The no-nonsense license
Anders Ohlsson (Borland)
what we have today. One initial remark from myself - you never owned the product, you
always licensed it from us.
No-Nonsense License Statement
This software is protected by both United States copyright law and
international copyright treaty provisions. Therefore, you must treat
this software just like a book, except that you may copy it onto a
computer to be used and you may make archival copies of the software
for the sole purpose of backing-up our software and protecting your
investment from loss.
By saying "just like a book," Borland means, for example, that this
software may be used by any number of people, and may be freely moved
from one computer location to another, so long as there is no
possibility of it being used at one location while it's being used at
another or on a computer network by more than one user at one
location. Just like a book can't be read by two different people in
two different places at the same time, neither can the software be
used by two different people in two different places at the same time.
(Unless, of course, Borland's copyright has been violated or the use
is on a computer network by up to the number of users authorized by
additional Borland licenses as explained below.)
LAN Pack Multiple-Use Network License
If this is a LAN Pack package, it allows you to increase the number of
authorized users of your copy of the software on a single computer
network by up to the number of users specified in the LAN Pack package
(per LAN Pack -- see LAN Pack serial number).
Use on a Network
A "computer network" is any electronically linked configuration in
which two or more users have common access to software or data. If
more than one user wishes to use the software on a computer network at
the same time, then you may add authorized users either by (a) paying
for a separate software package for each additional user you wish to
add or (b) if a LAN Pack is available for this product, paying for the
multiple-use license available in the LAN Pack. You may use any
combination of regular software packages or LAN Packs to increase the
number of authorized users on a computer network. (In no event may the
total number of concurrent users on a network exceed one for each
software package plus the number of authorized users installed from
the LAN Pack(s) that you have purchased. Otherwise, you are not using
the software "just like a book.") The multiple-use network license for
the LAN Pack may only be used to increase the number of concurrent
permitted users of the software logged onto the network, and not to
download copies of the software for local workstation use without
being logged onto the network. You must purchase an individual copy of
the software for each workstation at which you wish to use the
software without being logged onto the network.
Further Explanation of Copyright Law Provisions and the Scope of This
License Statement
You may not download or transmit the software electronically (either
by direct connection or telecommunication transmission) from one
computer to another, except as may be specifically allowed in using
the software on a computer network. You may transfer all of your
rights to use the software to another person, provided that you
transfer to that person (or destroy) all of the software, diskettes
and documentation provided in this package, together with all copies,
tangible or intangible, including copies in RAM or installed on a
disk, as well as all back-up copies. Remember, once you transfer the
software, it may only be used at the single location to which it is
transferred and, of course, only in accordance with copyright law and
international treaty provisions. Except as stated in this paragraph,
you may not otherwise transfer, rent, lease, sub-license, time-share,
or lend the software, diskettes, or documentation. Your use of the
software is limited to acts that are essential steps in the use of the
software on your computer or computer network as described in the
documentation. You may not otherwise modify, alter, adapt, merge,
decompile or reverse-engineer the software, and you may not remove or
obscure Borland copyright or trademark notices.
(From "Paradox for Windows")
--
Anders Ohlsson - Borland Developer Relations - http://community.borland.com/
Come to Anaheim! Best BorCon ever! - http://www.borland.com/conf2002/
Get the #1 Java IDE! - http://www.borland.com/jbuilder/
Get Kylix now! - http://www.borland.com/kylix/
Cycling to cure cancer - http://homepages.borland.com/jkaster/tnt/
http://homepages.borland.com/aohlsson/disclaimer_ani.gif
J Hall
wrote...
Hi,
> I just wanted to post this for you guys to tear apart and compare the bits and pieces with
> what we have today.
I understood all of that, without having to pay a lawyer <g>
J
Jan Emil Larsen
"Anders Ohlsson (Borland)" <aohl...@borland.com> skrev i en meddelelse
news:3C6BCCA3...@borland.com...
> I just wanted to post this for you guys to tear apart and compare the bits
and pieces with
> what we have today. One initial remark from myself - you never owned the
product, you
> always licensed it from us.
Licensing should be ok.
We may own the book (or the CD with the software on it), but we don't own
the intellectual property of the author of the book. Likewise for the
software.
We may use it under the terms of the license we buy, but not "write and sell
a new book based solely on the original"...
But we may resell the book.
The new owner may used it under the same license as we did (ie. have the
license transferred).
I think that most of this is within the new EULA too - I hope so.
Anders Ohlsson (Borland)
It is.
Erwien Saputra
> I just wanted to post this for you guys to tear apart and compare the bits and pieces with
> what we have today. One initial remark from myself - you never owned the product, you
> always licensed it from us.
Make sense. I do not own the intellectual property, just license.
> By saying "just like a book," Borland means, for example, that this
> software may be used by any number of people, and may be freely moved
> from one computer location to another, so long as there is no
> possibility of it being used at one location while it's being used at
> another or on a computer network by more than one user at one
> location. Just like a book can't be read by two different people in
> two different places at the same time, neither can the software be
> used by two different people in two different places at the same time.
> (Unless, of course, Borland's copyright has been violated or the use
> is on a computer network by up to the number of users authorized by
> additional Borland licenses as explained below.)
I my understanding is right, the Borland license the software to the
human, not to the machine. That's good. XP with activation make me
wonder, if I bought it, who really does license it? My notebook or me?
Wien.
Iman L Crawford
news:3C6BCCA3...@borland.com:
> - you never owned the product, you always licensed it from us.
That has yet to be decided. Adobe just lost a case in district court a
quote from the judge, I quoted this in another thread.
"The Court understands fully why licensing has many advantages for
software publishers. However, this preference does not alter the Court's
analysis that the substance of the transaction at issue here is a sale and
not a license," Judge Pregerson writes. If you put your money down and
walked away with a CD, you bought that copy, EULA or no EULA.
--
Iman
` For the president biz, vote for Liz' - Me
Ray Lischner
> I just wanted to post this for you guys to tear apart and compare the bits
> and pieces with what we have today. One initial remark from myself - you
> never owned the product, you always licensed it from us.
Thanks. The new licenses are more complicated, but in many cases, I
understand the need for the new complexity. My only remaining objection is
the prohibition against publishing benchmarks, but I've mentioned that in
another thread, so I don't need to repeat myself. (Read 5.(h) in the new
license.)
--
Ray Lischner, author of Delphi in a Nutshell
http://www.tempest-sw.com/
John Elrick
news:3C6BCCA3...@borland.com...
> I just wanted to post this for you guys to tear apart and compare the bits
and pieces with
> what we have today. One initial remark from myself - you never owned the
product, you
> always licensed it from us.
>
>
> No-Nonsense License Statement
This one is good. It's succinct, to the point and carries enough
explanation that the intent can be clearly understood.
I haven't taken a look at the actual wording of the new one, however, I
wanted to express the above as being why I find this agreement so well
written.
John
Alan Questell
> understand the need for the new complexity. My only remaining objection is
> the prohibition against publishing benchmarks, but I've mentioned that in
> another thread, so I don't need to repeat myself. (Read 5.(h) in the new
> license.)
If you want to publish a benchmark, go ahead and do it. That would never
stand up in court any more than a copyright notice in a book saying that the
book could not be reviewed. Benchmarks (and reviews) fall under fair use in
the copyright laws.
Just because a company includes something in a license doesn't mean it's
legal.
If that is in the license, then Borland should (and probably does) know
better.
Stephane Grobety
> human, not to the machine.
Not quite. You are treating the license like a physical item: there is only
one available and, while you can easily lend it to solmeone, you can't use
it while it's away.
> That's good. XP with activation make me
> wonder, if I bought it, who really does license it? My notebook or me?
Well, it depends on how you got it. If the license was sold with your
machine, then it's lincesed to that machine and that machine only (you've
actually got a discout on the OS for "agreeing" on a tighter licensing). If
you buy it boxed, then it's licensed to you and you can move it from one
machine to the other, as long as you have only one copy installed at the
same time. There is an extra agreement for Office XP in which you can
install it on a laptop AND on a desktop as long as you're the sole user of
both system (well, there is a more complex agreement, but that's the idea).
In all cases, you'll need some help from MS to actiate an OS on a different
machine than the one you used. It's not complex, but it's still really
annoying.
Good luck,
$Stephane
John Elrick
and pieces with
> what we have today. One initial remark from myself - you never owned the
product, you
> always licensed it from us.
>
>
> No-Nonsense License Statement
Ok. I'll start here (and I'm really getting tired of teaching law to
lawyers). Again, are these guys being paid by the word?
John
==========
1. OWNERSHIP. The Product is proprietary to Borland. The Product is
licensed, not sold, to you
notwithstanding any reference herein to "purchases." You acknowledge and
agree that: (a) the Product is
protected under U.S. copyright and other laws; (b) Borland and its licensors
retain all copyrights and other
intellectual property rights in the Product; (c) there are no implied
licenses under this License, and any
rights not expressly granted to you hereunder are reserved by Borland; (d)
you acquire no ownership or
other interest (other than your license rights) in or to the Product; and
(e) Borland owns all copies of the
Product, however made. You agree that you will not, at any time, contest
anywhere in the world Borland's
ownership of the Product, nor will you challenge the validity of Borland's
rights in the Product. You have
no rights hereunder to use any trademark or service mark belonging to
Borland.
-----------------------------------------
"The Product is proprietary to Borland." is redundant under Copyright law.
It is already covered in (a). The same may or may not go for (b), (c),
(d) - if Copyright law is changed, you have to abide by it because you said
you would in (a).
(a) "and other laws". Sorry Charlie. Not specific enough. Is the product
protected under a "Rent Control Act"? "under U.S. copyright and all other
applicable laws" thank you.
(e) makes no sense - ownership of the product carries certain legal rights
which would have to be spelled out with limitations or it would be
unenforcable. Under copyright law, Borland already controls the right of
replication and by extention would own any copies made. This sentence just
confuses the issue - are you surrendering all other rights of ownership?
Sentence two is a time waster. Since this is a "license" not a "purchase",
any inclusion of the word "purchase" within the document can be construed as
intentional deception. Use the Search and Replace feature of your word
processor instead of adding extra words that will have to be considered by a
Judge.
The second to last sentence, "You agree that you will not, ..." is
pointless. Anyone can sue over anything, you have already established your
claim to the rights in (a) and this will stand up in court. However, merely
including this sentence will not prove sufficient to prevent a lawsuit (not
that anyone with a brain would try) nor would it give you ground for a
counter suit unless UCC provided for it - you don't even provide remedy in
the sentence. It just wastes letters.
----------------------------------------
Essentially this paragraph can be reduced to "This product is copyrighted by
Borland International under US Copyright Laws. All rights reserved." and it
will pretty much say the same thing - only more clearly.
Anders Ohlsson (Borland)
> understand the need for the new complexity. My only remaining objection is
> the prohibition against publishing benchmarks, but I've mentioned that in
> another thread, so I don't need to repeat myself. (Read 5.(h) in the new
> license.)
We're working on that.
John Elrick
news:3c6be21e$1_1@dnews...
Should, yes. And probably does...read my posting dissecting the paragraph
on ownership the way a law professor would have on a midterm.
John
Bruce
Delphi on my desktop and my laptop and not have to worry about two licenses.
Bruce
"Anders Ohlsson (Borland)" <aohl...@borland.com> wrote in message
news:3C6BCCA3...@borland.com...
David Erbas-White
1) No limit to number of backup copies listed
2) No restriction on reselling
3) No restriction on benchmarking
4) No requirement that I post my copyright
David Erbas-White
William Meyer
news:3c6bde77_1@dnews...
> >
> > No-Nonsense License Statement
>
> This one is good. It's succinct, to the point and carries enough
> explanation that the intent can be clearly understood.
And it's expressed in plain language. There is actually less room for doubt
about the intent than in the new one, IMHO.
> I haven't taken a look at the actual wording of the new one, however, I
> wanted to express the above as being why I find this agreement so well
> written.
It also does not attempt to constrain the user in a number of ways which the
new one invokes. The old license specifically allows the software to be used
"by any number of people" (one at a time), while the new one insists it may
be used by only the one person to whom it is licensed. The old license makes
no effort to dictate what may constitute adequate backup, while the new one
specifically permits only one physical CD copy for backup.
In short, the new one is not progress.
Bill
Leonel
"Anders Ohlsson (Borland)" <aohl...@borland.com> wrote:
> You may transfer all of your
> rights to use the software to another person, provided that you
> transfer to that person (or destroy) all of the software, diskettes
> and documentation provided in this package, together with all copies,
> tangible or intangible, including copies in RAM or installed on a
> disk, as well as all back-up copies.
This seems to be in direct contrast to the new EULA, which states:
<QUOTE>
2.1 Grant of License. Subject to the terms and conditions of this Licence,
Borland grants to you, if you are an individual, or, if you are an entity, one
(1) designated person in your organization ("Named User") a personal,
nonexclusive, *nontransferable*, and limited license to use the Product (...)
</QUOTE>
Emphasis on nontransferable added by me, of course. I would also like to know
what "nonexclusive" means in this context.
Leonel
William Meyer
news:Xns91B563015...@207.105.83.65...
>
> That has yet to be decided. Adobe just lost a case in district court a
> quote from the judge, I quoted this in another thread.
>
> "The Court understands fully why licensing has many advantages for
> software publishers. However, this preference does not alter the Court's
> analysis that the substance of the transaction at issue here is a sale and
> not a license," Judge Pregerson writes. If you put your money down and
> walked away with a CD, you bought that copy, EULA or no EULA.
And finally, some common sense from the judge! If this continues, it may
lead to the overhaul of software publishing practices which I am
increasingly convinced is essential.
Bill
William Meyer
news:MPG.16d5e2a6d...@newsgroups.borland.com...
>
> I understood all of that, without having to pay a lawyer <g>
A feature which is *not* embodied in the current EULA.
Bill
William Meyer
news:3C6BE3C0...@arachneering.com...
> A couple of quick points:
>
> 1) No limit to number of backup copies listed
> 2) No restriction on reselling
> 3) No restriction on benchmarking
> 4) No requirement that I post my copyright
5) No limit on who or how many may use the software *one at a time*
6) Clear language, easily comprehensible w/o a lawyer
Bill
John Kaster (Borland)
> And finally, some common sense from the judge! If this continues, it may
> lead to the overhaul of software publishing practices which I am
> increasingly convinced is essential.
Yes -- and then that will lead to many software publishers needing to
determine if their business model is sustainable. I would guess that many will
determine it's not, and soon you'll be able to choose from a wide range of
freeware or open source products -- and very few commercial. Draw your own
conclusions on whether that will improve the availability of high quality
software or not.
--
John Kaster, Borland Developer Relations, http://community.borland.com
$1280/$50K: Thanks to my donors!
http://homepages.borland.com/jkaster/tnt/thanks.html
Buy Kylix! http://www.borland.com/kylix * Got source?
http://codecentral.borland.com
The #1 Java IDE: http://www.borland.com/jbuilder
John Elrick
news:3C6BE8D9...@borland.com...
> William Meyer wrote:
> > And finally, some common sense from the judge! If this continues, it may
> > lead to the overhaul of software publishing practices which I am
> > increasingly convinced is essential.
>
> Yes -- and then that will lead to many software publishers needing to
> determine if their business model is sustainable. I would guess that many
will
> determine it's not, and soon you'll be able to choose from a wide range of
Although Borland is one of the least offenders, the current EULA situation
is helping force the issue into the hands of the courts.
One of the reasons I was so harsh in my dissection of that paragraph was
that I foresee the courts doing the same thing in the future. IOW, the more
overly verbose and confusing the language, the more likely the judge may be
to find for the defendant.
John Elrick
Iman L Crawford
> determine if their business model is sustainable. I would guess that
> many will determine it's not, and soon you'll be able to choose from a
> wide range of freeware or open source products -- and very few
> commercial. Draw your own conclusions on whether that will improve the
> availability of high quality software or not.
Doubtful. EUAL's do not make the software world go round. Marketing and
frequent upgrades do. :) All software is still protected by copyright
law, not a EULA.
Jimmy [Used-Disks]
> William Meyer wrote:
>> And finally, some common sense from the judge! If this continues, it
>> may lead to the overhaul of software publishing practices which I am
>> increasingly convinced is essential.
>
> Yes -- and then that will lead to many software publishers needing to
> determine if their business model is sustainable. I would guess that
> many will determine it's not,
Makes you wonder how book publishing companies do it eh?
--
- Jimmy
IntraWeb: RAD Delphi Web Development:
http://www.atozedsoftware.com/intraweb.html
Integrates with WebBroker & WebSnap!
:
John Elrick
Somebody thinking that they had to add the word to demonstrate that only one
person in the world is being granted the license.
I'm reminded of a corporate charter a friend of mine paid a lawyer to write
years ago. It had four pages of description of business activities (no
fooling) that ended with:
"...and any other business activities legal under the laws of the United
States of America and the State of Maryland."
Not only did he have to pay for the four pages from the attorney, he also
had to pay extra while filing. My corporate charter is one page long (wrote
it myself from a government supplied template) and simply states that final
sentence as the legal business the corporation may engage in.
BTW
> 2.1 Grant of License. Subject to the terms and conditions of this Licence,
> Borland grants to you, if you are an individual, or, if you are an entity,
one
> (1) designated person in your organization ("Named User") a personal,
> nonexclusive, *nontransferable*, and limited license to use the Product
(...)
2.1 Grant of Licence. Borland grants a limited license to use the
Product...
just as enforcable. A lot less confusing. The limitations should be stated
in one section, not strewn through the document.
Is a _lawyer_ actually writing this stuff?
John Elrick
Jimmy [Used-Disks]
> A couple of quick points:
>
> 1) No limit to number of backup copies listed
That's good... I like to make multpile backups.
> 2) No restriction on reselling
Also good... I make $0.25 per book at a garage sale. :)
> 3) No restriction on benchmarking
Still good... it's nice to be able to make informed descisions.
John Elrick
news:Xns91B57CF19CEDBji...@207.105.83.65...
> "John Kaster (Borland)" <jka...@borland.com> wrote in
> news:3C6BE8D9...@borland.com:
>
> > William Meyer wrote:
> >> And finally, some common sense from the judge! If this continues, it
> >> may lead to the overhaul of software publishing practices which I am
> >> increasingly convinced is essential.
> >
> > Yes -- and then that will lead to many software publishers needing to
> > determine if their business model is sustainable. I would guess that
> > many will determine it's not,
>
> Makes you wonder how book publishing companies do it eh?
The same way software publishers can - enforcement of existing laws. It's
just more difficult for software publishers. This EULA stuff isn't making
it any easier though. It's not as though the (major) offenders are looking
for loopholes in copyright law<g>
John
Jack
> 2.1 Grant of License. Subject to the terms and conditions of this Licence,
> Borland grants to you, if you are an individual, or, if you are an entity,
one
> (1) designated person in your organization ("Named User") a personal,
> nonexclusive, *nontransferable*, and limited license to use the Product
(...)
> </QUOTE>
>
> Emphasis on nontransferable added by me, of course. I would also like to
know
> what "nonexclusive" means in this context.
>
> Leonel
>
Hi,
Good point Leonel.
If a company buy a Delphi Enerprise box and designate it to one
of the programmers, and next that programmer leave the company
or is assigned to other job inside the company, it is not possible to
transfer licence to other company's programmer because it is
"personal" and "nontransferable".
Looks like real genious wrote that paragraph - congratulations ! <g>
--
J.
Iman L Crawford
news:3c6bf6ac$1_1@dnews:
> Therein lies the problem. Unless the court determines a much harsher
> punishment or a better means of establishing fair compensation, it is
> only in a position to put software companies out of business, not
> pirates.
It's already illegal to copy and distribute, the EULA has nothing to do
with that. The purpose of EULA's is to circumvent copyright laws and the
laws that state your product must do what you advertise it to.
Thomas J. Theobald (Borland)
leasing time from owners of presses, to produce their media.
My grandmother can burn a copy of a CD.
Therein lies the problem. Unless the court determines a much harsher
punishment or a better means of establishing fair compensation, it is only
in a position to put software companies out of business, not pirates.
T
Ray Lischner
> Yes -- and then that will lead to many software publishers needing to
> determine if their business model is sustainable. I would guess that many
> will determine it's not...
FUD.
Let's assume, for the sake of argument, that software is sold, not
licensed. That brings a host of consumer protection laws to bear, at least
for products sold to consumers. The same laws to not hold for products sold
to businesses, which I believe is the bulk of Borland's business. To
further the argument, though, let's assume that those same laws pertain to
most of Borland's sales and the sales of other software vendors'.
The biggest impact will be that software vendors would not be able to
disclaim any warranties, especially of merchantability. If the product
doesn't work as advertised, the customers will be allowed to return it.
Smart software companies (including Borland) already allow customers to
return software, at least soon after purchase. So it turns out the impact
isn't so big after all.
The doctrine of first sales would apply, that is, once a customer buys the
software product, that customer is free to lend it, rent it, resell it,
etc. Copyright law already prohibits the customer from making copies and
selling them, so the only major impact here seems to be that customers
would be allowed to do reasonable things that currently licenses seek to
prohibit.
Vendors would not be able to enforce gag rules (such as Borland's
prohibition against publishing benchmarks). Vendors would not be allowed to
restrict what kinds of products we build with the software, so we could
use, say, Delphi to write a competing IDE. We could not redistribute
Delphi's packages with our IDEs, though, because that would violate
existing copyright law. So, again, the only impact is that vendors could
not enforce unreasonable license terms. (One may argue that curtailing free
speech is "reasonable," but I think anyone who did so would be in the
minority.)
The most significant sales problem that software vendors face is the fact
that it is too easy to violate copyright law and make and distribute
illegal copies of software. The whole sales vs. licenses has little impact
on that problem. The real problem is enforcing existing copyright law,
which is difficult in the electronic realm.
UCITA, the BSA, and stupid licenses are feeble attempts to attack the
piracy issue by going after the low-hanging, easy fruit--the naive,
well-intentioned innocents--while leaving the major problems--the large
scale pirates--untouched.
Anders Ohlsson (Borland)
> of the programmers, and next that programmer leave the company
> or is assigned to other job inside the company, it is not possible to
> transfer licence to other company's programmer because it is
> "personal" and "nontransferable".
Again, see 13.5. It's clearly transferable.
Jimmy [Used-Disks]
news:3c6bf6ac$1_1@dnews:
> No, it's pretty simple. Book publishers spend millions on presses, or
> leasing time from owners of presses, to produce their media.
>
> My grandmother can burn a copy of a CD.
Ok, she can burn a CD but can she make a photocopy?
Jack
"Anders Ohlsson (Borland)" <aohl...@borland.com> wrote in message
news:3C6BF662...@borland.com...
> > If a company buy a Delphi Enerprise box and designate it to one
> > of the programmers, and next that programmer leave the company
> > or is assigned to other job inside the company, it is not possible to
> > transfer licence to other company's programmer because it is
> > "personal" and "nontransferable".
>
> Again, see 13.5. It's clearly transferable.
>
> --
> Anders Ohlsson - Borland Developer Relations -
http://community.borland.com/
Anders,
I am not native English speaker and I may not understand the below text
correctly :
------------------------------------------------------------------
13.5 Assignment. You may not transfer the Software media, assign this
License or assign any of your
rights or delegate any of your obligations under this License, by operation
of law or otherwise (including
by merger, sale of assets or consolidation), without Borland's prior written
consent. Any attempted
assignment in violation of this Section 13.5 will be void.
----------------------------------------------------------------------------
-----------------------
What I understand reading the above is that I can - as a company manager -
transfer the licence only
if I got written permission agreement from Borland, right ?
If yes, the next question I would like to ask is, what are the limitations
of such agreement ?
I mean when Borland can deny transfer of the licence from one company's
developer to the other ?
Next question.
How often I can transfer licence between my programmers, can I do it every
month, week, two months ?
Next question.
How long I have to wait for your written permission ?
Next question.
If Borland deny to transfer licence for some reason, can I expect my money I
spent on
Delphi be returned back to me ?
etc.
etc.
Regards,
J.
Ray Lischner
> If you want to publish a benchmark, go ahead and do it. That would never
> stand up in court any more than a copyright notice in a book saying that
> the book could not be reviewed. Benchmarks (and reviews) fall under fair
> use in the copyright laws.
I agree that the clause is unlikely to stand up in court, but I do not have
the legal and financial wherewithal to withstand a legal challenge. Every
writing contract I have ever signed explicitly says that in such cases, the
publisher hangs me out to dry. Historically, publishers have caved in when
vendors have threatened legal action on the basis of such clauses in other
EULAs. Sure, the publishers would have prevailed in the long run, but at
great cost to them financially and in terms of good will with their
advertisers.
Tim Sullivan
have
> the legal and financial wherewithal to withstand a legal challenge.
I suspect you could send a temp employee in rather than a lawyer. Every time
the prosecution said anything, have the temp jump up, shout "Objection!
Freedom of speech!" and sit back down. Total cost: $6 per hour. Total
savings: $240 per hour. :-) Hell, I'd pay half just to see the whole thing
go down, so count me in for $3 per hour!
Also, of note: http://www.wired.com/news/politics/0,1283,50299,00.html.
You wacky Americans and your crazy freedom of speech. :-)
--
Tim Sullivan
Unlimited Intelligence Limited
http://www.uil.net
William Meyer
news:3C6BE8D9...@borland.com...
>
> Yes -- and then that will lead to many software publishers needing to
> determine if their business model is sustainable. I would guess that many
will
> determine it's not, and soon you'll be able to choose from a wide range of
> freeware or open source products -- and very few commercial. Draw your own
> conclusions on whether that will improve the availability of high quality
> software or not.
I agree with Ray Lischner on that: it's FUD. We've seen licenses disclaiming
functionality for years, yet we, your customers, are rarely, if ever in a
position to do the same with *our* customers, and we survive. The reality is
that if I ship software that doesn't work, I go out of business, regardless
of any license jargon.
I don't much like open source, other than for hobby use. When there's a
problem, I need answers, and I can't be responsible for all levels of my
systems at the source level. Therefore, I prefer to buy commercial tools,
and to pay for the right to call for help. But I do resent being squeezed
(between a vendor who declines any and all responsibility and a customer who
naturally insists I support *my* product), and I am quite determined to do
whatever I can to influence vendors, legislators, and others, that the
current sales model is unacceptable.
Bill
Robert Cerny
You sound like "It will be exactly my way or I shoot myself, so if you want
me alive, don't criticize me".
--
Robert
John Kaster (Borland) wrote in message <3C6BE8D9...@borland.com>...
Sue D. Nom
As Solon once said, "Laws are like spiders' webs, which, if anything small
falls into them they ensnare it, but larger things break through and escape."
William Meyer
>
> Somebody thinking that they had to add the word to demonstrate that only
one
> person in the world is being granted the license.
More to the point, someone paid for spewing words.
My concern with the wording of the section in question is that it suggest to
me that if I designate George, and later he takes employment elsewhere, I
must petition Borland for the right to reassign the "non-transferable"
license to James, who I hire to replace George. Surely Borland doesn't
*really* want to be inundated with paperwork?
> Not only did he have to pay for the four pages from the attorney, he also
> had to pay extra while filing. My corporate charter is one page long
(wrote
> it myself from a government supplied template) and simply states that
final
> sentence as the legal business the corporation may engage in.
Somewhere I heard recently that there are currently more students in law
schools than the sum of all lawyers who have practiced to date. Possibly the
most depressing stat I can imagine.
> 2.1 Grant of Licence. Borland grants a limited license to use the
> Product...
>
> just as enforcable. A lot less confusing. The limitations should be
stated
> in one section, not strewn through the document.
>
> Is a _lawyer_ actually writing this stuff?
Clearly not a very bright one.
Bill
John Kaster (Borland)
> Although Borland is one of the least offenders, the current EULA situation
> is helping force the issue into the hands of the courts.
Understood.
> One of the reasons I was so harsh in my dissection of that paragraph was
> that I foresee the courts doing the same thing in the future. IOW, the more
> overly verbose and confusing the language, the more likely the judge may be
> to find for the defendant.
I totally agree. Then again, I speak very plainly on these newsgroups and am
very frequently misunderstood.
John Kaster (Borland)
> FUD.
Ray, it is not FUD. It is a logical extrapolation. If you choose to disagree
with my analysis, that's fine. However, I would appreciate it if you wouldn't
call it FUD. Or should I start calling everything you post negative about
Borland's actions FUD as well?
> Vendors would not be able to enforce gag rules (such as Borland's
> prohibition against publishing benchmarks).
You seem to be getting hung up on this one point. I would not be surprised to
see this removed from future licenses, since the product management people I
talked to preferred it not be there rather than be there.
> Vendors would not be allowed to
> restrict what kinds of products we build with the software, so we could
> use, say, Delphi to write a competing IDE.
I see you're out of date with the license. Did you read the new one? The
non-compete clause is gone.
William Meyer
> > of the programmers, and next that programmer leave the company
> > or is assigned to other job inside the company, it is not possible to
> > transfer licence to other company's programmer because it is
> > "personal" and "nontransferable".
>
> Again, see 13.5. It's clearly transferable.
"...with Borland's prior written consent." The easiest way to force this
issue is for all Borland customers to inundate Borland with requests for
transfer of assignment each time such a change arises. As, for example, when
the lead programmer gets a new machine, and his old PC is transferred to
another developer in the same group, with projects and tools intact. <g>
Bill
John Kaster (Borland)
> Ok, she can burn a CD but can she make a photocopy?
The cost of that is probably very close to the cost of buying the book in the
first place. Not so with duplicating a CD.
John Elrick
> > of the programmers, and next that programmer leave the company
> > or is assigned to other job inside the company, it is not possible to
> > transfer licence to other company's programmer because it is
> > "personal" and "nontransferable".
>
> Again, see 13.5. It's clearly transferable.
Sorry. 13.5 states that it is NOT transferable.
It then goes on to say that only Borland may wave this and it must be in
writing. In essence, a new license is being issued by Borland (via the
written authorization) but the original is never transferred.
This transfer also cannot take place (letter of the agreement) until the
authorization is received, in writing from Borland - nice to hire a new
programmer and have them sitting around twiddling their thumbs until the
postal service delivers a certain letter<g>
John Elrick
John Kaster (Borland)
> I agree with Ray Lischner on that: it's FUD.
I'll have to start calling everything I disagree with in these newsgroups FUD,
it appears.
> functionality for years, yet we, your customers, are rarely, if ever in a
> position to do the same with *our* customers, and we survive.
Do you provide general-purpose tools to a wide audience?
> The reality is
> that if I ship software that doesn't work, I go out of business, regardless
> of any license jargon.
Exactly. So how is the situation different for Borland?
> and to pay for the right to call for help. But I do resent being squeezed
> (between a vendor who declines any and all responsibility and a customer who
> naturally insists I support *my* product),
We support all of our products. You know we do. The license doesn't have any
impact on our support for our products.
I believe that the license is written the way it is to prevent the thousands
of frivolous lawsuits that would otherwise be filed. You can still sue -- but
it will cost more, and that in itself keeps the frivolous lawsuits down. You
and Ray seem to be thinking you live in a country other than the lawsuit-crazy
USA.
In most cases, the terms in license agreements come into existence for a
reason called painful experience.
Jimmy [Used-Disks]
> "Jimmy [Used-Disks]" wrote:
>> Ok, she can burn a CD but can she make a photocopy?
>
> The cost of that is probably very close to the cost of buying the book
> in the first place. Not so with duplicating a CD.
Ok... can she work a scanner then?
John Elrick
news:3C6C04C6...@borland.com...
> John Elrick wrote:
>
> > Although Borland is one of the least offenders, the current EULA
situation
> > is helping force the issue into the hands of the courts.
>
> Understood.
>
> > One of the reasons I was so harsh in my dissection of that paragraph was
> > that I foresee the courts doing the same thing in the future. IOW, the
more
> > overly verbose and confusing the language, the more likely the judge may
be
> > to find for the defendant.
>
> I totally agree. Then again, I speak very plainly on these newsgroups and
am
> very frequently misunderstood.
To clarify one point, the "paragraph" I refer to was a selected paragraph
from the current EULA that I dissected and posted elsewhere.
Sorry for any unintentional confusion.
John
John Elrick
news:3C6C0502...@borland.com...
> "Jimmy [Used-Disks]" wrote:
> > Ok, she can burn a CD but can she make a photocopy?
>
> The cost of that is probably very close to the cost of buying the book in
the
> first place. Not so with duplicating a CD.
Not true anymore - I can print 1000 pages for under $10.00, the same book
could cost $90. The real legal argument is "degradation of media", the fact
that a photocopy of a book is not the same as the original.
It is very true that no degradation occurs with a CD.
John
Ray Porter
EULA.
As for licensing rather than purchasing, that's always been SOP in the
software industry, all the way up to mainframe operating systems. The new
EULA adds new restrictions that I've never seen in any other software
license. As long as you are purchasing a complete new license (not an
upgrade, you've always been required to keep your original copy when
upgrading), you've always been able to sell your old copy to someone else.
Similarly, if you decide you no longer needed the software, you could
uninstall it and resell your copy to some young, aspiring programmer who
might one day become a new Borland customer by buying the current version.
Ray Porter
"Anders Ohlsson (Borland)" <aohl...@borland.com> wrote in message
news:3C6BD515...@borland.com...
> > I think that most of this is within the new EULA too - I hope so.
>
> It is.
>
> --
> Anders Ohlsson - Borland Developer Relations -
http://community.borland.com/
Erwien Saputra
You saved maybe couple of bucks but you loose your time.....
Duplicating CD, would cost a blank CD and only about 30 minutes, no need
to wait.
Wien.
Jimmy [Used-Disks]
news:3C6C12E1...@nospam.codeline.dot.net:
> A book with 250 pages, scan it and print it. How long will it take?
> You saved maybe couple of bucks but you loose your time.....
Yeah... if you're only makeing *one* copy. But once you've done it, you can
make as many as you please.
Ray Lischner
> Ray, it is not FUD. It is a logical extrapolation. If you choose to
> disagree with my analysis, that's fine. However, I would appreciate it if
> you wouldn't call it FUD. Or should I start calling everything you post
> negative about Borland's actions FUD as well?
If you think I am spreading fear, uncertainty, and doubt, by all means say
so. Brevity is the soul of wit, so feel free to use the acronym.
William Meyer
>
> I'll have to start calling everything I disagree with in these newsgroups
FUD,
> it appears.
I don't think so, any more than I call all that I disagree with FUD. Your
proposition seemed extreme, and a bit melodramatic. In it lies the veiled
threat that a change in the business model may bring about the collapse of
vendors. That sort of statement clearly does spread fear, uncertainty, and
doubt, unless, of course, we all reject your premise out of hand.
> > functionality for years, yet we, your customers, are rarely, if ever in
a
> > position to do the same with *our* customers, and we survive.
>
> Do you provide general-purpose tools to a wide audience?
No, and I don't view any software development tool as "general-purpose", at
least not in the way the a word processor or spread sheet is. And as Sprint
and Quattro are no longer in the lineup, the perspective needs adjustment.
> > The reality is
> > that if I ship software that doesn't work, I go out of business,
regardless
> > of any license jargon.
>
> Exactly. So how is the situation different for Borland?
The difference is that we don't ship 8 pages of disclaimer with our
products. We declare them to be fit for use in the intended range of
applications, and we respond to bug reports with fixes, generally within 1-7
days, depending on the complexity of the issues involved.
> > and to pay for the right to call for help. But I do resent being
squeezed
> > (between a vendor who declines any and all responsibility and a customer
who
> > naturally insists I support *my* product),
>
> We support all of our products. You know we do. The license doesn't have
any
> impact on our support for our products.
Nor did I claim differently. My point was that I want you to survive and
prosper, and much prefer to use Borland tools rather than open source
gadgets. But the license terms are not acceptable to me, and I will push and
push, in favor of a return to the sanity of the "No-Nonsense" style of
license.
> I believe that the license is written the way it is to prevent the
thousands
> of frivolous lawsuits that would otherwise be filed. You can still sue --
but
> it will cost more, and that in itself keeps the frivolous lawsuits down.
You
> and Ray seem to be thinking you live in a country other than the
lawsuit-crazy
> USA.
I see the perpetuation of such licensing terms as part of the problem, not a
partial solution. I know full well where I live, and I detest the parasitic
behavior of those who seek to sue for frivolous reasons, whether because the
failed to adequately debug and test their apps, or because they were so
stupid as to place a paper cup of hot coffee between their thighs wile
driving, The problem is an excess of lawyering, on all sides -- and the old
and new EULA's are both artifacts of the problem, and neither does anything
to improve things.
> In most cases, the terms in license agreements come into existence for a
> reason called painful experience.
But they are relatively mindless cut and paste restatements, and show little
or no evidence of fresh thinking on the part of those who command the very
high hourly rates for creating them. The new EULA, strictly interpreted,
requires me to apply in advance for permission to replace one developer with
another. Putting it simply, that's not Borland's business. Please educate
your lawyers before letting them write this nonsense.
Bill
Iman L Crawford
> to wait.
So, it's not illegal to copy a CD you own, it's illegal to distribute
copies. In the same way it's not illegal to photocopy a book you own,
but it is illegal to distribute photocopies of books.
IMO, as long as I'm following copyright law, it's none of Borlands
business what I do with the software.
--
Iman
` For the president biz, vote for Liz' - Me
William Meyer
>
> This transfer also cannot take place (letter of the agreement) until the
> authorization is received, in writing from Borland - nice to hire a new
> programmer and have them sitting around twiddling their thumbs until the
> postal service delivers a certain letter<g>
Many years ago, I saw an interview with a gentleman whose name escapes me
now, but who described how you can harass a bank. In his example, you
arrange for a significant number of people to make deposits in a bank which
is offering some gift for opening the account. Then a few days later, they
close their accounts, and after that, repeat the cycle. Before long, the
bank is overloaded with handling the new account premiums, and losing money
in the process.
I'm sure that no one is silly enough to offer premiums for account openings
any more without limiting the offer to prevent such things, but in the
current case, imagine a deluge of requests to Borland requesting
reassignment of license from developer A to developer B....
Bill
Iman L Crawford
> newsgroups FUD, it appears.
What was posted was the idea the entire software industry would collapse
if EULA's were not enforceable. I consider that employing fear,
uncertainty and doubt in an argument.
Ray Lischner
> Ray, it is not FUD. It is a logical extrapolation.
Let's examine the logic of the extrapolation. The point in contention
revolves around the issue of sales vs. licenses. To quote the original
messages:
Anders Ohlsson wrote:
> - you never owned the product, you always licensed it from us.
to which Image Crawford replied:
>That has yet to be decided. Adobe just lost a case in district court...
[Judge Pregerson writes it's a sale, not a license]
William Meyer concurred, and then you wrote,
>...many software publishers needing to determine if their business model
>is sustainable. I would guess that many will determine it's not
Which I consider to fear mongering, but you claim is logical extrapolation.
In what situation would a software vendor, such as Borland, choose to go
out of business rather than continue to sell software? In theory, that
would happen if Borland could no longer earn enough money by selling
software to stay in business. That could come about in a few different ways:
1. Competition beats Borland by undercutting prices or by producing better
products, or both.
2. Piracy eats into sales.
Point #2 seems to be the issue here, so let's ignore #1 for now. (Besides,
we know that Borland still makes the best development tools around, and
will continue to do so in the foreseeable future.)
How does the issue of sales vs. licenses affect point #2? If Borland is
forced to abandom EULAs and sell its software, will that increase its
piracy problems to the point where it will decide it can no longer do
business?
My previous message considered some of the differences between sales and
licenses, and I do not see how any of them affect Borland's bottom line,
let alone affect them to the point where Borland would be driven out of
business.
I realize that you did not write that Borland specifically would go out of
business, but I chose Borland for the sake of argument because it is the
one company that we all share in common in this forum.
To summarize, I do not see any cogent argument why a company such as
Borland would go out of business as a result of software sales being
considered product sales rather than licenses.
To argue that such a change would result in the disappearance of a
multi-billion dollar industry is mere fear-mongering.
Ray Lischner
> Ok, she can burn a CD but can she make a photocopy?
Anyone can make an exact duplicate of a CD-ROM, one that is
indistinguishable from the original. It is also very cheap to do so.
Copying a book in a way that makes the copy identical to the original is
possible, but difficult and expensive.
Everyone who sells bits (or licenses to use bits) is concerned by the ease
with which bits can be copied, whether those bits represent software,
music, movies, or electronic books. It's a serious problem, and no one (to
my knowledge) has found workable solutions, but not through lack of trying.
John Elrick
> William Meyer wrote:
SNIP
> I believe that the license is written the way it is to prevent the
thousands
> of frivolous lawsuits that would otherwise be filed. You can still sue --
but
> it will cost more, and that in itself keeps the frivolous lawsuits down.
You
> and Ray seem to be thinking you live in a country other than the
lawsuit-crazy
> USA.
Actually, it may have the opposite effect. Contracts that have
contradictory or confusion sections are fodder for ambulance chasers.
> In most cases, the terms in license agreements come into existence for a
> reason called painful experience.
They also come into existence because of too much cut and paste - the same
way code can bloat and become pure spaghetti.
John
Robert Cerny
>
>This seems to be in direct contrast to the new EULA, which states:
>
><QUOTE>
>2.1 Grant of License. Subject to the terms and conditions of this Licence,
>Borland grants to you, if you are an individual, or, if you are an entity,
one
>(1) designated person in your organization ("Named User") a personal,
>nonexclusive, *nontransferable*, and limited license to use the Product
(...)
></QUOTE>
>
>Emphasis on nontransferable added by me, of course. I would also like to
know
>what "nonexclusive" means in this context.
>
"personal, nonexclusive" can mean like the old "like a book" or
nontransferable, depending on which side is the lawyer.
--
Robert
John Kaster (Borland)
> What was posted was the idea the entire software industry would collapse
> if EULA's were not enforceable.
That's not what I posted, either. Please reread what I posted.
John Kaster (Borland)
> Not true anymore - I can print 1000 pages for under $10.00,
And bind it?
John Kaster (Borland)
> Actually, it may have the opposite effect. Contracts that have
> contradictory or confusion sections are fodder for ambulance chasers.
How many of Borland's customers are also lawyers and/or ambulance chasers?
> They also come into existence because of too much cut and paste - the same
> way code can bloat and become pure spaghetti.
I never said they didn't.
I used to have an agreement for my products along the lines of "You will use
this in an honest and honorable way" and never ran into an issue with it. Then
again, I dealt with all of my customers directly if there was an issue (no
overhead) and was thus able to either address their concerns or refund their
money. I had 5 refunds that I can remember in the years I was doing business.
However, the larger a company gets, the more it becomes a target for
"ambulance chasers" as you put it. All it would have taken is one of the
several people I've encountered since coming to Borland to put me out of
business with their frivolous lawsuits.
John Kaster (Borland)
> Except you can't resell your copy -- that is explicitly forbidden by the new
> EULA.
Not so. See 13.5.
BTW, yes, I knew this misunderstanding would be coming up at least 100 times
on these newsgroups given the way the license is currently written.
William Meyer
>
> How many of Borland's customers are also lawyers and/or ambulance chasers?
If the percentage is small, why bother with the legal boiler-plate? Or are
you suggestig that the percentage is *not* small?
Bill
John Wester [Group W]
>
> How many of Borland's customers are also lawyers and/or ambulance chasers?
>
Only one that I know of... <grin>
--
John
Life is complex. It has real and imaginary components
Iman L Crawford
> That's not what I posted, either. Please reread what I posted.
I was referring to Thomas J. Theobald's post:
"herein lies the problem. Unless the court determines a much harsher
punishment or a better means of establishing fair compensation, it is only
in a position to put software companies out of business, not pirates."
Erwien Saputra
> So, it's not illegal to copy a CD you own, it's illegal to distribute
> copies. In the same way it's not illegal to photocopy a book you own,
> but it is illegal to distribute photocopies of books.
True, I think we are allowed to make one copy for backup purpose ONLY.
Creating one backup has been from the first time I used DOS 3.1 and
WordStar 5.
Wien.
Iman L Crawford
> True, I think we are allowed to make one copy for backup purpose ONLY.
> Creating one backup has been from the first time I used DOS 3.1 and
> WordStar 5.
Creating backups and copies in the use of software are both allowed by
copyright law (in the U.S.).
William Meyer
news:MPG.16d5d5433...@forums.borland.com...
>
> Only one that I know of... <grin>
And I remember too well the noise level from *that* source.... :(
Bill
Ray Porter
only with the express, written permission of Borland. But that still
constitutes a considerable change from any other license I'm familiar with,
even from the oft maligned Microsoft (I haven't seen the new XP license yet
so keep that in mind). To use the often sited analogy of a book, I can
resell any book I own. I just can't make a copy of that book and sell that
copy.
My previous objections were only to the more restrictive (and unreasonable)
restrictions on the academic version. The new license places some fairly
unreasonable restraints on everyone and goes far beyond Borland's right to
protect its intellectual property. As others have pointed out, existing
copyright law should sufficiently protect Borland's interest without
implementing a license that is going to, by the extremity of its terms, turn
many of Borland's customers into violators when there is no harm to
Borland's interests.
Ray Porter
"John Kaster (Borland)" <jka...@borland.com> wrote in message
news:3C6C2082...@borland.com...
Thomas J. Theobald (Borland)
this idea that software should be treated "like a book." My intent was to
point out that the quote:
> "The Court understands fully why licensing has many advantages for
> software publishers. However, this preference does not alter the Court's
> analysis that the substance of the transaction at issue here is a sale and
> not a license," Judge Pregerson writes. If you put your money down and
> walked away with a CD, you bought that copy, EULA or no EULA.
...indicates a lack of regard for the interest of the creator of the
software. Yes, you walk away with a CD. However, what is done with that CD
is not - and should not be - completely up to the buyer.
Given the quote above, one could read a hypothetical (and unrelated) case
into it: I buy some copy of software. Okay, fine. I make five hundred
copies. That might take me a couple of days. I give them to my friends, or
I sell them to people. I bought the copy, I bought the blank CDs. They're
mine to do with as I please. The license agreement I might or might not
have entered is between me and the software company, if it exists at all.
Guess what? The software vendor is probably going to sue the crap out of me
for doing it. They might win. According to the idea expressed in the
quoted text above, I would have a pretty solid footing in my defense.
Sooner or later, someone will realize that this economy must have laws
restricting the copying of digital media and will introduce public
enforcement (a.k.a. criminal law) for violating the company's rights. At
present, software companies are attempting to fill the void of public
enforcement with EULAs, because there simply isn't an effective public
policy to protect them.
When those laws exist and are respected, EULAs will likely stop being long
and complex. Those laws that will be created will probably feel like they
impinge upon "personal liberty" - however, they will exist for public
safety - and safety doesn't necessarily imply only physical safety, but also
includes financial and property safety.
Why doesn't copyright law help much here? Copyright law focuses on the
punishment of the perpetrator, and was designed to handle *physical objects*
that are distributed. Those physical objects can be siezed and destroyed,
ending their damage to the copyright holder. Digital media can be
propogated for ever, and once released to the public, can continue to exist
in some form or another forever, throughout the globe, including in
jurisdictions where injunctions cannot touch them. This potentially negates
the commercial viability of a given product, once it has been jeopardized.
The book analogy only goes so far. The software industry is only two or
three decades old; books are several thousand years old, and spent several
centuries arriving at a point where one could even reproduce a book in any
means other than manually copying. This gave cultures a lot of time to
learn to respect the effort that went into them.
Software has not had the benefit of that time for society to adjust to its
presence, and hasn't found a perfect means to provide a perpetual license to
a single user. EULAs are the current "best effort."
If you have a problem with something in a EULA, suggest an alternative. At
least try to identify why the article is there with which you have a
problem. Don't just poop on it. Recognize that you and your software are
eventually going to have to face the same issue, and try to be part of the
solution.
T
Anders Ohlsson (Borland)
> EULA.
No - see 13.5.
Alan Questell
a review of the product or comparison of similar products, you are, in fact,
creating your own coprighted original work. If Borland, or anyone, else
could find a lawyer to file such a suit (which no self-respecting lawyer
would), it would never get to court. It would be such a ridiculous claim
that it would be thrown out immediately.
Now, you seem to be comparing something different when you mention a
"writing contract" that you have signed, so I'm not sure what you're talking
about.
I'm talking about someone saying: I obtained a copy of Delphi; I wrote some
programs that do some calcuations (or whatever); I compared them to the same
algorithms in C++ (or whatever) and here are the results I observed.
"Ray Lischner" <donts...@spam.you> wrote in message
news:fd6.3c6bf...@prospero.island.local...
> On Thursday 14 February 2002 09:13 am, Alan Questell wrote:
>
> > If you want to publish a benchmark, go ahead and do it. That would never
> > stand up in court any more than a copyright notice in a book saying that
> > the book could not be reviewed. Benchmarks (and reviews) fall under fair
> > use in the copyright laws.
>
> I agree that the clause is unlikely to stand up in court, but I do not
have
> the legal and financial wherewithal to withstand a legal challenge. Every
> writing contract I have ever signed explicitly says that in such cases,
the
> publisher hangs me out to dry. Historically, publishers have caved in when
> vendors have threatened legal action on the basis of such clauses in other
> EULAs. Sure, the publishers would have prevailed in the long run, but at
> great cost to them financially and in terms of good will with their
> advertisers.
Ray Lischner
> Sooner or later, someone will realize that this economy must have laws
> restricting the copying of digital media and will introduce public
> enforcement (a.k.a. criminal law) for violating the company's rights.
We have that now. Existing copyright law covers the situations you
presented and declares them to be illegal. Whether the first copy was a
sale or a license has no bearing on the case.
> ...Digital media can be
> propogated for ever, and once released to the public, can continue to
> exist in some form or another forever, throughout the globe, including in
> jurisdictions where injunctions cannot touch them. This potentially
> negates the commercial viability of a given product, once it has been
> jeopardized.
That's the crux of the problem, and I fail to see how distinguishing
between sales and licenses helps here. By using licenses instead of sales,
you punish only the innocent (who want to transfer the license from
employee A to employee B without having to get written permission from
Borland, for example) without any impact on the guilty.
If you could catch the guilty, existing copyright law spells out the
illegality of their actions.
The hard part is catching the guilty parties, who as you say, might not be
living in a country where you can enforce any license or US law. Which just
provides more evidence that the license vs. sales issue is not one that
affects those who make illegal copies.
> If you have a problem with something in a EULA, suggest an alternative.
Allow transfers without getting permission from Borland. You can stipulate
that the transferer must delete all copies, etc. We shouldn't have to ask
permission first.
Let us sell, rent, or lend the software, provided only one copy can be run
at a time. (That is, if I buy one copy, I can rent one copy at a time. The
renter must agree in writing to Borland's license agreement, but could
subrent the software if they really wanted to.)
Eliminate the gag rule that prohibits publishing benchmarks.
Let me reverse engineer the product if I want to create compatible
products, fix bugs, fill in missing parts of the documentation, and so on.
(I started my career as an author by reverse engineering parts of Delphi
and documenting what I discovered.)
That'll do for starters.
Ray Lischner
> Now, you seem to be comparing something different when you mention a
> "writing contract" that you have signed, so I'm not sure what you're
> talking about.
I'm talking about contracts with publishers of magazines and books. Suppose
I write an article that compares C++ Builder with Visual C++, and in the
article I compare the compilation speeds of the two compilers. When I
submit the article for publication, I must sign a contract with the
magazine publisher. For example, CMP, which publishes Dr. Dobb's Journal,
has the following clause in their standard contract:
"You represent and warrant that you are the sole author of the Article ...
that nothing in the Article, and no act or omission in the research or
preparation of the Article violated or will violate any law, or infringed
or will infringe the copyright or any other right of any person or entity,
including the right of publicity..."
In other words, by including a benchmark of C++ Builder, I violated the
"right of publicity," which means I violated the contract with CMP, and if
Borland were to sue CMP, CMP would point to the contract I signed and say,
"It's his fault, sue him!"
At that point, I would need to hire a lawyer (at my own expense) who would
then convince the judge to throw the case out of court. I would still be
out my legal fees. Any competent corporate lawyer would be able to stall
and prolong the judicial shenanigans to cost me more money that I possess.
You don't have to be right to win.
(I'm not arguing that Borland would do any of this. But it's possible, and
companies have done far worse to innocent individuals.)
William Meyer
news:3c6c439d$1_1@dnews...
>
> ...indicates a lack of regard for the interest of the creator of the
> software. Yes, you walk away with a CD. However, what is done with that
CD
> is not - and should not be - completely up to the buyer.
Whereas in the current situation, the EULA specifies a lack of regard for
the customer, who pays his hard-earned money for something on which the
publisher makes every effort to legally disclaim any and all responsibility
for that which they nonetheless consider valuable.
> Given the quote above, one could read a hypothetical (and unrelated) case
> into it: I buy some copy of software. Okay, fine. I make five hundred
> copies. That might take me a couple of days. I give them to my friends,
or
> I sell them to people. I bought the copy, I bought the blank CDs.
They're
> mine to do with as I please. The license agreement I might or might not
> have entered is between me and the software company, if it exists at all.
A clear violation of letter and spirit of copyright, EULA notwithstanding.
> When those laws exist and are respected, EULAs will likely stop being long
> and complex. Those laws that will be created will probably feel like they
> impinge upon "personal liberty" - however, they will exist for public
> safety - and safety doesn't necessarily imply only physical safety, but
also
> includes financial and property safety.
Copyright laws exist and are respected and enforced (and were before the
first EULA was concocted by some over-zealous lawyer), yet the EULA madness
continues. Has the EULA done any more for Borland than did the "No-Nonsense"
license?
> The book analogy only goes so far. The software industry is only two or
> three decades old; books are several thousand years old, and spent several
> centuries arriving at a point where one could even reproduce a book in any
> means other than manually copying. This gave cultures a lot of time to
> learn to respect the effort that went into them.
I don't think it's a matter of respect. If it were, the EULA is an excellent
way to *lose* the respect of customers. Bear in mind that to a scofflaw, it
matters not what the copyright law says, nor what the EULA says. As has been
pointed out again and again, the terms of the EULA irritate customers and
may put off potential customers, but do little if anything to curb the
losses due to piracy (whatever those may actually amount to -- and as I've
said repeatedly, the rationales published by the BSA are highly suspect.)
> Software has not had the benefit of that time for society to adjust to its
> presence, and hasn't found a perfect means to provide a perpetual license
to
> a single user. EULAs are the current "best effort."
This society adapts and changes faster than ever before, having learned to
create homes for tens of millions of PC's, and I find your argument
unfounded. As to EULAs, they are an exploitation of a power relationship --
in a contract situation, there is give and take on the way to a signature.
Here, there is only take it or leave it, and the most strongly worded denial
of responsibility for any particular function of the product. Surely not an
equitable situation for the honest customer.
> If you have a problem with something in a EULA, suggest an alternative.
At
> least try to identify why the article is there with which you have a
> problem. Don't just poop on it. Recognize that you and your software are
> eventually going to have to face the same issue, and try to be part of the
> solution.
I have suggested, and will suggest again, a return to the "No-Nonsense"
approach. Although I do sincerely believe that the license model of software
sales (and I reject categorically that they are othjer than sales), you must
work within the existing structure of the laws, even as must your customers.
That being said, we have cited a number of specific elements of the revised
EULA (and the ways in which it departs from the old approach) which create
problems many of us find unacceptable.
As to my own software, I do not pursue the same sales model you use, and do
not face the same sort of problems. In my market, however, we have long
since recognized that there is no help to be found in copyright or patent,
and that the best defense is to continue to produce reliable and highly
effective solutions, with rapid bug-fixes, and frequent updates. Real
support to the customer, in a way that the customer recognizes and feels
when the need arises.
Bill
William Meyer
>
> Eliminate the gag rule that prohibits publishing benchmarks.
Better still, offer to assist in the production of the benchmarks, providing
the interested parties with access to a Borland engineer to critique (but
not twiddle) the tests. Offer this in exchange for the right to a sidebar
comment in the published results, in which you may raise exceptions to
methodology, or further explain whatever you may feel are problematic tests.
Bill
Alan Questell
plagiarized any of the material in your article. Obviously, with your
skills - yes, I have your book :-) - that's not going to be a problem. As I
said earlier, using a benchmark in a review would be fair use under
copyright laws, so you would be in compliance with that part of the
statement you signed that states you did not violate anyone's copyright. I
would have no problem with the situation as you describe it; of course, you
have to be comfortable with what you're doing.
"Ray Lischner" <donts...@spam.you> wrote in message
news:4d4a.3c6c...@prospero.island.local...
John Kaster (Borland)
> Eliminate the gag rule that prohibits publishing benchmarks.
How about "Eliminate the contentiousness of calling it a gag rule."
Have you asked if Borland would assist you with producing a benchmark? If we
would review it to make sure it's accurate? If we would object to you
publishing it?
The answer is no, because if you had, you would have been told "Yes, we'll
give you advice in making sure you product an accurate benchmark."
What benchmark did you have in mind?
> That'll do for starters.
Yes, it will.
John Kaster (Borland)
> And I remember too well the noise level from *that* source.... :(
Who could very, very easily have put me out of business with legal fees.
William Meyer
> William Meyer wrote:
> > And I remember too well the noise level from *that* source.... :(
>
> Who could very, very easily have put me out of business with legal fees.
And I suspect could still find much with which to stir the pot, in the new
EULA.
Bill
Alan Questell
sale of software should be like the sale of a book. If I want to re-sale the
book to someone else, I can do that without breaking any copyright laws. The
same should be true with bundled software, despite what the license may say.
He did not even indireclty imply that I had the right copy the software and
give it to others. I found his writing to be refreshingly common sensical.
"Iman L Crawford" <ilcrawford.at.hotmail.dot.com> wrote in message
news:Xns91B563015...@207.105.83.65...
> "Anders Ohlsson (Borland)" <aohl...@borland.com> wrote in
> news:3C6BCCA3...@borland.com:
> > bits and pieces with what we have today. One initial remark from myself
> > - you never owned the product, you always licensed it from us.
>
> That has yet to be decided. Adobe just lost a case in district court a
> quote from the judge, I quoted this in another thread.
>
> "The Court understands fully why licensing has many advantages for
> software publishers. However, this preference does not alter the Court's
> analysis that the substance of the transaction at issue here is a sale and
> not a license," Judge Pregerson writes. If you put your money down and
> walked away with a CD, you bought that copy, EULA or no EULA.
>
William Meyer
news:3c6c59de_1@dnews...
> I found his writing to be refreshingly common sensical.
That alone sugggests he is ripe to be overturned :(
Bill
John Kaster (Borland)
> If the percentage is small, why bother with the legal boiler-plate? Or are
> you suggestig that the percentage is *not* small?
The larger the house, the harder it is to control the "pests."
Thomas J. Theobald (Borland)
to folks where it might make a difference.
T
John Elrick
> John Elrick wrote:
>
> > Not true anymore - I can print 1000 pages for under $10.00,
>
> And bind it?
No - but I can't put pretty holograms on a CD for a few cents either<g>
Nor can I copy four manuals along with the CD for a few bucks.
John
John Elrick
> John Elrick wrote:
>
> > Actually, it may have the opposite effect. Contracts that have
> > contradictory or confusion sections are fodder for ambulance chasers.
>
> How many of Borland's customers are also lawyers and/or ambulance chasers?
> However, the larger a company gets, the more it becomes a target for
> "ambulance chasers" as you put it. All it would have taken is one of the
> several people I've encountered since coming to Borland to put me out of
> business with their frivolous lawsuits.
I've been hit with one frivolous lawsuit and won, but against my better
opinions of how. It went in an out several times, but I put forward the
simple proposition that, even though I could have settled for less than the
fees I had to litigate.
A friend who has been in and out of lawsuits (frivolous and some not<g>) got
hit two years later with a couple of whammys that were uncalled for. I gave
him some advice that I had disregarded myself and the suits vanished
rapidly.
The advice is simple - thermonuclear war. If someone sues you (especially
frivolously), you counter with everything up to mopery with intent to creep.
Hit them with 200 page discovery documents, sue them for any legal reason
you can think of and make sure that you hit them successively with at least
three new suits PER DAY for a minimum of two weeks. Charge their attorney
with unethical practices if you can, and dig up every piece of dirt you can
put down into a subpoena. At any meetings, it helps to foam at the mouth a
little and declare that you are drawing up the Supreme Court appeal
documents now. Vaguely hint that you are planning to file criminal charges
against both the plaintiff and his/her attorney.
Win or lose, people will think twice before messing with you. And you only
have to do this once in a rare while.
For some strange reason, people only like to frivolously sue those that
don't fight back. Those that declare all out war at the first minor charge
are avoided like the plague.
That is how you deal with frivolous lawsuits. Make it too painful for
anyone to consider.
John
John Kaster (Borland)
> That is how you deal with frivolous lawsuits. Make it too painful for
> anyone to consider.
It seems you're saying our new license agreement is a good way to start this,
but I don't think that's what you're trying to say in the rest of your
message.
Kyle Cordes
> On Thursday 14 February 2002 09:13 am, Alan Questell wrote:
>
> > If you want to publish a benchmark, go ahead and do it. That would
never
> I agree that the clause is unlikely to stand up in court, but I do not
have
> the legal and financial wherewithal to withstand a legal challenge.
Every
> writing contract I have ever signed explicitly says that in such
cases, the
This reminds me of this page:
http://philip.greenspun.com/wtr/dead-trees/story.html
About 10% of the way down, the paragraph that begins "The most upsetting
contract provision is indemnification."
--
[ Kyle Cordes * ky...@kylecordes.com * http://kylecordes.com ]
[ Consulting, Training, and Software development tips and ]
[ techniques: Java, Delphi, ASTA, BDE Alternatives Guide, ]
[ JB Open Tools, EJB, Web applications, methodologies, etc. ]
Kyle Cordes
> Let's assume, for the sake of argument, that software is sold, not
> licensed. That brings a host of consumer protection laws to bear, at
least
> for products sold to consumers. The same laws to not hold for products
sold
[...]
This was an excellent post and analysis. With plain old copyright laws
instead of EULA, the software market would continue pretty much as it
does not, except with perhaps more and better comparative reviews /
benchmarks etc. floating around.
For vendor that couldn't survive without a EULA to limit negative press
about their products... well, we'd be better off without those anyway, I
suspect, and they would be few in number.
Peter N Roth
have them 'splain it, rather than you and Anders
and Thomas being thrown to the wolves?
Unless you LIKE this atmosphere, of course ;o)
--
Grace + Peace,
Peter N Roth
Engineering Objects International
http://engineeringobjects.com
"John Kaster (Borland)" <jka...@borland.com> wrote myriad messages...
Ray Lischner
> It seems to me that what you are signing is a statement that you haven't
> plagiarized any of the material in your article.
You overlooked the bit about the "right of publicity."
Ray Lischner
> Have you asked if Borland would assist you with producing a benchmark? If
> we would review it to make sure it's accurate? If we would object to you
> publishing it?
If Borland's intent is to ensure that benchmarks are fair and accurate,
Borland's legal team should have worded the license differently. Instead of
an outright, total ban on publication, you could have asked to review
benchmarks prior to publication, or asked to review the source code for
benchmarks. But the license doesn't say that. It says "You may not ...
disclose or publish performance benchmark results for the Product." Period.
Full stop.
No, I have not tested this license term. I have not requested a waiver
(according to section 13.8) to allow publication of a benchmark. I object
to 5(h) on philosophical grounds, not practical grounds.
John Kaster (Borland)
> If Borland's intent is to ensure that benchmarks are fair and accurate,
> Borland's legal team should have worded the license differently.
I agree. However, licenses are usually focused on what you *cannot* do, not
what you can.
David Erbas-White
product, you hire a consultant to make (for example) the fastest 'sieve'
program (or whatever) that he can. Then you, as the end user, run the
program and report on the results. The consultant has no control over
your end use, and you have not agreed to the license. This 'game' can
be played ad infinitum, which just goes to show the uselessness of the
language in the EULA.
David Erbas-White
Leonel
"John Kaster (Borland)" <jka...@borland.com> escreveu na mensagem
news:3C6C9E71...@borland.com...
> However, licenses are usually focused on what you *cannot* do, not
> what you can.
Hmm.. From the license :
<QUOTE>
2.1 (...) All rights not specifically granted to you herein are retained by Borland.
</QUOTE>
I interpret that to mean the opposite of what you said.
Leonel
David R. Robinson
since the product management people I talked to preferred it not be
there rather than be there.
Yeah, because Borland tools would typically outshine anyone else! :)
MS, Oracle and many others have prohibited publishing benchmarks
withouth their permission for several years.
David R.
Marc Scheuner
<ilcrawford.at.hotmail.dot.com> wrote:
>> bits and pieces with what we have today. One initial remark from myself
>> - you never owned the product, you always licensed it from us.
>
>That has yet to be decided. Adobe just lost a case in district court a
>quote from the judge, I quoted this in another thread.
>
>walked away with a CD, you bought that copy, EULA or no EULA.
The same tendency is emerging in the European Union - if you buy a
off-the-shelf software package, it's a SALE - you BUY it, you OWN it,
you can sell it off to whomever you damn well please. This does not
mean you have any rights to the intellectual property - but it's a
SALE, not a licencing.
It's a different story for large-scale, custom-made software packages,
which are not being sold over the counter .
Marc
------------------------------------------------------------------------
Marc Scheuner Software Engineer
Quest Software Canada Halifax, Nova Scotia, Canada
Email: marc.s...@quest.com http://www.quest.com