DCMA Notice with a twist

Correspondent from New York


DCMA notice reply

Your correspondent was busy with house-cleaning and found an unusual DCMA notice. This blog removed all things about the Delphi 2010 white-hat, Delphi XE2 information. We did it voluntarily; you should have emailed a PDF file to us (preferably PDF/A and digitally signed by Embarcadero -- and also remember to remove any metadata on the PDF before sending it to us).


Dear Embarcadero,


We removed the items as requested, voluntarily. However, we wish to bring towards the attention of the incompetence of your legal department and the developers who are involved in the copy-protection mechanisms in your company. We do think that you need to bring in legal counsels with solid experience rather than paralegals or legal professionals who copy and paste contracts (including patents, trademarks, EULA, etc.) without doing extensive searches, and professional developers who can develop excellent copy-protection mechanisms rather than what is present in Delphi and your products.

• While doing extensive search on ChillingEffects.org that other than this blog, your legal department did not submit to remove links or hyperlinks from File-Sharing hosting companies nor post a DCMA notice to various pirate sites that offer links to pirated copies of your product. There was not even 1 single DCMA notice on ChillingEffects.org other than what was severed on this blog. In the mean time, you can review various notices filed by other companies on that site to get some idea what other companies' legal department actually does. You can also see BSA notices filed there (where your company name Embarcadero is used).
  
  
• We also wish to bring to your attention trademark search issues in our previous blog. It is clear that your legal department did not do extensive searches on the Internet and prior art (see the Trojan Logo) bearing similarity and likeness to your trademarks. May we suggest that you do even more extensive trademark searches and references the next time?
  
  It becomes ridicule to use the Centurion head logo with similar likeness to an adult-product. We do urge that your respected company change the logos in the next versions of Delphi.
  
  
• File-Sharing and going after file-sharing forums. We are very surprised that several Delphi file-sharing pirate sites have operated for several years without being shut down. The owners continue their business with impunity. Should you go after them instead with vigor and shut them down instead? Yet it seems that you (or your legal department) do not go after their ISP nor their back-bone. It is dry humor that there is Embarcadero Germany GmbH and German pirate forums are hosted in Germany.
  
  
• Trademark dilution. Over the past years, there are other sites like Borland Studio, DelphiGroups, DelphiForums, DelphiBasics which use the prefix "Delphi" as part of their website. That in-turn, dilutes your trademark, making it harder to defend. For example, you rarely see sites such as "AdobeReFlash.com" because Adobe's legal department serve notices to defend their trademarks vigorously. For other companies, they prohibit certain domain-names and even file domain-name disputes for fan sites.
  
  
• Patent information. We observe that patents (in the Help, About menu option) were filed months late or even years later, leading to loss of innovation and prior art being developed which could be used to dispute your patents.
  
  
• Copyright and innovation. We hope that instead of relying on poorly developed copy-protection mechanisms, you modernize your copy-protection schemes to thwart piracy. We would like modern technology, innovative cutting edge copy-protection techniques that do not penalize legitimate owners (like installing a dozen times due to bad installation issues, name-change on workgroup or machine-name causes Delphi License manager to act strangely and install crashing, etc.). Your current copy-protection scheme is broken. You can see your latest product being cracked within weeks after release.
  
  
• China prices. Can your legal department explain the huge disparity in price (approx US$7,800) vs. USA prices (approx US$880++)? What effort is within China to prohibit pirate Chinese sites which circulate Delphi illegally?
  
  Does your EULA contravene EU consumer protection laws?
  
  
• Iran (Persian) Delphi sites. What effort are you making sure your product is not used in Iran (contravention of the US Embargo) and other countries that have US trade restrictions on them?
  
  
• AUP Policy on your own back yard (your newsgroups and forums). Would your legal department kindly draft an international policy regarding trolls and personal insults, attacks and slander on your newsgroups? It would be in contravention of safe workplace environment that many companies in USA (and in Europe Union and Australia) are requested to provide.
  
  
• False marketing or misleading information provided. Your department should look into facts circulated by Embarcardero itself regarding Delphi and related products and make sure that they distribute factually accurate information for marketing purposes, not FUD or half-promises. We would like to see factually accurate information about Delphi being distributed and also audited magazine numbers (formerly the Advertising materials inserted in each box of Delphi) so advertisers know what they are paying for.
  
  
• SCIMARK. For years the legal department have threatened various programming magazine publishers and certain Universities. This caused the Heads, Deans of Higher-Learning Departments to drop Delphi and use (non-Embarcadero) products. We wish to urge your respected company to increase performance instead of using legal threats to silence people. Floating point performance for scientific computing is serious business. Universities and Organizations which require high-performance super-computing order huge supercomputers worth millions of dollars and customized compiler suites.
  
  
• Enforcing Beta Test EULA. There were many leaks on the Internet about Delphi XE2. Why were the other sites not shut down or given DCMA notices to remove pre release information?
  
  

Your legal department and developers (who developed the copy-protection mechanisms) have their work cut out for them. Don't be surprised this comes from the very people who care about Delphi and no other site will have this kind of legal information.


Coming to that said, we wish to bring to your attention the inaccuracies of your statements:

• The blog owners highlight issues with Delphi that are destroying Delphi. Yet, instead of Embarcadero fixing problems, they highlight this blog as a trouble-maker and cause for concern. Yet, it seems that Embarcadero never goes and go after the trouble-makers (e.g., trolls, websites hosting pirate forums, file-sharers, owners of the websites which dilute Delphi trademarks, forums with illegal materials posted, the crackers, etc.)
  
  This blog is believed to be the only blog in the whole Delphi Blogosphere to report of one company embedding the Delphi compiler in their product for 4 years and the TPC source code leak which we believe nothing was actually done for more than a decade.
  
  
• Destroy Trademarks. Can you please kindly show trademark action against many sites that use Delphi in a manner that dilutes their trademark?
  
  
• Wrong information. (See above where we request for factually accurate information on Delphi). Your website could easily rebut all the information posted on this site - except that what we post on this website is more accurate than on your website.
  
  
• There is no big money for making this website. This website is symbolic of all the frustration that former Borland/CodeGear and now Embarcadero has given to Delphi users.