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Borland demands users pay for license audit

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A couple of unfeasibly draconian clauses in the Borland's JBuilder and Kylix end user license agreements has caused much wailing and gnashing of teeth [*] in the open source community, with calls to boycott the products.

Kylix - the Linux version of Delphi - comes with very reasonable terms for proprietary software: you don't pay Borland a cent, so long as you use it to make GPL software.

But in an editorial at FreshmeatT J Duchane draws attention to an extraordinary demand made by Borland:

Borland reserves the right, for one year after the license expires, to enter your home and access your system and accounts to perform an audit.

"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," according to the 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," Duchane responds.

He points out that a subsequent clause requires the user to agree to waive the right to a jury trial: "In any legal action, suit or proceeding between the parties arising out of or relating to this License."

Although neither clause is constitutionally enforceable - they're essentially fatuous demands.

"Borland's the three-ounce gorilla out of its league. Microsoft can throw its licensing weight around, but a niche player - despite some nice tools and avid fans - has no leverage," Karsten Self, moderator of the Free Software Law Discuss mailing list, told us.

"Any sane person seeing these licensing terms can only do as Duchene suggests: destroy all copies of Borland software and turn to one of the other proprietary, or better free, products available."

Ouch.

Borland takes its developer community pretty seriously, but we wonder how such unenforceable clauses found their way into the EULA. Probably because no-one takes EULAs seriously in the first place.®

[*] Bootnote: It's extremely hard not to refer to Borland in biblical terms after this great history of the company in two parts by Verity Stob. Yes, we forgot part two. Find Part OnePart One and Part Twohere.

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