---------- Forwarded Message ---------- Subject: Revised Borland Protest letter Date: Sat, 12 Jan 2002 10:25:28 -0600 From: T.J. Duchene <linuxman at worldwebcafe.com> To: support at mncla.org;lessig at eff.org;webmaster at eff.org;webmaster at freshmeat.org; sstroud at borland.com;webmaster at zdnet.com;webmaster at lokigames.com;webmaster at mozilla.org;tclug-devel at mn-linux.org;webmaster at redhat.com;webmaster at slashdot.org; webmaster at debian.org;webmaster at gnome.org, webmaster at kde.org, webmaster at opensource.org;outatym1 at ecenet.net;webmaster at aclu.org An Open Letter to Borland/Inprise Concerning Licensing (Revised) January 19, 2002 To: Borland/Inprise Corporation From: T.J. Duchene Subject: License Policy for your Software under Linux First, I want to be clear in that I have been a Borland customer for many years, and have used your products over competitors' offerings, whenever possible. I feel that I cannot remain silent after reviewing your recent license agreements. I had a very unpleasant surprise when I decided to test JBuilder 5, and Kylix 2 Open Edition. Both of these products were designed for the Linux operating system. After reading the license, I immediately aborted the install procedure. Both have a license provisions which I feel are both invasive, as well as ethically and morally reprehensible. To begin, I quote your own license: 12. AUDIT. During the term of this License and for one (1) year thereafter, upon reasonable notice and during normal business hours, Borland or its outside auditors will have the right to enter your premises and access your records and computer systems to verify that you have paid to Borland the correct amounts owed under this License and determine whether the Products are being used in accordance with the terms of this License. You will provide reasonable assistance to Borland in connection with this provision. You agree to pay the cost of the audit if any underpayments during the period covered by the audit amount to more than five percent (5%) of the fees actually owed for that period. We are to grant you access to our work and materials, for the purposes of verifying compliance with this license. In other words, we forfeit our rights of privacy at our facilities or our homes - a right which we are granted under the law, simply to satisfy you that we are not cheating on a license. There will never be a circumstance, that I will allow Borland or any other greedy software company to invade my home without a warrant authorized by a court of law. You have no right to even ask for such a thing, in my opinion. Another concern shared by many beside privacy is the protection of intellectual rights and property. What guarantees do I have that your company or your auditing personnel will not exploit time spent accessing my systems to either steal, compromise, or contaminate my data security, non-disclosure agreements, intellectual rights or patents on software I may have in development? I would say none. Even if you promised, how could you realistically enforce it? Once something has been viewed, you can't un-view it. Your license doesn't even specify which products on computer systems you want to view. One or all? Windows, OS/2, AS/400 or Linux? Private citizens, students, nor any company ever commissioned have any intentions of allowing a single vendor complete access to an entire network/system for one piece of software, either working in the public interest on GNU software or in the private sector. Anyone I know would not use that vendor's products rather than agree to such a compromise of security. Also, in the same license, you require us to waive our right to settle any dispute in jury fashion, and give up our rights to class actions. Again, I quote from your license: 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. If a number of people decide that your license is inappropriate, they cannot collectively seek remedy. First, we must forfeit our rights to privacy, and then we must give up some of our traditional protections and rights to resolve grievances under the law. I believe you are asking too much from programmers and other users, who have looked to your company for years to provide quality development software on many platforms. In creating this license, I feel you have betrayed the trust that you have engendered over the past years. Where you once created "no nonsense" licenses, that made me proud to be a Borland customer, you have now created a license that I must publicly protest, to inform the public community of this travesty. To do this in good conscience, I have taken the following steps: 1.This letter will not only be posted publicly on my website in the future, but it will also be sent to any persons/sites/projects, as I see fit via email. 2.Before this letter is sent, I will destroy all copies of your software in my possession with the offending license. 3.From this point on, if I download or purchase any software from Borland or any other company that contains this license or one with similar provisions, it will be returned or destroyed immediately. 4.I will inform my colleagues, and clients of this license, and advise them to avoid any Borland or any other vendor's software that contains these provisions, until you and the industry change license and company policies. 5.If I am informed of any previous products on any platform being retroactively licensed in such a manner, I will discontinue using them immediately. I use C++ Builder 3 Professional as my preferred development platform for Windows, for example. If this software is retroactively licensed in that manner, I will seek a new platform. The matter has weighted heavily in my decision to purchase new Borland software. I will be frank. I never purchase or use any software with that license, or any with similar provisions from any vendor. Period. I want to remain a Borland customer, so I do hope that this matter can be resolved quickly and amicably. T.J. Duchene Notes: In the original letter, apparrently I made a few legal mistakes in my interpretation of the law. As I am not a laywer, but a programmer, I imagine a few mistakes are envitable. The basic point remains untouched. That this is an invasion of privacy, abeit a legal one as you are actually giving them permission to do so. The mistakes I made are simple ones, but as with all law it seems - its the details that matter: 1 .Privacy is not "guaranteed" by the Constitution. Illegal search and seizure is. This helps form the basis of our legal stance on privacy. 2. I was correct in the original letter that bench trials are a judge only. It has been pointed out to me that jury trials are ususally used for criminal proceedings. What Borland is requiring is that we limit our legal options to a dispute with them and a judge. What I protest is the activity granted by this kind of license. Should it become allowed to continue, it not only encourages other companies to adopt the same stance, but could destroy or at least compromise property and privacy rights on computer data, due to its general nature, in my opinion. My desire is to get the issue out there in the open where it can be discussed. -------------------------------------------------------