Articles / An Open Letter to Borland/I…

An Open Letter to Borland/Inprise Concerning Licensing

First, I want it to be clear 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 license provisions which I feel are both invasive and 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 purpose of verifying compliance with this license. In other words, we forfeit our right of privacy at our facilities or our homes -- a right which we are guaranteed under the Constitution -- simply to satisfy you that we are not cheating on a license. There will never be a circumstance under which I will allow Borland or any other greedy software company to invade my home without a warrant authorized by a court of law. In my opinion, you have no right to even ask for such a thing.

Besides privacy, another concern shared by many 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 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 which 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 to 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 unlawful, they cannot collectively seek remedy. Are you afraid that a jury trial might be costly, and rule against you? Jury trials by definition are "trial by peers". A public trial results in many things, including bad public relations. Bench trials are commonly used when actions are to be kept confidential. I strongly question your motives on this point, especially considering Provision 12.

First, we must forfeit our right to privacy, then we must give up our traditional protections and right 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 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 Web site in the future, 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 software from Borland or any other vendor 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 this manner, I will seek a new platform.

This matter has weighed heavily in my decision to purchase new Borland software. I will be frank: I never purchase or use any software with this license, or any with similar provisions from any vendor, period. I want to remain a Borland customer, so I do hope this matter can be resolved quickly and amicably.

[Editor's notes:

T.J. only mentions a couple of the problematic sections of the license; you can view a copy of it here. It has all the usual bizarre clauses of a closed-source use-it-on-one-machine you-buy-it-but-don't-own-it license, made more jarring by references to the GPL.

The most disturbing part is that, while there are sections that only apply to certain editions, most of the license applies to all of them, including Kylix Open Edition. While it's an interesting idea to release an "Open Edition" that can only be used to create GPLed software, they're going about it in a very confusing way. Here's what I can gather:

  1. You can have Kylix Open Edition (for creating GPLed software only) free of charge.
  2. However, you have to register it.
  3. They reserve the right to come to your house and confirm that your ("free") copy is registered.

It's free as in beer, but not as in reasonable search and seizure.

I imagine these clauses were only meant to apply to the Professional and Enterprise versions (not that that excuses them), but, well, there they are.

BTW, we mirrored a copy of the license ourselves because this is what you have to do to get one:

  1. Go to Borland's downloads page.
  2. Create a user account on their "community" site. This involves giving them your name, your telephone number, your company's name, and your address (all these are required), then choosing whether or not to remove the checkmarks from these on-by-default options:
    • YES! Sign me up for e-mail notification of new products, services, and special offers.
    • YES! Send me information on new products, services, and special offers via postal mail.
    • YES! Sign me up for telephone notification of new products, services, and special offers.
    • YES! Sign me up for facsimile notification of new products, services, and special offers.
    • YES! Sign me up for weekly email notifications of what's happening on the community site.
    No, I'm not joking.
  3. Download a 29MB tarball.

Personally, I think that's indicative of a certain need for clue of which the license is probably only one of many examples.]

Recent comments

26 Jan 2002 13:53 Avatar MoonJihad

Re: The unfortunate part...
http://www.gnu.org/fun/jokes/purchase.agreement.html

26 Jan 2002 00:02 Avatar mystran

Re: Knock Knock, bad business practice!!


> "Borland charges extortionatly
> high prices for software" well then
> what are you whinning about ?! if they
> can curb software piracy the price goes
> down obviously. This is not a
> "perhaps" or
> "hopefully", the hard facts
> are that piracy costs money. Your
> contradicting yourselves complaining
> about them taking a hardline on software
> theft then about the prices they
> charge.


Only that in many cases the losesses are calculated something like this: price * illegal copies which is not quite right, since many of the people with illegal copies just don't have the money. They won't buy a product just because they can't get it free. They will seach for something else.
I am one of those. But I don't do piracy. Instead I use, and encourage others to use, free software.

I used to like Borland C++ 3.1 years ago (before DJGPP that is), but the Windows versions wheren't that good, and then I moved to Linux.

And the best part, by always favoring the GPL'ed alternative I save a lot of time as I already know the license and don't need to run it through again with every new program. You know, those licenses tend to be long.

19 Jan 2002 21:48 Avatar mindsuck

Re: Cool, when will Borland invade MS?

> By reading this message you give me
> full access rights to not only you
> systems but your families, your friends'
> too. It also gives me the right to
> access your freezer and taste your
> ice-cream.


But... but... that's my icecream! *cries*

18 Jan 2002 10:27 Avatar DontTreadOnMe

Such Licenses Should be Clearly Marked on Freshmeat
Although Borland has gracefully backed down (and, with any luck, fired the hapless lawyer who authored that clause in the first place) and has promised to fix the terms of the license (has anyone seen the new license and verified its acceptability?), I do think freshmeat and other sites which collect pointers to software products should identify commercial licenses which such onerous strings attached.

Rather than identifying commercial licenses as "commercial license" there should be at least 3 categories, perhaps more depending on what kind of unacceptable conditions appear and are identified:

1) "commercial license - not screened for acceptability"
2) "inoffensive commercial license"
3) "license requires user to waive basic constitutional rights re: search and seizure"
and so forth.

In other words, systematically identify and warn folks about these sorts of licenses in the very product description/database, rather than simply relying on ad-hoc letter writing campaigns, word of mouth, and loud public outrage. The latter can simply be overwhelmed by a plethora of unacceptable licenses (after the 30th story on the subject, how many would be listening?), while a simple identifier in the license description would scale to a billion such licenses, if need be (perhaps with a bright red skull and crossbones icon to drive the point home).

16 Jan 2002 19:40 Avatar jeffcovey

Borland has changed its mind
Borland has said it will change the license. You can find the
Slashdot coverage <a
href="http://slashdot.org/article.pl?sid=02/01/16/1334248&mode=nested">here.

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