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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.
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.
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.
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."
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?
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-