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Borland Kylix/JBuilder License Reviewed 319

Posted by michael from the firstborn-son dept.
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."
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Borland Kylix/JBuilder License Reviewed More

Borland Kylix/JBuilder License Reviewed

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  • True competition (Score:3, Funny)

    by Therin ( 22398 ) <slashtherinNO@SPAMbjmoose.com> on Saturday January 12, 2002 @02:43PM (#2829470) Homepage
    I guess they really want to compete with M$ - remember the FrontPage license?

    • Re:True competition (Score:3, Interesting)

      by Jaysyn ( 203771 )
      The funny thing is, if you didn't have a license, and they came on site without permission, they could be charged with trespassing.

      Jaysyn

  • Out of control. (Score:4, Insightful)

    by actappan ( 144541 ) on Saturday January 12, 2002 @02:43PM (#2829475) Homepage
    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?

    • Re:Out of control. (Score:3, Insightful)

      by bnenning ( 58349 )
      IANAL, but as far as I'm concerned, having already purchased the software, whatever buttons I do or do not click on are of no legal significance whatsoever. If a software publisher wants we to agree to ludicrous licensing terms, they are free to present me with a contract before selling me their product.


      (Of course, whether a judge agrees with this is another matter entirely.)

      • Re:Out of control. (Score:5, Insightful)

        by cthugha ( 185672 ) on Saturday January 12, 2002 @09:47PM (#2830863)
        IANAL, but as far as I'm concerned, having already purchased the software, whatever buttons I do or do not click on are of no legal significance whatsoever. If a software publisher wants we to agree to ludicrous licensing terms, they are free to present me with a contract before selling me their product.

        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).

        • Re:Out of control. (Score:3, Informative)

          by bnenning ( 58349 )
          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


          Section 117 of the Copyright Act was supposed to prevent this kind of idiocy by clarifying that users can make copies of software if that is an "essential step" in its use (like copying to a hard drive or RAM). Unfortunately as this article [arentfox.com] shows, copyright holders have managed to convince some judges that the law doesn't mean what it says.


          It would be great if the EFF could take up this issue, although I suppose they have their hands full at the moment dealing with other insane copyright laws.

        • Re:Out of control. (Score:3, Interesting)

          by 3247 ( 161794 )
          You may have purchased a copy of the software, but you have not purchased the right to use that copy. [...] Insane? Absolutely.

          This is why it is only true in (pardon the pun) absolutely insane legal systems. The EU Copyright Directive uses a completly different approach: If you buy a copy, you may use it. Period. The Directive does not say what to do with shrinkwrap licenses but in Germany, for example, it has no legal siginifcance at all. (This is not due to lack of consideration, a concept alien to Continental European law. It's simply because the user can not be said to have concluded an agreement just by clicking on a button to use the software s/he already has paid for.)
          Then there are strong laws that nullify clauses of a contract that a surprising or unreasonable.
          This, however, has not yet been noticed by lawyers of US-centric software companies; they simply translate the licenses to produce a "foreign version".

    • Re:Out of control. (Score:4, Insightful)

      by LinuxInDallas ( 73952 ) on Saturday January 12, 2002 @03:16PM (#2829611)
      We all have. What's worse is that news like this never ends up in the mainstream media which means the average computer user/software buyer never hears of this. Without their support/outrage, we won't be able to change much since the Slashdot crowd is a minority of the computer users out there.
      • What's worse even than *that* is that even the Slashdot crowd works to some extent in companies (such as my own) where they are pigeon-holed into acquiescing to these sorts of laughable licensing schemes.
        I just recently clicked "accept" on this very product. My company (more specifically my project manager) just bought three licenses to this thing.

        Honestly, I don't think these sorts of clauses would change our "corporate mind", but I *definitely* would not have bought the software with this in mind.
    • The truely scary thing, is how many of us have simply clicked "I accept." to something as invasive as this?

      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.

  • Is the license still in place?

  • UCITA (Score:3, Interesting)

    by DaveWood ( 101146 ) on Saturday January 12, 2002 @02:44PM (#2829480) Homepage
    Any lawyers want to comment on the impact of UCITA in legitimizing such a license - actually making it enforcable?

  • I will make a bet... (Score:5, Insightful)

    by jerw134 ( 409531 ) on Saturday January 12, 2002 @02:46PM (#2829491)
    ...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?

    • This isn't the first time... (Score:5, Informative)

      by pedro ( 1613 ) on Saturday January 12, 2002 @03:51PM (#2829736)
      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!

    • Not reading the license is the problem. (Score:5, Insightful)

      by westfieldscientific ( 240349 ) on Saturday January 12, 2002 @05:39PM (#2830164) Homepage
      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.

    • Let me think, oh there it is:

      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.

  • Check with your lawyers (Score:3, Insightful)

    by wayn3 ( 147985 ) on Saturday January 12, 2002 @02:48PM (#2829495)
    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.

  • Some rights can't be signed away. (Score:5, Interesting)

    by cperciva ( 102828 ) on Saturday January 12, 2002 @02:50PM (#2829502) Homepage
    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.
    • If you agree to this license, even if it is not legal, that has to be decided by the courts. So, when Borland Vice comes knocking, what do you do? Let them see your computer, or hire a lawyer? Since you forfeited your rights to certain types of trials, you will have to go to another judge to get to a court you may wish to be in. As we saw with Suse earlier, and Killustrator before that, and probably will see soon with Lindows, sometimes the cost of fighting it is not worthwhile. Luckily, 2600 and the EFF is willing to stand up to corporate bullies like this.
      • When Borland vice show up at my house, they're going to have bigger problems than a lawyer. I don't have to let them in my house. If they step over the front doorstep without my permission, I would consider that breaking and entering, in which case they have about 30 seconds to get the hell out before I start shooting. Which is also probably the reason they would NEVER enforce this.
        • Well, corporations have a habit of using the state's police to enforce their licenses (cf. Sklyarov, Johannsen, etc.) If you pull a gun on the FBI, even on your own property, they will kill you, and probably burn down your house too.

    • Re:Some rights can't be signed away. (Score:5, Informative)

      by sphealey ( 2855 ) on Saturday January 12, 2002 @03:42PM (#2829708)
      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.
      Unfortunately, that turns out not to be the case. If you have ever traded stocks, you signed a similar document when you opened your account with your stockbroker. The courts have consistently upheld these agreements. Employees of stockbrokers sign the same agreement, and the courts have held that these agreements supercede just about any federal law as well. For example, employees of stockbrokers cannot sue their employer for racial discrimination in hiring/promotions, but must submit to arbitration instead. Since the arbitration panels are selected by "industry peers", which is to say the management of other financial employers, the employee doesn't have much of a chance.

      sPh

      • Yea, that sounds extremely weird considering the Constitution upholds trial by jury in matters of common law.

        Amendment VII:

        In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
        I can't see how that can be violated and ignored by any competent judge.

    • Re:Some rights can't be signed away. (Score:5, Funny)

      by Waffle Iron ( 339739 ) on Saturday January 12, 2002 @03:46PM (#2829718)
      Even if both parties agree to a contract, if the contract is grossly unfair it can (and will) be struck down by the courts.

      This sure makes me feel better. I signed a contract a while back with a very shady character (he was weird ... one of his feet looked like a hoof or something!).

      Anyway, the deal was I would get tons of $cash, universal adulation and as many beautiful women as I care to know. He even threw in a free fiddle made of gold as a bonus. In return I would surrender my soul for eternal damnation (or something like that; I just skimmed the fine print).

      Life's been great lately, but I've been beginning to worry about my end of this deal. I'm really glad that it won't actually hold up in court. Man, it looks like that guy was a sucker!

    • The right way, the wrong way, the legal way (Score:5, Interesting)

      by fm6 ( 162816 ) on Saturday January 12, 2002 @04:04PM (#2829806) Homepage Journal
      Indeed. If you own a house, take a look at the covenants imposed upon you by the original developer. If your house is more than 30 years old, there's a good chance that in buying the house, you agreed not to sell to a person of color. Quite unenforcable, of course.

      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 [duhaime.org], 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.

    • That depends... (Score:3, Insightful)

      by sterno ( 16320 )
      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 [bigbrother.net] 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?

    • True, and more... (Score:5, Informative)

      by GCP ( 122438 ) on Saturday January 12, 2002 @04:08PM (#2829822)
      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.

  • Anyone remember how cool Borland used to be? (Score:5, Interesting)

    by pythas ( 75383 ) on Saturday January 12, 2002 @02:51PM (#2829504)
    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.
  • We all slam M$'s licensing tactics and then something even more extreme like this comes out.

    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.

  • Tip for those who seek an alternative to JBuilder (Score:3, Informative)

    by Anonymous Coward on Saturday January 12, 2002 @02:56PM (#2829524)
    Checkout NetBeans [netbeans.org]. 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.

  • What if the rest of the world worked this way? (Score:5, Insightful)

    by sid_vicious ( 157798 ) on Saturday January 12, 2002 @02:58PM (#2829533) Homepage Journal
    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.
    • Well, with all the advertising Kellog's has been doing about the health benefits of Jagged Metal Krusto-O's, from the fact that it has 100% of your required daily intake of iron to the fact that the cardboard it's packaged in is environmentally friendly... not to mention that its major competition: Captain Crunch, was recently discovered to have been coated with Drain-O crystals (which can help alleviate stomach irritation!), I mean... what court would seriously consider the license unfair: there's been lots of lawsuits against these poor cereal manufacturers over "defective" products that are not only not defective, but beneficial to the customer! Corporations are double-plus good!

      Apparently, you haven't seen the latest Windows XP commercials! It cures cancer, saves whales, and doesn't go soggy in milk. Corporations Are Our Friends. Now, for our Five Minute Hate... today's object: One Mr. Tux Penguin.

      • ...not to mention that its major competition: Captain Crunch, was recently discovered to have been coated with Drain-O crystals..

        Noooooooo! Not Cap'n Crunch!
        :-P

        What they *do* need to coat that stuff with is something to keep it from shredding the roof of my mouth when I eat it.

        There's something about that non-nutritive cereal varnish (semi-permeable, but non-osmotic) that just leaves me hurting after a bowl or two.

  • Bad Time to Lost Customers (Score:5, Insightful)

    by Anonymous Coward on Saturday January 12, 2002 @02:59PM (#2829538)
    I really want to use Kylix. I've been pushing it at work and actually started making progress early this week. I was to download the software this weekend, learn it, and demo it to the development staff next Wednesday.

    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.

    • 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.

      #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?

  • Link to license (Score:2, Informative)

    by metatruk ( 315048 )
    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 [freshmeat.net]

  • A link to the ACTUAL license... (Score:3, Informative)

    by gifmastr ( 105428 ) on Saturday January 12, 2002 @03:04PM (#2829571) Homepage
    Here is a link to the actual license...

    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 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.
    • 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?

      When was the last time I ever effected you or anyone you know? Have you seen any news lately about me breaking down doors?

      I didn't think so. Now will you sign this document saying I can break down your door, take your dog, TV, and CD collection. It's perfectly harmless to do so, I mean you just admitted that I haven't done it to anyone you know, nor has the news told you I've done it to anyone else.

      It's not a stupid principal. If you don't want anyone taking your dog, don't sign paper saying they can. If you don't want anyone to shave your head and paint "I'm a sucker" on it, don't sign paper saying they can.

      After all just because Borland (or I!) have not yet asserted our rights under those contract doesn't mean we won't. It may just be we are both waiting until there is something worth blowing our cover for (A valuable Klyx program, somebody with a lot of good CDs, or a really cool dog). Maybe future Borland management will be less kind, or Borland will get sold to somebody less kind (Microsoft...or me!).

      I'll have to add a new clause to w3juke [sourceforge.net] giving me the right to shave user's heads. I mean someday I might run into someone dumb enough to have agreed, and they might piss me off a little...or maybe they are trying to hit on my wife...maybe i should put the dog thing in too, I could use some more pre-trained dogs...

  • not Borland's fault (Score:5, Interesting)

    by Dr. Awktagon ( 233360 ) on Saturday January 12, 2002 @03:06PM (#2829576) Homepage

    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's not bad until... (Score:4, Interesting)

    by 7608 ( 515533 ) on Saturday January 12, 2002 @03:10PM (#2829590)
    It's not bad until some court decides to uphold the license. This is one of the things I find most reprehensible about licenses and contracts in general, and the thing that our constitution was specifically designed against: The concept that your rights are inaliable. Nobody can take them away, you can't sign them away or agree not to excercise them. They are yours, free and forever yours, to excercise whensoever you desire, without restriction. That is, afterall, what the meaning of a 'right' is.

    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.

    • free market (Score:5, Insightful)

      by markj02 ( 544487 ) on Saturday January 12, 2002 @04:26PM (#2829900)
      There is nothing wrong with Smith, Keynes, and the other economists: free markets work, and they work well. The problem is that our economy is increasing not a free market economy. You cannot have a free market economy in which the economy is dominated by a few large players (even if they are publically traded). You cannot have a free market economy in which players can buy the lawmakers. And a "free market" doesn't mean absence of government regulations, it means plenty of government regulations that create a level playing field for economic agents. "Free" there refers to the freedom to decide who you trade with at what price, it doesn't mean freedom to do anything you want.

      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.

      • Re:free market (Score:4, Insightful)

        by Rogerborg ( 306625 ) on Saturday January 12, 2002 @07:08PM (#2830476) Homepage
        • You cannot have a free market economy in which the economy is dominated by a few large players (even if they are publically traded)

        I think "publically traded" is largely an irrelevance now. It conjures up images of crowds of shareholder meetings full of mom and pop investors waving their umbrellas and demanding fair play.

        As you go on to say, the problem is that a few individuals control all the money/resources/power. The majority of shares in any given company are controlled (maybe not owned, but controlled) by a few individuals, either owned directly or controlled fund managers. Mom and pop are happy to abdicate their moral responsibilities to their fund manager, and just count the profits. It's all about the money. Principle, even legality is irrelevant. Look at Microsoft - a convicted monopolist, and yet the board continues on, because they smile and promise to keep those profits coming, regardless of trifling inconveniences like the government or the courts. They're as much as saying that they'll just ignore any judgement, and that's what the shareholders want to hear, because it means more profit.

        And that'll apply to Borland. There's no point emailing them and ranting about rights and principles. The only language they'll hear (now that they've gone Dark Side) is money, and the results of their actions now won't show until next quarter.

        So make them listen by speaking their language. Either don't buy their products, or better, buy their products and then return them. When you return them, then you can tell them it's because of the license, because - believe me - that's the only time that they'll care.

    • The concept that your rights are inaliable. Nobody can take them away, you can't sign them away or agree not to excercise them.


      Um, no. Ever hear of a non-disclosure agreement? A right being inalienable means that noone else can take it way; with many (although not all) rights, you can agree not to exercise it and, yes, expect to have that agreement enforced..

      • All of the definitions that I've read of inalienable state that an inalienable right can't be waived, sold or given away, even if the person wishes to do so. I can't sell myself into slavery.
    • Adam Smith, Maynard Keynes

      I think you give Smith and Keynes both less and more credit than they deserve. AFAICR, both had an excellent understanding of the way that powerful players can tip the scales to the detriment of society. Certainly Smith understood this, and when he opposed government intervention in the market, he meant largely that the British crown should not grant trade monopolies to companies involved in exploited Britain's new overseas colonies. Keynes saw financiers as ruthless people who would stop at nothing in pursuit of wealth and power, and estimated that it was better to let them amass it legitimately than to turn to criminal activity.

      I think that, unfortunately, the modern businessman's understanding of Smith and Keynes is generally crude and lacking in subtlety. I doubt most have read and understood The Wealth of Nations. Undoubtedly many have read and appreciated Ayn Rand's works, however.

      Disclaimer: I myself have never actually read any complete works of either Smith or Keynes, I have formed my perceptions of them based on bits I've read and that I've seen others discuss over the years.
  • 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...

  • A lawyer please verify (Score:4, Insightful)

    by demaria ( 122790 ) on Saturday January 12, 2002 @03:17PM (#2829613) Homepage
    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.

    • Not quite (Score:2, Funny)

      by amcguinn ( 549297 )
      The constitution protects you from theft, but if you contract to pay someone, then you owe them the money (which isn't the same as giving them the right to pick your pocket).

      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.

    • > 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.

      Tell it to Dennis Erlich and Arnaldo Lerma and
      to Bob Penney, whose homes were searched and
      whose computers, disks, and paper records were
      seized by privately employed goons pursuant
      to _ex_parte_ writs of seizure --

      all on the basis of flimsily-documented
      allegations of copyright violations.
    • I'm fairly sure(*) that the the constitution protects private individuals against unwarranted search and seizure by the government and it's agents (police). 'search and seizure' by individuals or corporations is also known as B&E, Burgulary, Theft or Trespass.

      (*)It's not my constitution
      • it doesn't say anything about the government.

        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 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.

  • All purpose license (Score:5, Interesting)

    by DaoudaW ( 533025 ) on Saturday January 12, 2002 @03:19PM (#2829623)
    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.
    • 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...)

  • Has states gone competely nuts? (Score:4, Insightful)

    by nusuth ( 520833 ) <(moc.oohay) (ta) (su0000_oooo)> on Saturday January 12, 2002 @03:27PM (#2829651) Homepage
    Such a licence cannot be enforced in my country even though our laws are much more gestapoish compared to U.S. I don't think it can be enforced in states either.

    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.

  • What Is With Borland's Lawyers? (Score:5, Insightful)

    by Black Art ( 3335 ) on Saturday January 12, 2002 @03:30PM (#2829659)
    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?

  • The not sue-ing clause was copied from warez sites (Score:3, Funny)

    by sepulcrum ( 161180 ) on Saturday January 12, 2002 @03:33PM (#2829673)
    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.

  • *snicker* (Score:3, Funny)

    by kikta ( 200092 ) on Saturday January 12, 2002 @03:35PM (#2829682)
    This comes right after the section on waiving the jury trials in the full license [freshmeat.net]:

    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.

  • So much for learning Kylix... (Score:3)

    by MsGeek ( 162936 ) on Saturday January 12, 2002 @03:36PM (#2829687) Homepage Journal
    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!
  • I guess I won't be trying out Kylix then. It's too bad, really. I learned to program on Builder and I liked the IDE much better than MSVC++. No big loss for me, though. vi/gcc/gdb serves my purposes just fine.

    It is a shame, though, when an otherwise great company does something stupid like this.

  • Go tell it on the Borland forums (Score:3, Informative)

    by Caractacus Potts ( 74726 ) on Saturday January 12, 2002 @03:56PM (#2829770)
    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.

  • As forecasted earlier on K5 (Score:4, Interesting)

    by Agent000 ( 153551 ) on Saturday January 12, 2002 @03:59PM (#2829786) Homepage
    This news is interesting, as less than a month ago I wrote an article for K5 entitled "A Visit from the Software Gestapo" [kuro5hin.org], talking about the possibilities of companies taking piracy laws into their own hands.

    Greg GregCorp.com... why yes, it is my life's work! [gregcorp.com]

  • Consumer, Strike Back! (Score:3, Interesting)

    by peccary ( 161168 ) on Saturday January 12, 2002 @04:07PM (#2829817)
    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)

  • Hey... (Score:3, Insightful)

    by Greyfox ( 87712 ) on Saturday January 12, 2002 @04:30PM (#2829920) Homepage Journal
    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.

  • Borland used to have great licenses (Score:3, Interesting)

    by red_crayon ( 202742 ) on Saturday January 12, 2002 @04:53PM (#2830014)
    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.

  • Sending a letter (Score:5, Insightful)

    by lblack ( 124294 ) on Saturday January 12, 2002 @05:26PM (#2830120)
    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

  • Borland won't comment until Monday (Score:5, Interesting)

    by djmurdoch ( 306849 ) on Saturday January 12, 2002 @06:52PM (#2830434)
    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?

  • Self-destruction (Score:3, Interesting)

    by Futurepower(tm) ( 228467 ) <M_Jennings @ not ... futurepower.org> on Saturday January 12, 2002 @09:15PM (#2830798) Homepage

    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? [hevanet.com]
  • 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.
  • Comment removed based on user account deletion

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