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[FYI] (Fwd) FC: License-drafting lawyer replies on Borland move: It's entirely common




------- Forwarded message follows -------
Date sent:      	Mon, 14 Jan 2002 11:19:36 -0500
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: License-drafting lawyer replies on Borland move: It's entirely
 	common
Send reply to:  	declan@well.com

Previous message:

"A defense of Borland's license saying auditors may inspect your PC"
http://www.politechbot.com/p-03029.html

---

From: "Schultz, Mark F" <Mark.F.Schultz@BakerNet.com>
To: "'declan@well.com'" <declan@well.com>
Subject: RE: A defense of Borland's license saying auditors may
inspect your PC Date: Mon, 14 Jan 2002 09:34:33 -0600

As one of those evil lawyers who has drafted hundreds of software
licenses, I read this and then the linked freshmeat commentary with
some amusement. Before the posse gets the rope and heads over to the
Borland ranch, I suggest they order several more tons of rope-they
will need it.  Good luck finding a commercial software end user
license that was written in the last couple of decades that does *not*
contain an audit clause.

Software pricing is often based on the number of users.  The audit
clause is the lawyer's shoulder-shrugging answer to the difficult
question of how you enforce these limits.  (The techies have better,
technical answers (which often don't make it into the product for
various reasons) and the business people have business model
answers-like ASP delivery).

It is better than nothing, rarely invoked, and probably never really
used. The first line of defense for the vendor if it suspects you are
exceeding the scope of your license will be something far more pesky
and persuasive than lawyers:  Lots of calls from annoying salespeople
offering an upgrade.

If they think you are worse than usual, a scary letter from the BSA or
SPA may come.  If they think you are outrageously bad or an actual
pirate, don't worry about that audit clause:  They will be showing up
at the door without warning with US marshals to enforce their rights
under copyright law.

As for the Constitution prohibiting this, sigh.  When will people
learn that the Constitution restrains government action (sometimes all
too feebly), and not private action?  The market restrains private
action far more effectively-if you don't like it, don't buy it.  Too
bad the same principle doesn't work for government.

Regards,

Mark Schultz

---

From: Sameer Parekh <sameer@bpm.ai>
Subject: Re: FC: A defense of Borland's license saying auditors may
inspect  your PC In-Reply-To:
<5.1.0.14.0.20020114095057.009d1910@mail.well.com> from Declan
McCullagh at "Jan 14, 2002  9:51:34 am" To: declan@well.com Date: Mon,
14 Jan 2002 07:40:42 -0800 (PST) Cc: politech@politechbot.com

 Allow me to add that 'audit' clauses like this are rather typical in
enterprise software licenses. The only thing 'strange' is that in this
case they are including it for consumer software. Many software
packages charge based on the type of computer or the # of users, and
the only way that restriction is 'enforced' is through audit, and the
'fear of audit' is a sufficient deterrent in many cases to prevent
large companies from violating the licenses to their enterprise
software.
 This is kind of new, but not really.

---




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