Water from a stone?
posted by Sarah
(Update: Overtaken by events. See the post here.)

Nobody noticed back in June 2006, but Quadralay has a new license agreement for ePublisher Pro.

Because of the relatively high price of ePublisher Pro (and previously WebWorks Publisher Pro) licenses, it's common for an organization to purchase fewer licenses than there are writers and then set up a dedicated "conversion machine" that runs ePublisher Pro.

Under the new licensing approach, this is no longer allowed. Instead, the license is determined by counting the number of users of ePublisher Pro. I can make a reasonable argument that Quadralay has a point with this approach and in fact, this was tried by RoboHelp for FrameMaker at one point. But unfortunately, the ePublisher Pro "users" are determined by a truly audacious method. Here is an excerpt from the licensing agreement:

1.4. A “user” under this EEULA [Electronic End User License Agreement] shall be construed broadly to include anyone to whom you permit access to author, co-author or materially modify a source document that is published by use of the Software and anyone to whom you permit access to review such a source document for accuracy, concurrence or approval.

In other words, a user is anyone who touches content that is later converted through ePublisher Pro.

But wait, it gets better:

6. Compliance Records and Measures.
[...]
B. Records. Accordingly, you agree to track the number of users as defined in this EEULA and to maintain reasonable records of such users, including usage logs or other records, sufficient to show at least the identity of any users and a time record of any instance of use. Any user will be presumed to be an author, to have made material modifications and/or to have reviewed for accuracy, concurrence or approval unless the End User is able to show otherwise by clear and convincing proof.

[...]

D. Confirmation of Compliance. You acknowledge and agree that Quadralay has the right, upon written request, to receive reasonable confirmation of the actual number of users in any calendar quarter and, if such confirmation is not reasonably satisfactory to Quadralay, then once in any calendar year Quadralay may audit user logs or, in the absence of user logs, other records or indications of the number of users sufficient to show the identity of users, a time record of all instances of use and, if you dispute whether any instance of use constituted use as defined by this EEULA, then sufficient information to show the nature of the use.

I have posted the entire EULA (from version 9.2 build 9054) here (RTF format) so you can read it in its entirety.

This is truly unbelievable. I don't quite know where to start, but let's tally the problems from our perspective as consultants:

• The auditing provision entitles Quadralay to user logs, which means we are potentially exposing our customers (who might not even use ePublisher Pro) to fishing expeditions from Quadralay. I'm no lawyer, but I assume that this provision conflicts with non-disclosure agreements that we have executed with our customers.
• The definition of a "user" includes authors, editors, indexes, and reviewers. It's unclear whether it includes people who, for example, review a PDF version of a document generated in FrameMaker, which is later converted to HTML through ePublisher Pro.
• The requirement for "user logs" appears to apply to the source documents, which means that we are required to keep track of who looks at FrameMaker files, which are potentially unrelated to the ePublisher Pro content.
• A content management system could keep track of these issues. This seems like possibly the worst reason I've ever seen for implementing a CMS.

So what should you do?

My advice is simple. Take another look at XML and/or structured FrameMaker. The cost of building XSL transformation templates may suddenly be more appealing than the cost of getting and staying in compliance with this new licensing approach. And furthermore, XSL is an open standard, so you eliminate the licensing risks of commercial software so eloquently demonstrated by Quadralay's new EULA.

When companies have limited budgets for software, they come up with creative solutions (like dedicated "conversion machines"). When those approaches are ruled out, they will find another way to mitigate the cost. Responses so far range from, "so what, they can't enforce it" to "We're going to take another look at Flare."

We are in discussions with Quadralay about how our unique situation as consultants should be handled in licensing. Stay tuned...

Labels: ePublisher Pro

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