Do as I say, not as I do

More fallout from the TestDriven.NET vs. Microsoft department. I read your comments to my blog (no, I didn't moderate any of them) and read through Dan Fernandez's well written and concise response here. Dan is the lead product manager for Visual Studio Express, so other than the legal guys, this is coming from the horses mouth. Phil Haack has a great piece here with his take on it (which has an interesting spin, as he declares MS violated the TestDriven.NET agreement by reverse engineering it to determine how TD.NET works with Express, touche).

After reading through everything out there (including all the comments on Jamie's Slashdotted blog) I do understand both sides of the story. I do agree that MS is in their rights to put what they want in their EULA and they're right that users of TestDriven.NET in Express products are violating it. I don't agree that MS is playing by their own rules.

Specifically I personally have a real problem with Microsoft saying TestDriven.NET violates a EULA, yet they themselves do exactly the same thing with Popfly Explorer, XNA Game Studio Express, and the Reporting add-in. It's no different than saying cops are allowed to break the law because they're cops. No. You write the rules and live by the rules (lead by example). Just because it's your product doesn't give you the right to violate your own agreement.

There's also confusion in this issue because it's an EULA that TestDriven.NET violates. Let's look at that. End User License Agreement. IANAL, but in many cases of "agreements" they have never held up in court. They're simply that, an agreement. You either agree or disagree, but in the end there's no legal ramification either way against you. Remember the Dell incident where the EULA for Windows was shrink-wrapped but yet you had to agree to it. If you opened the package to read the EULA, you were agreeing to it even if you didn't agree after reading it.

I do agree with the Blue Monster in that it's their right to put whatever they want in their EULA. It's theirs and they craft it. The thing here is that it's an End User agreement. So who's at fault here? Jamie for building a tool, or everyone who's using it. I believe it's the latter and most Americans will agree (yeah, I'm going to get slack for this generalization) in the same vein as it's not the gun manufacturers that are at fault, it's the people using them. So everyone who's installed TestDriven.NET on an Express SKU and allowed it to run is in violation. Where's the cease and desist orders for all of you? Jamie certainly isn't in the wrong to create the software he did (and MS recognizes this) but users (including himself perhaps, assuming he tested it) are violating their agreement with Microsoft by using it.

The general consensus I'm seeing from the community (via comments and blogs) is that MS should patch the Express SKUs to not even allow loading add-ins. Of course, there's still the issue of their own add-ons but I'm sure they could get around that somehow. There's still the question of what specifically Jamie is violating (or rather what clause). Many people are asking that question but I guess it's a legal-speak problem as I can't find anything specific enough from Dan Fernandez's Blog:

"Jamie has also made available a version of his product that extends the Visual Studio Express Editions which is a direct violation of both the EULA and “ethos” of the Express product line."

If it's a "direct violation" what's the "specific clause" it's violating? Again I read it this afternoon and I can't see it. As for the violation of the "ethos" of the Express product line, ethos [meaning a distinguishing character according to Merriam-Webster] seems very subjective to me depending on who's looking at it. There's part of the EULA that states that you may not "work around any technical limitations in the software". Again, subjective here as I'm not sure that adding new functionality that didn't exist is a work around technical limitation. Express does not have a technical limitation running Unit Tests, it was just never designed with it in. Much like it can't edit images directly, do I voilate the EULA if I build something that let's me manipulate image files in Paint.NET instead of Visual Studio Express? Another comment is on reverse engineering the product (VS not TD) but I know how Jamie wrote his addin and it never reverse engineered anything. It uses a documented and public API that's been there for years.

I do like and agree with Frans' comment on Phil's blog entry:

"MS should have disabled add-in support in the toolkit. OF course they were tool lazy to do so or technically unable to do so, so they thought they could hide behind a silly phrase in an EULA which isn't even applicable here (as the EULA has no right on what Jamie distributes to OTHERS). If Jamie compiles his code on teh command line the whole EULA argument is moot, just to illustrate the point."

So a few options could be pursued at this point:

  • Jamie removes the Express support for TD.NET. Maybe end of story? He did it before, and only since it was re-enabled has this bear reared it's ugly head.
  • MS issues a patch to the Express line to not load add-ins. Problem is their own add-ons won't load (unless they themselves circumvent that)
  • MS finds out everyone who's running TD.NET and issues a cease and desist letter them them because they're violating their EULA. Won't happen and again, they would have to tell their own users of Popfly Explorer and other tools to do this.
  • MS strong-arms Jamie to remove the product, support, or both. Jamie collapses under legal costs and gives up. Might happen as Microsoft has more than enough resources to just simply throw at this problem to make it go away.

What a silly mess. Anyways, I'm done with this thread. Jamie has been Slashdotted, and life will find a way.


  • I don't see your point. popfly and xna are Microsoft's products there are no double standards no breaking of an EULA.

  • Another post which makes no sense at all.

  • Actually, if the EULA does say that end users aren't allowed to run Add-ns under the Express editions, then the end users aren't allowed to run add-ins, no matter who they are from. Also, in the product comparison for the different versions, they say that the Express editions CAN'T run add-ins.

    So since Microsoft is promoting the use of plug-ins (as long as its their own) but going after Jamie for (which I have used, and appreciate) does this line-up with the legal definition of "Dirty Hands"?

  • Ha ha ha. It's a trap!

    I've broken the *End User* License Agreement (EULA) by installing Pop-Fly, which works around a technical limitation. Naturally, I think Microsoft will forgive me for this breach, but may lord it over me later. ;)

    One question, assuming for the sake of argument that the End User is not allowed to use TD.NET with Express, would Jamie's distribution of TD.NET run afoul of the DMCA act?

  • Khuzema/Kuwait:

    How much attention has he gotten for his product during all this flap? How many orders has he taken? I sure would like to know. All of this coverage has sure given him some prime free advertising.

    My issue is not that Jamie makes money off of TD.NET. My issue is that he's doing it in a way that *none* of Microsoft's other partners do it -- he's playing by his own set of rules -- rules that everyone else is following.

Comments have been disabled for this content.