The Register = Technology’s National Enquirer


There has been a lot of noise about the MVP scandal.

It got Slashdotted here – http://yro.slashdot.org/article.pl?sid=07/06/06/0046245&from=rss

It got “Registered” here – http://www.theregister.com/2007/06/05/microsoft_mvp_threats/

Now I know that I’m old fashioned……..

I’m over 40, I work, I vote, pay taxes, don’t cheat on my wife, love my kids, work hard, tell the truth, etc…..

I have many social and professional peeves, irresponsible journalism is one of them – and “The Register” is a poster child for slanted sensationalistic reporting.

The folks at the Register join the “Fun to Hate Microsoft” club over at SlashDot in their contention that – it’s cool to hate Microsoft for doing what businesses do, and it’s generally OK to break the law, but your should feel OBLIGED to break the law if you get a chance to screw Microsoft.

So for THOSE folks, a few reminders.

1.) When you violate a legally binding agreement, you break the law.

2.) When you knowing break the law, you  INVITE the consequences for the actions that YOU CHOOSE.

3.) When you are given the benefit of the doubt and advised that you are in violation of your agreement, remember, someone just did you a favor.

4.) When you ACCEPT an agreement (like a EULA or a Partner Agreement) YOU AGREED TO IT’S TERMS.

5.) A product that is sold for $135 to $10,000 (100 user pack) IS NOT A “HOBBY”, it’s a BUSINESS.

One may not AGREE with the details of a contract (EULA), I’m not sure I “agree” that Microsoft should prohibit add-ins for Express.

But, whether one agrees or not is completely irrelevant.

It’s pretty much a universal concept that we don’t get to pick and choose the laws that we agree with and ignore the rest.

We don’t get to say, I need to comply with the GPL, but not Microsoft’s EULA.

Likewise, we don’t get to say, stealing cars is illegal, but I call an exception today because I don’t think THAT GUY doesn’t deserves THAT CAR so I should be able to steal it and not be punished for car theft. The law is the law.

I don’t agree with everything in Microsoft policies, I don’t agree with some of the GPL, and as such, I have the right to DECLINE them.

BUT – rules are rules.

If you ask me, it’s just stupid to commit to an AGREEMENT – BREAK the agreement – then cry and whine when your actions have consequences.

 

Comments (23)

  1. Sean says:

    Yep.

    But just make it absoutely clear what is disallowed.

    If you don’t want people creating addins for your product, put a clause in the EULA stating that in explicit terms.

  2. Frederik says:

    Yes, but:

    "Are EULA’s legally binding?"

    The answer:

    "It depends"

    For example:

    http://lfpress.ca/cgi-bin/publish.cgi?p=174328&x=articles&s=shopping

  3. JoeStagner says:

    Sean – I agree, though it can be hard to make a legal document clearly understandable by we mere mortals πŸ™‚

    Fredrik – Perhaps, but…

    1.) Were is the ETHICS if compying with the intent?

    2.) The EULA is only on issue here, what about the VSIP Agreement ? (MVP Agreement ?)

    3.) If you accept an agreement then claim it’s not legally enforcable, then you BY DEFAULT are saying… "Take me to court and we’ll let the lawyers fight it out."

  4. Nigel P. says:

    Funnily enough, Microsoft were quite happy to breach the Eula of TestDriven.net in order to discover the author’s alleged “hacks”.

    If I download a driver to enable my old scanner to work with Vista – I am in breach of Vista’s Eula as I have overcome “technical limitations” of the software. We write tight code – get your lawyers to do the same.

    [Joe said] “We write tight code – get your lawyers to do the same. ” 

    That’s one of the stupidest things I’ve ever heard. So if I. like you apparently, have no morals ad brek the law and not get caught, it’s all cool.

    No wonder the world morally bankrupt !

  5. JC says:

    Joe,

    I agree with your opinion of The Register. That article is not what you can call a fine example of journalism. That being said I don’t think anyone is arguing that once you break a binding legal agreement, you’re breaking the law. That’s not point. At all.

    1) Are EULA’s even legally binding agreements? That’s for the courts to decide, but this is definitely a gray area at the moment.

    2) The Microsoft managers who handled Jamie did not tell him what part of the EULA he was in breach of, even though Jamie repeatedly asked to be told specifically what it was.

    3) They *finally* let him know a few days ago what clause he was supposedly breaking ("you may not work around limitations in the software"). This is such a vague clause that it is laughable. There is no way it could stand up to court scrutiny. Here in the US, when there is vagueness in a contract clause, the courts are required to give benefit of the doubt to the person who did not draft the contract.

    4) Jamie did not work around any technical limitations of the software, which is why I find Jason Weber’s continuous references to "hacks" laughable. Jamie merely used publicly available API’s that were documented on the MSDN site.

    5) At the time he was asked to remove support for the Express SKU, Jamie was not part of the VSIP program, therefore not bound by that agreement.

    Just a few things to think about… I could go on and on. This is definitely not as black and white as you’re making it sound.

  6. JoeStagner says:

    JC,

    I agree, communication might have been handled differently, the wording might have been different in the agreement, etc. etc.

    I guess I have 2 issues.

    1.) The intent was clear – we don’t want yuo to build add-ins that work for express. Even if he found a "technicaly" legal work-a-round, was doing something that we cearly intended to prohibit ethically correct? THIS is why companies have to sue about everything.

    2.) If his argument is "I don’t care what yo intended, I CONTEND that as the specific wording goes my action is legal", then he has NO basis to cry and whine if Micorsoft’s response is "YOu think you with in the law, we think you’re beaking the law" – we disgree, and the only solution is to let a court decide.

    One can’t have it both ways – if you want to gamble on your interpretation of contract law in a way that YOU KNOW conflict with the intention of the agreement – then you better have the stomach to see it though.

    If he really believes he’s in the right – why compain about a court process ? And why Should Microsoft have more obligation to conceed then him or anyone else ?

  7. T. Ferguson says:

    6. When an industry hegemon publicly threatens its developer constituency, you INVITE the consequences that YOU choose.

    7. When you piss off your developer community you lose the alpha geeks.

    8. When you can’t see the forest for the trees you are a blind man in the forest.

     [Joe said] So your logic is that Microsoft should abandon our legal rights so we don’t irritate developers who’s egos tell them they should be above the requirements placed on the rest of society ?

    Bull.

  8. Thomas Eyde says:

    Whether the EULA is legally binding and / or violated, is hardly the issue here, is it?

    The real issue, at least from my point of view, is how the EULA is violated. And the people representing Microsoft has failed to explain exactly that.

    It’s not difficult to understand what Microsoft intended with VS Express, but intentions are not an EULA.

  9. T. Ferguson says:

    P.S. You may or may not have noticed, but Jamie is in the U.K. You also may or may not have noticed, but the EU isn’t taking too kindly to you folks right now. I’m quite sure Microsoft’s legal dept. will not enjoy having their EULA’s actually tested in court.

    [Joe said] Understood – but the threat of support from the EU has NO relevance in the right and wrong of it.

    As someone who RAN a publically traded company in the past, I can tell you tha I for one, (if I were in charge at Microsoft, which I’m not) would be WAY more aggressive in many of these legal areas. ESPECIALLy with the EU issues – but that’s one of the reasons I’m just a geek here πŸ™‚

  10. JM says:

    Joe,

    “The intent was clear – we don’t want yuo to build add-ins that work for express. Even if he found a “technicaly” legal work-a-round, was doing something that we cearly intended to prohibit ethically correct? THIS is why companies have to sue about everything.”

    That particular phrase appears on many Microsoft licenses, and yet according to you it means “we don’t want yuo to build add-ins that work for express”. This statement obviously cannot apply to other products and would be totally irrelevant if it did.

    Thus I think we can logically conclude this statement means different things in different contexts. This is the very definition of ambiguity.

    [Joe said] Yea, I can’t argue with you there. I do think one of the problems is that often, even other lawyers can’t understand what lawyers write – and often lawyers do (in my experience) write intentionjally ambigous verbiage.

    It would be great if every legal document could include a “What this dowcument means for dummies” page.

  11. Joshua Slive says:

    You contend what he did is unethical if not illegal since it is clear MS doesn’t want add-ins to express.

    Another argument would be that restrictions on how we use legally-obtained software are themselves unethical.

    Can Ford ban me from adding a non-Ford muffler to my car?

    Can Coke ban me from mixing with rum?

    [Joe said] Interesting (and I sure hope not re: Rum & Coke).

    First – As I understand the laws (and I’m not a lawyer) what he did was illegal.

    But – your question is a very interesting one. If I can paraphrase…..

    If I sell you something – is it legal for me to include ANY conditions in that sale.

    When you buy a Coke, you don’t AGREE not to mix it with Rum.

    Remember, we’re not talking about the way we think things SHOULD be, but the way they “are” – as determined by the courts to date.

    So Far – the courts say you have the right to restrict use when you sell something (like prevent reverse engineering.)

    So again I suggest – if Jamie’s intends for his actions to test the legalities of such conditions – good for him and his belief in the legal system – but stop bitching about Microsoft ALSO wanting to test the legal voracity of the conditions.

     

  12. JC says:

    The one thing I can say for Microsoft on this issue is that if they allow Jamie to continue distributing his tool for the Express SKU, that is unfair to other tool developers. Obviously, that just cannot happen.

    While I agree with the intent of Microsoft’s actions, I am saddened by the way this whole thing was handled from the start. I agree with Leon Bambrick’s post, “TestDriven.net-Gate: Don’t Blame Microsoft, Blame Jason Weber” (http://www.secretgeek.net/testdrivengate.asp).

    Unfortunately this has now escaladed into a lose-lose situation for all parties involved… and feels like a slap in the face to the MS development community.

    Thanks for your blog and your opinion.

    [Joe siad] – Thanks JC, it does suck. And I agree, this kind of thing is ugly and is surely something our developer communty doesn’t need !!

  13. You said: “The intent was clear – we don’t want yuo to build add-ins that work for express.”

    As I understand the situation, TestDriven.NET (TDN) was developed using ONLY the Express version. (and, presumably, only with support for that version) (See note 1).  So, clearly, there is no visible barrier to making such an add-in; if there had, it would have been noticed before the first version had been released.

    Further, Microsoft gave the author of TDN an award, primarily for TDN, while the available version was still being developed on, and for, Express.  If “the intent was clear”, why didn’t the award granteers know it?

    These two facts show that “the intent” was NOT clear, and that Microsoft specifically took action supporting and enouraging what they now claim is a violation.  If they “don’t want yuo to build add-ins that work for express” — why would they give out an award for doing exactly that?

    I look forward to your response.

    Note 1: weblogs.asp.net/nunitaddin/archive/2004/08/24/219316.aspx

    The author of TDN states what it was built with here.

    [Joe Said] It may have been build with VS Express, but that doesn’t chage the restriction about making add-in’s for Express, his add-in is NOT only for express. It’s for all SKUs.

    As to the award, no one is saying theTDN is not cool, just that it needs to be used with Visual Studio Pro or better. (Even if it was built with Express.)

    For me there are 4 issues.

    1.) Did Jamie violate a legal agreement – this needs to be settled in court, no way around it.

    2.) Ethics – did Jamie act in bad faith. I believe he did and I refer to his attempts to extort Microsoft into renewing his MVP award.

    3.) Are agreements of this tyle legaly binding – again, this can only be answered in court.

    4.) Is the restriction (meaning MIcrosoft’s plicy) a good one?

    I don’t know. I don’t have accesst oall the financials.

    I wish it were legal to make add-ins for Express and that those add-ins must be free as well.

    Hell, I wish we GAVE all Visual Studio Versions away.

    A also wish they gave away Cadilacs and Harley Davidsons πŸ™‚

  14. Nigel P. says:

    “[Joe said]”We write tight code – get your lawyers to do the same. ”

    That’s one of the stupidest things I’ve ever heard. So if I. like you apparently, have no morals ad brek the law and not get caught, it’s all cool.

    No wonder the world morally bankrupt !”

    Wow. You have misinterpreted what I wrote. I am not advocating theft,the abandonment of IP laws or general lawlessness. Your ability to divine my moral character does not work properly.

    My point was: we write tight code. Lawyers should do the same. Instead, they do the reverse. They write airy fairy legalese, subject to all kinds of interpretation, because it makes things easier for THEM. It allows for post facto interpretation of the EULA and casts a wide net so that specific instances do not have to be covered one by one.

    To quote from another of your responses “The intent was clear – we don’t want yuo to build add-ins that work for express”. If this is the intent, then have it stated expressly in the Eula, along with all the rest of the stuff, rather than have an all encompassing Eula that technically puts me in breach when I install a printer driver.

    I completely agree with you that it now becomes a legal matter for a court to decide, however, characterising his concerns as “cry[ing] and whine[ing]” is unnecessary.

    [Joe Said] – Sorry Nigel, I mis-interpreted your meaning. I TOTALLY agree with you about lawyers and their work. I think the standard of performance should be higher than it generally is. Lwayers should …….

    a.) Write lawyerly stuff that is legaly sound, concise, and as obvious as possible.

    b.) Write stuff that is easily understood.

    As a divorced guy, let me assure you – not alot of ove for lawyers around my house, and having worked with many lawyers at Microsoft has not done much to change that disposition (though I have met a couple of very good ones.)

  15. Frederik says:

    Ethics, hmm.

    Well, he createdadditional functionality for VS Express. The EULA says you canΒ΄t overcome its limitations. Is that breaking the EULA? Probabily. It is a thin line, though. If you “extend” Office to add functionality, it will add value to Office and Microsoft will probabily leave you alone. (Maybe even grant you MVP status, who knows :))

    Anyway, assume he is in violation of the EULA. It then follows any user installing TestDriven .NET is breaking the EULA, too.

    But what about Popfly? It also “extends” VS Express. Am I in legal risk installing Popfly? See how thin this line is?

    Fact is, Microsoft never stated which line of the EULA he was violating before the lawyers started writing letters. That’s kind of lame IMHO. If you think he’s wrong, tell him exactly why.

    Still more… He uses APIs that are available in both VS Express and beyond. The plain Add in manager doesn’t work in VS Express. But if I use VS Standard, find a way to get an add-in running wihtout using the add-in manager, am I in violation of the EULA? No, probabily not.

    Next. Imagine a user “discovering” my product also works in VS Express. Did I violate the Express EULA? No, because I don’t *need* Express to create a product that runs on Express! The user is breaking the EULA.

    So. The trick to “extend” VS Express is known. You don’t need VS Express to create a program that uses the very same trick. Additionaly, Microsoft software also extends VS Express.

    You got a pretty messy situation here!

    (As for ethics, no, I don’t think it’s ethical.)

    [Joe says] You make 2 points that I find VERY interesting.

    1.) If one has the legal right to place restrictions on how you use a product then they also have he right to exept THEMSELVES from that restriction. But in this case (except for his later communication) one might have been able to conclude that becuase of the WAY Jamie implemented his add-in he honestly thought it was ok.

    But, given the later communication I think that, even if it were once true, it ca’t still be so.

    2.) Popfly. That makes THIS really interesting. If the UELA for VS Express says you can’t INSTALL add-ins ??????   mmmmmm……..

    Great question.

    But remember….. I still see 3 different questions.

    1.) Does what Jamie did break the law.

    2.) Is what Jamie did Ethical (even if it is later deemed not illegal).

    3.) Is the whle restriction a good idea.

    It’s sad to say the most people won’t spend much time thinking about #2.

    But I suspect we’ll all spend time thinking about numbers #1 & #3

    Thanks for the discussion.

  16. n/a says:

    XNA “extends” VS express also, but I bet “it’s ok!” in your books cause it’s microsoft product… πŸ˜‰

    [Joe Said] Yes, of course it’s OK. The law affords one the right to apply restrictions in the use of it’s products, it does NOT require that the entity that imposes those restrictions be required to adhere to them. I would have though this be common knowledge.

  17. n/a says:

    Thought so πŸ˜‰ “We make rules, we are exception!”

    I find this whole mess bit amusing. It took like what, 2 years for Jason etc. to state what part of EULA they think Jamie is violating. And Jason insist calling it a “hack” when publicly available API is used. Atleast Jamie claim so, haven’t checked myself what he use actually, but no one have told what this “HACK” is either…

    Considering all this, it does not make me secure at all to develop anything with microsoft technology/apis…

    Sadly there’s not alternative at the moment, developing to Linux is currently lost cause. I’ve converted some my windows software to Linux and users there do not want to pay anything, but they want everything.

    I think I have to consider MAC as a platform seriously when things are heading in way when someone can write very sloppy EULA and then get pissed off of someone using public apis…

    Luckily I am currently doing some mobile development so I don’t have to worry about it too much. But still, I have had to write several times something to “bypass” things without hacking/cracking, just to get pass some bugs. In this light those things would probably violate some sloppy written EULA too, and that is a scary thought.

    I think there will be no winners in this “mess”, only losers.

    [Joe Siad] This is so typical of th “it’s fun to ate Microsoft weenies”. This differentiation IS NOT A MICROSOFT THING ! It’s just how these agreements work FOR EVERYONE. Butm in typical Slashdot type fashion, when Microsoft wants to do what all other companies do – Microsoft is eveil becuase of it.

     You illustrate the point….

    I tried to ove to Linux, but there is no market.

    I’m gonna move to the Mac, that wll show Microsoft, I’m gonna move to the Mac, someday……

    I know, I’ll just do Mobile development. THAT will sho wthem……

    Don’t get me wrong – speak up intellegently, but don’t cut off your nose to spite your face.

  18. Frederik. says:

    Hi Joe,

    Well, the EULA states:

    “…you may use the software only as expressly permitted in this agreement. In doing so you must comply with any technical limitations in the software that only allow you to use it certain ways… You may not work around any technical limitations in the software.”

    In my reading, that means installing any add-on to Visual Studio Express is prohibited. I may be wrong.

    As I said, you can create a .NET Component using existing, public API’s that, once invoked, extend VS Express (any version of VS, for that matter). As such, that doesn’t necessarily violate the Express API — you don’t need to install VS Express nor accept its EULA to create such a component. In fact, you could even create such a component using Mono on Linux.(*)

    Hence, if I were to create such a component, I wouldn’t violate the VS Express EULA — my users would. Would it be wise or ethical to create such a product? Of course not! Legal? Maybe!

    Here comes the trick: the EULA says you can’t extend VS Express. If you install Popfly, you do basically the same thing. Does that violate the EULA? No, you argue, because Microsoft can make exceptions. But how do I, as a user, see the difference? On good faith?

    Clearly, this should prove that there is something fishy with the wording in the EULA. For me, if I were to solve this issue, a solution would be to:

    (a) have Microsoft provide a clear message on how the EULA should be interpreted

    (b) if required, have TTD.NET being pulled.

    Going to court over this clearly seems wrong. Jason Weber handled this wrongly, in my opinion. They should have been clearer on this issue.

    Just my two cents, of course, but I hope you understand my point of view — it’s not always black or white, you know ;).

    Frederik.

    (*): Mono == any implementation of the .NET API’s, done based soley on the public documentation available at msdn.microsoft.com, being most likeley legal in parts of the world that don’t have software patents, e.g. the UK.

    [Joe Said] You’re right – so much of this type of conflict could be eliminated if the lawyers could just write stuff we all could understand! πŸ™‚  

  19. n/a says:

    I don’t cut my nose, and considering English is my third language I hope I manage good enough with it so you get what I am trying to say… If not, you’re welcome to try discuss it in Finnish.

    Point is that if you are developer, sometimes you have to find ways to BYPASS things. Like in this case it seems by using public APIs (atleast no one have shown otherwise). So, if Jamie didn’t use public api, point out what “hack” did he use, and then I’ll agree he haven’t been ethical on the issue. Until then, burden is on microsoft side. IT REALLY IS THAT SIMPLE. It took like _two years_ to point place in EULA, does it take two more years to “point” out that accused “hack”?

    If you (as software developer) have to fear because of some sloppily written EULA when do your job, things are not right. We developers offer SOLUTIONS for problems, that’s our job. = Sometimes to find ways _legally_ bypass problems/issues that exit. Currently there’s only very sloppy few words in EULA, until it’s tried in court it’s not legal.

    This is microsoft “issue” because THEY are ones who made it as issue, you can deny it all you want or pretend itneverhappenednonono, but that is HOW PUBLIC SEE IT.

    As a developer, if I have to “fear” that anytime microsoft __or anyone else__ (do not think this is microsoft bashing) can be pissed off and come after you because they’ve been sloppy with EULA, I have to look alternative possibilities to earn living. That does mean looking other possible platforms, like mobile technology or OS X.

    I am not kid anymore, I don’t need extra stress from unknown stuff like someone being pissed off because I have had to find solution to bypass some bugs/restrictions when do my job…

    I wonder if this issue has much to do with different culture/way of thinking about things. As European this all look ridiculous amusing and blown out of portions to me.

    [Joe Said] πŸ™‚ Your english is WAY BETTER than my Finnish……

    I think someof this is cultural, and I agree about the community issue. Even if Jammie is ttally in the worng.

    The possbility that someone could not understnad a EULA and have that misunderstanding have implication that don’t appear untill later is bod for the develoer community.

  20. Mike says:

    Joe,

    “So Far – the courts say you have the right to restrict use when you sell something (like prevent reverse engineering.)”

    Actually, this is not the case.  When you SELL something, you generally give away all of your rights to control.  This is why EULAs specifically state that the “software is NOT SOLD”.  Personally, I have a REALLY hard time shelling out $150 for something that *I DON’T ACTUALLY OWN* (what the heck did I just shell out $150 for?).  Worse when its $300 or $500 or $10,000.  But the point is, according to the EULA, *I don’t OWN anything*.  I merely have permission to use it until someone changes their mind.

    (M$ isn’t the only ones, but their EULAs are consistently the most offensive.  There ARE EULAs that state the license cannot be revoked unless a violation occurs- but not from M$.  There also are EULAs that have terms that cannot be changed on a whim, without notice to the accepting party. ” Sorry, you’re in violation of the EULA”  “What, I never agreed to that” “yes, but you agreed we could change the terms whenever we like…”)

    It’s also worth pointing out that all Jamie was asking for was an *official* Microsoft statement of 1) what clause he was violating and 2) what Microsoft’s official position re extending Express is.  He asked, and you would know this if you had bothered to read the entire exchange, repeatedly for an official MS statement, and was repeatedly told “Microsoft will make no official statement but you are in violation”.  Shades of SCO v IBM where supposed “mountains” of infringing code turn out to be at most 325 lines of “non-literal” copying.  Or maybe a little closer to home, shades of the MS “many” patents that Open Source Software violates.  Patents which MS refuses to make known.  Why?  Why NOT tell people?  If the OSS community KNOWS which patents they are violating, you KNOW they are going to remove any offending code.  

    Oh wait, maybe that’s the point after all?  If we DON’T identify the offending code, we can keep charging royalties for infringement and threatening to sue.

    Finally, I find it interesting that almost all of the “Microsoft is in the Right” on this is coming from people with a vested interest in Microsoft being right.  Whereas a lot of those most outraged by the behavior have no particular interest one way or the other, having moved to F/OSS long ago.  Hmmm which side do YOU think is likely to be more objective?  Just a thought.

    [Joe Stagner] Of course you are correct about the use of the word SELL.

    And OF COURSE the people who are most likely to defend Microsoft are tjose that have a vested interest in that say way that Richard Stallman is more likely to defend a GLP lisence violation.

    Microsoft simply isn’t to blame for the way the law works. IF people don’t like the way the law works they should work to chang it. In the mean time, we have play with the cards that are already in the deck.

    But…..  I compleatly agree that there will be fewer of these blow ups if our lawyers can write more clearly and if we can communicate more effectivly than we did in some of the dialog with Jamie.

  21. T. Ferguson says:

    Microsoft is in no position to lecture about ethics.  For reference please see Anti-Trust cases filed by various North American & European governments.  Also see various patent litigation matter which have been lost by MS.  I could go on and on, but those are the matters of record.

  22. Rosyna says:

    So what exactly is a "technical limitation"? Is a bug considered a technical limitation? If I work around the bug, does that mean I violated the EULA?

    And in the US, you *cannot* restrict the ability to reverse engineer. Even if there is some clause in the EULA that says you cannot reverse engineer the software, that clause is not valid in the US.

    There are only legal issues on what you *do* with the reverse engineered data. Like violate a patent, reproduce copyrighted materials, or circumvent DRM.

    Secondly, it doesn’t seem like there were any technical limitations that were overcome by TestDriven.net. Does VS Express have any code to explicitly prevent all types of add-ins from being used? Or is it simply that there is no UI and doing it in any other supported method works?

  23. Tag says:

    Joe,

    It IS cool to hate Microsoft.  That’s all there is to it.

    You’re a technological teacher’s pet.

    You think Microsoft is cool and worry too much about rules.  Except the one you break.

    Loosen up.

    Tag