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------- 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
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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
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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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