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Comment by howdydoo | Hacker News Reader

When a company lies in their advertising, typically you can take them to court and get relief.

If a car dealer advertises "free floormat with purchase", and they don't give you a floormat, you sue them. If it makes it all the way to the courtroom, it's an open-and-shut case.

Based on this advertising, I bet someone with the right lawyer could compel ZenDesk to release their source. In fact I hope this happens, then maybe companies will think twice before making false claims like this

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> Based on this advertising, I bet someone with the right lawyer could compel ZenDesk to release their source.

That's not even remotely how the law works.

It should be, and I'd argue how it used to be.

A random outsider couldn't do it obviously. But imagine if you had standing to sue, i.e. you signed up and paid for ZenDesk based on this advertising, and then later realized they were lying.

In that case, the plaintiff would sue for the damage caused by the lie, which would include the amount paid for the software.

The only case in which you might get the source code as a result is if you paid for the source code. Which is the complete opposite claim of what is being made on this page.

Yeah, you're probably right. But a guy can dream, can't he?

https://archive.is/0Oihx

And the amount you can collect is limited by section 14.2 of their Master Subscription Agreement to the amount paid to them in the last 12 months. [0] To get more you would have to show they committed fraud or were grossly negligent, which could then invalidate the contract. IANAL but this stuff is pretty standard.

[0] https://www.zendesk.com/company/agreements-and-terms/master-...

You could ask for specific performance instead of money... or both.

You ca ask for whatever you want - but there’s absolutely no precedent for achieving the court requiring the source be released.

Only about 500 years of common law.

> Only about 500 years of common law.

I don't think that's true - common law would consider the contract void when broken or not properly met, and award damages, not enforce it.

If a builder doesn't finish building a wall they award damages - they don't march them back to your house and make them finish building. That's a pretty fundamental part of common law.

OK. Here's a lawyer explaining it https://www.romanolaw.com/2020/01/03/how-to-compel-specific-....

Look at the examples given in your own article - they aren't going to translate to this situation. They're talking about contracts involving unique items where simply cancelling the contract can't resolve it. If you buy something and what turns up isn't what you want you can just return it.

Yes, and source code might have far more value to the buyer than money.

Potentially so, but if there was never a contract to exchange money for source code, then there is no performance you'd be entitled to.

It doesn't logically make sense to concurrently argue that you were misled that the software is FOSS and believe that you exchanged money for source code.

Talk me through how that gets to a court order to release source code. What legislation or precedents are there for that? If there aren't any, how would a judge arrive at that decision?

My dreams have been thorougly dashed. I cede.

Not at all. You can make them stop saying they're open source and you can get a refund + maybe some damages if you claim to have bought their product based on this false ad, but that's all. In no way are you ever going to convince a judge to order Zendesk to give you their code.

In the UK you can make a complaint to the Advertising Standards Authority.

https://www.asa.org.uk/

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