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NY AG Sues Network Associates Over License Terms
An Anonymous Coward writes: "Excite is running an article about how New York is suing McAfee over what it considers a restriction of free speech because McAfee does not allow customers from publishing reviews without prior approval from McAfee. From the article: 'In one instance, Network Associates demanded a retraction of an unfavorable review published in the online and print magazine Network World, citing a clause on its Web site that prohibits product reviews without permission, the lawsuit alleged.'"
A EULA is only currently legally binding in two states, and it has never been tested in court in those.
-- Give me ambiguity or give me something else!
Wired has a better article about this situation. It goes into more detail than the short blurb cited in this story.
Editor Emeritus and Senior Writer, TeleRead.org
because in the absence of explicitly stated agreement the copyright holder by default reserves ALL rigts and you can do nothing at all with that piece of software, not even run it :-(
Wrong. 17 USC 117 makes it lawful for U.S. residents to load into RAM and back up software that they own a copy of. However, in some jurisdictions, mere possession of a copy does not necessarily constitute owning a copy; this can happen in a software rental.
In the U.K., loading and backing up software may or may not be protected as "fair dealing".
Will I retire or break 10K?
Imagine if this was a drug, and the company line was, "You can't post critical comments about our drug, even if it almost kills you"?
Or an automobile, and you can't post critical comments about it, even if the airbag doesn't work?
Or a fire-alarm, and you can't post critical comments about it even if it doesn't alarm when there's a fire and causes your hosue to burn down?
This is plainly ludicrous. The public has the right to know if a product works, as well as both its pro's and con's.
Software -- *especially* McAfee's anti-virus software -- should be no different. We have the right to know if it actually protects us from viruses, and how well.
The fact that McAfee doesn't want to allow people to post revies of their product begs the question. What's wrong with this product? If its good, worth its salt, why don't they want people posting reviews of it?
The obvious answer is it doesn't work. I haven't used it, but its a safe bet that it doesn't work. In some critical way, its flawed.
And they don't want the public to find out about that.
No, McAfee does not have the right to prevent the public from finding about the flaws of their product. No, individual's can't sell away their free-speech right by a click-through EULA.
social sciences can never use experience to verify their statemen
Typically, restrictive covenants apply to employees who leave to start similar businesses. The rules are pretty straightforward as to what you can, must, cannot, and must not do. A few guidelines:
1. Establish the time period covered, both during and after employment;
2. Identify the "protectable interest" which the document is meant to protect such as "trade secrets," technology, methods, customer lists or other proprietary information;
3. Identify an activity to be restricted, or alternatively, the geographic restriction (or alternatively the customer/route restriction);
4. Set forth the "reasonable" and "necessary" reasons for the covenant (e.g. protecting trade secrets developed at considerable expense which provide the employer with a competitive edge over others in the field);
5. Be signed by both the employee and the employer;
6. Be dated; and
7. Be periodically updated as required by changing circumstances.
But absolutely DO NOT trample first-amendment rights. That's ALWAYS a no-no!
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Since I've uninstalled their VirusScan product, the EULA doesn't apply to me any more, so I guess it's safe to say this...
The product sucks. It was full of bugs, it caused my machine to be unstable and crash, and I'll never buy another product from them as long as I live.
If they didn't have that clause in the EULA, they would be out of business by now. (ok, I'm not actually naive enough to believe that). Given all the positive reviews in the big magazines, it's obvious they didn't use the product for more than a few days.
This "no publish" clause has been in their contract for over 10 years. I'm suprised that someone has finally stepped to the plate to challange it.. .
The New York State Office of the Attorney General has made public a pdf file with the full text of the petition. Makes for some interesting reading.