Re: License Restrictions revisited
Re: License Restrictions revisited
- Subject: Re: License Restrictions revisited
- From: "Dennis W. Manasco" <email@hidden>
- Date: Mon, 2 Jun 2003 05:06:02 -0500
At 8:08 pm -0600 5/31/03, Andrew Rodney wrote (quoting the ColorVision EULA):
5. License Restrictions. You may not do any of the following
yourself, or through any other person and you may not permit any
third party with whom you have a business relationship to do any of
the following:...... (E) publish or otherwise communicate any review
of or information about Software performance to any third party
without the prior written consent of ColorVision;
This kind of language has become standard in the boiler-plate that
lawyers use to build software EULAs. It was first used (to my
knowledge) by the big database players. This has been in the EULAs
for databases from Oracle and Microsoft (SQL Server) for years. I am
pretty sure it is in the EULAs for DB2 and Sybase; I'm sure that
there are a lot of others.
Are people being sued and threatened over this stipulation? Yes. Most
emphatically. The manufacturers claim that the provision is to
protect them from scurrilous claims and poorly setup systems, but it
is being used to quash debate over the merits and fragilities of
individual database systems. Just the threat of a law suit has kept a
lot of comparisons from being published, both in print and on the
web. This topic has been covered in InfoWorld many times.
I have seen 'non-disclosure of performance or comparison' provisions
creep out of the big-database league and infect other software genres
repeatedly over the past few years. It's not surprising to find it
oozing into the color-profiling world.
Does it violate free-speech rights? No one knows and no one will find
out until someone with deep pockets spends years in court trying to
invalidate the provision in a particular contract. My bet is that the
provision will be upheld: The EULA is a commercial contract
implicitly agreed upon by the act of opening the package (or, in some
cases, buying the product). Arguments about the legality of
shrink-wrap licenses aside (another long court battle), commercial
contracts are not bound by Constitutional provisions. Thus I suspect
that a court will find the provision legally enforceable (though not
necessarily just).
In the meantime I could be rained down upon with hot and cold running
lawyers if I said that DB2 beats the pants off Oracle.
At 6:25 pm +0100 6/1/03, Ian Lyons wrote (quoting a posting from
another forum by a ColorVision employee):
From the ColorVision viewpoint, this is clearly a clause that we
have not enforced - nor do we want to.
This is a fine statement, but a meaningless one. The EULA for a
product is a contractual document. Stating, even in a public forum,
that a contract provision will not be enforced does not invalidate
the provision. Here the provision is not even refuted but merely
qualified. Such qualification may carry some weight with the court,
but likely not until the litigation has neared its conclusion after
several years of lawyers' fees.
At 4:59 pm -0600 6/1/03, Chris Murphy wrote:
Actually it would be a civil case brought by the grantor of the
license (if they dared to actually sue someone for expressing an
opinion about their product to a 3rd party). {sinp} And
realistically, any vendor who would be crazy enough to try to
enforce such a provision in their license I think would find it
would do them way more harm than a negative review of a particular
product they sell.
This is not the way it has been playing out. Litigation and the
threat of litigation have had a very chilling effect on the
discussion of database products and I suspect that much of the rest
of the software industry will soon be infected as well.
It would be relatively easy for a community of users to stop such
action in its tracks if it were considered unreasonable.
The user community has very little power here: A phalanx of
threatening lawyers will stop most people from saying anything about
anything. Courts are generally unimpressed by supplicants not
directly and explicitly affected by the case in question. The current
user has seriously deprecated his influence on the software company
by purchasing and the potential user has little power because the
company has no real indication of his intention to purchase.
-=-Dennis
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