio.NET.
In this case, I'm making an earnest effort to convert the dialog code we were using away from Builder. Away from Builder and to Visual C++ so that we can prevent new licneses until Borland stops being ugly.
I was about to choose between Borland's Delphi and MS's VB for my company. I think MS has more ethics than Borland. My decision is done.
1. Double and triple check your systems, including servers, workstations, laptops and any remote installations (teleworkers, etc).
Better you find out yourself than have an expensive auditor find out for you.
Make sure that all employees know that you've been contacted by Borland in this manner and that they appreciate the seriousness of the situation. Make it clear that if someone has inadvertently installed some software that they shouldn't have that now is the time to come forward, at no penalty to them, rather than later, when severe disciplinary action may be taken.
If necessary, have employees sign a piece of paper stating that they have not installed any unapproved/unsupported/unregistered applications on their PCs.
Of course, now would be a good time to audit all your software. The last thing you want is to get hit by Microsoft, Lotus, Adobe, Macromedia, etc as well.
2. Make it clear to Borland that you are willing to cooperate in any way possible, but that you have verified that you're not using any of their software illegally.
Of course, this assumes that you find nothing incriminating.
Show Borland your auditing data. Show them the licenses for all the other software that you use and reiterate that you do not use their software.
Ask them to provide further evidence so that you may investigate more thoroughly. Perhaps you're the target of a disgruntled former employee, perhaps it's a clerical error and they've got the wrong guys (you're Acme Chemicals, they're really after Acme Chemical International). Either way, explain that you're just as concerned as they are as it's in your interest to make sure that this situation doesn't occur again in the future.
3. Offer to let them have your systems independently audited at their cost.
The onus is on Borland to prove you've committed software piracy, not on you to prove that you haven't. Remember, you're innocent until proven guilty.
Ask them to back up their accusations with facts, but do so in a non-aggressive manner - getting into a you-vs-us fight before anything has been proven won't help you solve the mystery and it certainly won't help you if litigation is started.
If the matter ever does go to court, a judge will look upon you far more favourably if you can show that you were cooperative from the get-go and tried to work with Borland rather than against them.
4. If necessary, be prepared to bill Borland for any expenses you incur.
Explain to Borland that you'll help them all you can but that, when they don't find anything, they should be prepared to reimburse you for your lost time, the inconvenience caused to your business, etc.
Of course, if you want to go down this route then you're going to have even more documentation available for scrutiny. Logs showing your unscheduled audits, tracking IT personnel time, etc will be a must, as will all relevant internal and external email traffic and any legal bills, etc.
5. Ask Borland why they picked on you.
They may have had some software registered in your company's name but why are they chasing you regarding piracy? Did someone mislead them into believing that you were doing something wrong or did you match some sort of profile that typically leads them to software pirates?
Again, explain that it's in both Borland and your interest to not have this happen again. Not only does it waste their time and yours but if it happens repeatedly it leaves them open to a harassment lawsuit, perhaps from you, perhaps from the next guy it happens to.
Good luck, and let us know how you get on.
"Accept that some days you are the pigeon, and some days you are the statue." - David Brent, Wernham Hogg
You have already responded correctly. You investigated the accusation, determined that it is incorrect, and communicated your position. They are fishing, which is exactly what licensing officers get paid to do. Ignore them.
...As your website mentions analysis of pathogen load, [your company] may
require a license in at least one field, most like that of Quality
Assurance/Quality Control Testing, although I would need more information
regarding the types of samples being analyzed to determine this.
I run a biotech company and received a similar communication on Christmas Eve [Merry Christmas]:
You may not be aware that [technique] is a patented process and that performing [technique]-based service assays for third parties (or internal quality control) requires a license under patents owned by [company A]. [company B] has the exclusive right to grant licenses for this purpose in certain fields
1. A license issuance fee of US$10,000.00, which is fully creditable against the first year's royalties;
2. A royalty of 15% of the net selling price for all [technique]-based services;
3. The requirement that all such testing be carried out using Authorized [technique equipment] purchased from a licensed source;
4. Quarterly reporting of all [technique]-based services performed, along with payment of royalties.
Since we have over 115 licensees worldwide, the terms and conditions are not negotiable.[We are Borg...]
[Finally, the accusation:]
As a matter of fact, my company does not offer pathogen load testing for QA/QC, or any other service requiring a license as per their defined criteria. I responded once, and unless we offer relevant services in the future, I will not respond to further letters. They can fish elsewhere.
First entomology, then virology, and finally bioinformatics systems. Bugs follow me wherever I go.
Despite the licensing agreement, they do not have a right to inspect your computers, servers, or anything else in your personal or business property, without either a subponea (in a civil case, which you can defend against), or a warrant (which must be served by a police agent, not a software engineer or marketing wonk, and must be issued by a magistrate because there is a reasonable assumption that investigators will find criminial activities or incriminating propery pursuant to an ongoing criminal investigation). Exercise your 4th Amendment rights. You own the property, including the computers, or your company does. You reserve the right to refuse physical access to anyone, short of court orders, even if those who sold you the software disagree.
Only two things are infinite, the universe and human stupidity, and I'm not sure about the former. (Einstein)
And you are clean, why don't you just invite them to come and see?
It's really simple. Ask them to come over and look for the things that they are accusing you of.
And make them pay for your lost time. Just wait for them to call or reply to their email:
- Yeah, we don't have illegal copies of your software. Why don't you come and see?
Why is it so complicated to do this? Or is there a reason? In fact, probably later you can even counter-sue them based on "false accusations", moral damages, lost contracts because you were accused of being a thief, etc...
Buy a Nintendo DS Lite
Borland used to have (in the Turbo days) what I thought was the best license ever for commercial software, the "just like a book" license. You could do essentially whatever you wanted with the product, so long as only one person could use it at a time.
Of course, years later we have this. Granted, we're not talking about Turbo Pascal anymore - the tools are far pricier (so maybe they're a little more worried about "lost" revenue), but the restrictions they put on usage nowadays are just silly.
-- Josh Turiel
"2. Do not eat iPod Shuffle."
Is the problem that someone installed it and used it, then when the "spoke to the programmers" the programmer panicked uninstalled it quickly. So now *honestly* they dont have a copy of their software but they did use it at one point.
depends on the country in which your company is located...
here in austria i would just ignore such requests - if they sue the will loose if i haven't got any copies of their software installed. and if they loose they will have to pay the costs for the court - even my costs for the court.
in america the systems just sucks - better to corperate or move to another country... (because you will always have to pay your court costs if someone sue's you - that's ok if you're a big company, but not for an individual).
So, unless you also do an audit of your employees' private home computers (good luck!) I suspect that you're not going to find the software that Borland's complaining about.
It's also possible that Borland has a valid reason for not giving you the employee name under which this software was registered. If they realize that this scenario that I have outlined above may be the case, they might have also directly contacted that employee. If it turns out that he has not done anything wrong, then by giving you his name they might open themselves up to a slander suit by your employee.
Chris Beckenbach
Go ask a lawyer, not Slashdot.
Ask Slashdot is a tool for gathering the impressions of others who have been in the same situation. The secondhand legal advice it provides (which is not "legal advice" under the law) is useful so that the original poster can walk into the lawyer's office with at least a sense of what might happen and prepared to receive real legal advice.
Will I retire or break 10K?
Get a lawyer; if you're a small biz then you should have corporate counsel on retainer. If not, you're going to spend a couple of hundred bucks on a letter that will probably make this go away.
Sure, you might be able to get away cheaper by just licencing whatever they're bugging you about. But that'll hardly keep the wolves at bay. Pay the money for a lawyer and put the pelt on your wall.
He didn't read the article, especially the part about
the guy being in a foreign country.
I help run the [sic] a small branch-office (15 staff) in a foreign country.
Um, perhaps English is not his first language? Let's see how well you would have done with a Slashdot post in his native tongue.
Karma: Chevy Kavalierma.
This is an illustration of the hazards of using
commercial software. An enterprise operating
exclusively on open-source software would be
effectively immune to such intimadations.
-I like my women like I like my tea: green-
You might want to read the stories today about SmartPhone IP to help make up your mind.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
L I C E N C E - learn to spell, fucklunch.
just dump the borland software that you are useing. and go open source and then let borlands auditors come in and do a audit and then counter sue them for lost time and money (but don't listen to me, i'm no lawyer)
I was considering Borland's C++ compilers for a project that might be starting soon. This article has helped me immensely in my decision making process.
I won't be using Borland's products, because my legal exposure to a company eager to sue its customers would be too high. I'll use some other compiler from a company that cares about its customers.
Thanks again, this article has saved me a lot of time and expense.
If tits were wings it'd be flying around.
That aside, I'm probably with the folks who recommend the reply letter via certified mail that says "We have performed a software audit on all corporate computers and found no Borland software" etc., because that will probably end it without the necessity of the audit.
Send mail here if you want to reach me.
5. Company X contacts Borland to clear up innocent misunderstanding;
6. Borland management opt to be rude time-wasting secretive jerks.
I think it's that last part that bothers folks.
It is the responsibility of Borland to convince anyone who uses their software that they are to pay some desired amount. No-one is ever entitled to payment in this wonderful system of free enterprise.
How we know is more important than what we know.
You say you are going to stop using Borland because you don't like the whip hand that you live under and yet you're migrating to Microsoft? Hello? Perhaps you should investigate Free Software and liberate yourself.
How we know is more important than what we know.
1. You say you are a branch office, then turn them over to the corporate lawyers.
2. No matter what, this is a legal problem so you really need to talk to a lawyer.
However, my opinion, whatever that means.
1. It seems since you have the license to use the product, they should provide the name and address of the person who is trying to install it.
2. How do you know the Cease and Desist letter is for real? Are you contacting them through the contact info in the letter or are you contacting them through other means.
3. You say everyones computer is clean, how about their home computer?