An Open Letter to Qualcomm on the MDP

Dear Qualcomm:

Hi!

Having now used a whole bunch of handsets that are powered by Qualcomm chipsets, I must say that I am fan of your firm and your products.

Needless to say, when I heard about the Qualcomm MDP last year at droidcon UK, I was rather excited. The Trepn power profiler would be a huge boost for helping to get a good, accurate picture of how certain classes, radios, and coding practices behave on Android. The MDP could help the Android developer community make better, crisper applications, thereby driving more Android handset sales and, by extension, more sales of Qualcomm chipsets.

The key word in that last sentence is “could”.

I would love nothing more than to rave about the MDP and what Trepn can deliver to developers. I even planned on dedicating a whole chapter in my next book, Tuning Android Applications, on the topic of the MDP and Trepn. Similarly, I would love to blog about results from my own testing and how developers could do the same sorts of analysis themselves. I would love to tweet about the MDP, talk about it in my conference presentations, and generally advocate the MDP’s use. Of course, I would only do this after shelling out $995 for an MDP, which I would be more than willing to do.

I would love to do these things.

But I can’t.

I do not own an MDP. And if I bought one, I would not be allowed to do any of that.

You partnered with BSQUARE to sell, distribute, and support the MDP. When you visit the BSQUARE store and add an MDP to your shopping cart, you are greeted by a very long “BSQUARE SOFTWARE LICENSE AGREEMENT”.

This is rather odd, to the point of being disconcerting. However, that would not be a problem if this were some typical hardware warranty agreement (e.g., do not use the MDP in a bathtub).

Instead, the agreement is chock-full of rather disturbing clauses.

I do not know who wrote these clauses. It might be BSQUARE. It might (gasp!) be Qualcomm. It might be some other law firm. Since the legal counsel who drafted it is unknown, I will refer to them here as the The Attorneys Who Shall Not Be Named, or TAWSHBN for short.

This letter is already getting a bit windy, so I will not elaborate on most of the clauses, such as:

  • Paragraph 3 preventing one from loading firmware onto a MDP

  • Paragraph 4 meaning that the MDP pre-violates its own agreement, if “the Software” includes Android, since it prevents you from allowing “the Software” to be licensed as open source

  • Paragraph 6 potentially violating the GPLv2, if “the Software” includes Android

  • Paragraph 8 including another agreement (INCOTERMS) that we are not privy to

  • Paragraph 17 making some rather odd requests regarding not asserting patents against BSQUARE and Qualcomm, which would seem to have nothing to do with testing an app on an MDP

  • And so on

As you can see, TAWSHBN isn’t exactly on my Christmas list.

Instead of worrying about those, let’s focus on Paragraph 10. The key portion is:

You shall not to disclose or permit the disclosure of the Software in any form or any information relating to the Software (including without limitation the results of use or testing) to any third party without the prior written permission of LICENSOR.

Now, the “You” in this agreement is an individual person. There is no place to indicate otherwise. Furthermore, companies or other organizations, as inanimate objects, have difficulty clicking mice and therefore completing click-wrap agreements.

Hence, “third parties” means anyone on Earth not employed by LICENSOR (that is you, Qualcomm). And “the Software” is not rigidly defined and is subject to modification by BSQUARE, so it may include Android, or Trepn, or both.

This means that if we use the MDP, we cannot:

  • Tell our boss the results of testing our Android application on an MDP

  • Work with a co-worker or contractor regarding the MDP

  • Tell the Purchasing Department that we bought an MDP

  • Write about the MDP in anything more than a private diary or journal

  • Talk about the MDP in any setting more public than a shower, and only then if our spouse/significant other/concubine is not within earshot

Furthermore, Paragraph 10 also contains:

You further acknowledge and agree that if BSQUARE or LICENSOR, in their sole discretion, chooses to provide any form of support or information relating to the Software, such support and information shall be deemed confidential and proprietary to BSQUARE or LICENSOR, as the case may be, and shall be protected in accordance with this Section 10.

Which basically means the Trepn support forum is banned from use. Come to think of it, that might explain the limited number of posts there.

I hope that TAWSHBN were retained by BSQUARE. I would hate to think that Qualcomm wasted its money on legal assistance that resulted in a license agreement that pretty much means nobody should buy an MDP.

My hope is that Qualcomm will come up with an alternative distribution mechanism for the MDP, one that allows people to obtain one while still being allowed to talk and write about the MDP and their results with it.

Note that this post is not asking for a “freebie”. First, I don’t accept free hardware just for me being me (though I could see bartering with you). It does me little good to have an MDP if nobody else can get one without being subject to these restrictions — why would I advocate that others agree to something that I do not agree with? And I am more than happy to buy one, if we can get this agreement repaired, nuked from orbit, or something.

And this post is not a bash on Qualcomm directly. I have no idea who TAWSHBN are, and even if they are part of Qualcomm’s legal department… well, let’s just say that there are a variety of firms for whom I hold great respect, excluding their legal departments. Qualcomm would not be the first, nor probably the last.

If there are ways I can be of assistance in fixing this agreement conundrum, please let me know.

 

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