FC: A defense of Borland's license saying auditors may inspect your PC

[Declan McCullagh <declan () well com>]

Okay, so Borland says that if you accept its software license, its 
copyright enforcement goon squad will "have the right to enter your 
premises" to snoop through your records to verify that you're not lying 
about how many computers you have the software installed on.

The Internet's self-annointed privacy watchdogs are already savaging 
Borland. The author of the freshmeat piece says: "We forfeit our right of 
privacy at our facilities or our homes -- a right which we are guaranteed 
under the Constitution." (Never mind that the Bill of Rights only limits 
the power of government, not Borland.) The Slashdot crowd and maybe EPIC 
will be all over this soon too.

But what's wrong with this license? In exchange for something of value, you 
give up something of value. It's called a contract, folks, get over it. By 
granting Borland that right, you arguably gain software at a lower cost 
because of reduced piracy. What's more, people give up rights all the time 
-- if I take a job at Newsweek, I give up my right to freelance for Time. 
If I license a photo to ABC News, I might sign a contract giving up the 
right to sell the photo to NBC News.

It is true that my privacy right may be more important to me than a few 
hundred or a few thousand dollars -- though for the right sum, I'll be 
delighted to let Borland do an "ls -lR / | fgrep -i borland" on my PC once 
a month. But nobody's forcing me to sign on the dotted line -- or click on 
the "I accept" button. Any sufficiently sentient person will be able to 
weigh the costs (snoopy auditors) against the benefits (possible increased 
productivity) gained from the Borlandware. If the costs outweigh the 
benefits, I still have three obvious choices: (1) Tell Borland to go to 
hell; (2) Negotiate with Borland to excise that clause from the contract, 
perhaps in exchange for a higher price; (3) Take my business to a competitor.

If Borland's auditing clause becomes perceived as sufficiently onerous, its 
competitors will be quick to capitalize on it. When Yahoo/Geocities 
announced that it would own all your content in perpetuity, competitors 
announced they would not. Geocities members left in droves. Yahoo realized 
that they had made a braindead decision and backed down. It took all of 72 
hours or so.

True, many people don't read shrinkwrap agreements, and there are the usual 
jokes about the next version of Microsoft Windows requiring you to give up 
your firstborn to Bill Gates & co somewhere in the fine print. I don't have 
a good answer for that -- either these are contracts which are binding, or 
they are not. I think we're probably better served by considering them to 
be contracts, while simultaneously encouraging the industry to move to a 
more-or-less standard one that consumers will become familiar with. 
Additions can be highlighted and will be easier to spot. That approach will 
encourage the industry to stick with just the standardized contract, I think.

Personally, I wouldn't agree to Borland's deal, unless I could save so much 
through productivity gains it would be worth the hassle. (Saving "enough" 
would be roughly defined as the price of a Lotus Esprit Turbo.) But in the 
fuss over Borland's contract, let's not lose sight of the fact that 
agreeing to it is our choice: Not everyone values privacy so much, or might 
sign off in exchange for the cost of a Honda Civic. :)

-Declan

PS: I haven't read the license on Borland's website; my comments are based 
on the mirrored copy on freshmeat.

**********

From: "John Cieciel" <uselesseater () msn com>
To: "dec" <declan () well com>
Subject: freshmeat.net: Editorials - An Open Letter to Borland/Inprise 
Concerning Licensi
Date: Mon, 14 Jan 2002 00:41:46 -0600
MIME-Version: 1.0


Borland licensing agreement which allows a Borland representative to enter 
your house to check your computer to verify you've paid the amount agreed upon.

<http://freshmeat.net/articles/view/369>http://freshmeat.net/articles/view/369
If true, very newsworthy so...

John Cieciel

**********

http://freshmeat.net/.misc/borland-license.txt

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.

**********




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