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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.'"
NO! The government regulation is much worst than any company can do. You can always change the company. You can install FreeBSD and free yourself from Microsoft. You can switch to Symantec if you don't like McAffee. But changing government is a lot harder.
This case is a good example of the system working.
The government already regulates real estate leases in New York. And because of that the housing is notoriously expensive and of low quality. Do you want your milk-man to be obligated to sell you dairy? At the price set by the government? I come from the country, where this was the case, and as a result there was no milk in the stores.
I can go on and on, but I'll be modded up as a trolling flaimbait if I do. So I'll get back on topic. No government regulation, please. Thanks for your time.
In Soviet Washington the swamp drains you.
The biggest problem with this is that except for EULAs you usually get to see the contract before you agree to it. Most EULAs are inside the box and you can't see it until you open the box, and to top it off, most places won't accept returns on software that's been opened, so if you disagree with the EULA then you're out however much you paid for the software.
Free Mac Mini
Um I think that McAfee can do what it pleases for the most part with its EULA. Free speach is not garanteed out side of the government. The first admendment states that congress is the one who can not make laws aginst free speach. An EULA is and agreement. If you do not agree click NO!
Let's sit back for a minute and think about what would happen if NAI wins this one... suddenly most every vendor out there will have these types of terms in their EULAs, right?
;( ). I which NY all the best, and definitely hope that that clause in the EULA is found to be unconstitutional.
Well, think about some of the recent "Ask Slashdot" questions:
"Inexpensive Network Servers" (here)
"Time Tracking Software" (here)
are two of the more recent ones... now think about what people generally post in response to these questions: discounting trolls and flamebait, many people post with a recommendation for a specific product or advice about which products to stay away from, and they usually then state their reasons (aka "review")...
If someone posts a negative personal experience with a company/product, said company could demand that it be removed due to the clause in their EULA... worse, they could demand the identity of the poster and proceed to sue their ass off.
It's good to finally see some positive action on the technological front from the government (I live in Canada, but all governments are generally the same when it comes to technology...
But the degree to which a EULA is binding is a question that can only be answered by the courts -- not MS, or the end user.
They've found contracts void for various reasons before, and they'll do so again. Already there are rumblings about how EULAs might not be contracts at all.
There are limits to the right of contract, after all.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I don't agree. Granted I don't live in NYC, but
The government already regulates real estate leases in New York. And because of that the housing is notoriously expensive and of low quality
So if a landlord is allowed to increase rents whenever he wants, discriminates against minories, never fix a broken hot water system all without goverment regulations do you think they won't? Of course they will!
If car manufactores were allowed to build shit/dangerious cars without regulation, would they? Of course they would!
If software compaines were allowed to put whatever they want in the EULA would they? they do already!
For me, BSD is not an alternative, the same way that living under a bridge is not an alternative to a rental property. (nothing against BSD).
Computers have gotten to the point that they are an essentual service, and as such, the unfair conditions the compaines like MS and McAfee put in their EULA's should be regulated.
One thing you might want to consider is that the only thing that puts teeth into EULAs in the first place is government regulation.
Think about it. If you break an EULA, the only practical responce the software company has is to sue you or get an injunction in court- that is, get the government to slap you upside the head.
If the government wasn't involved at all in EULAs, what course of action would the software companies have? Send you a nasty letter? Stick their tounge out at you? Take their ball and go home? Without the government sanctioned court systems, EULAs would be worth less than the paper they are printed on. (doubly so for click through licenses).
Do you want your milk-man to be obligated to sell you dairy? At the price set by the government?
Do you see the difference now? In your (straw man) example, you have the government forcing you to do something. ("Sell him milk or I'll shoot you in the head.") Whereas, prohibiting non-defamation clauses in EULAs, the goverment is refusing to use force on you. ("I don't care that he called your product a piece of dirt. I'm not spanking him.")
To make it clear, if the government makes it illegal to put non-defamation clauses in EULA, there is nothing preventing a company from putting one in the EULA. It's just that when the company takes you to court on breach of contract, the court will laugh and tell them that such clauses are uninforcible. (You've seen the "If any part of this contract is found to be invalid, the rest of it remains in force" style clauses in EULAs haven't you? Why do you think they are there?)
"By buying this pack of cigarettes, you agree not to measure nicotine levels or any other compound. You also agree not no write unfavorable reviews or studies about cigarettes regarding possible diseases or addiction. In the event you become sick, you agree not to tell your doctor you are smoking cigarettes and you shall not accept any treatement for lung cancer or any other disease associated to smoking"
Opus: the Swiss army knife of audio codec
EULAs violate general contract law in many ways, that's why companies are trying to pass the UCITA, they know that without it their EULAs are worthless. They wouldn't waste time on a law that didn't help them.
By the time you see an EULA you already own the software. They withhold your right to use it until you "agree" but that's really extortion. They offer your the right to use the software, but it's not theirs to offer which means they're not offering you anything. There are other issues with it, these are just the two most obvious.
Remember, they're pushing for the UCITA because they need it.
What if you do not even know of the EULAs existense? I have McAffe OEM bundled software and have been using it for several years. I did not know that there was an EULA until today when I read about it on Slashdot. Should I now stop using the software? And If I wrote a review on my past experience with MacAffe software, should MacAffe sue me, or Toshiba? And do I have grounds to sue Toshiba? It seems like I should be sueing somebody but I can't decide who. Please help.
A benchmark is not a review. A benchmark is more of an objective test of the performance of an application which can be dependent on a vast number of factors, poor configuration being among them. There's a major difference between a review saying 'this program sucks' and a benchmark saying'this program sucks because it's slower than THAT program'.. the first one is pretty much purely subjective, but the second should have a basis of underlying equality of all factorts except the two actual components tested.
You can't just slap a comparision of Apache and IIS up somewhere and say 'because of unit frob, Apache performs better' without qualifying your goal of comparing apples to apples ("well, in actuality IIS was running on a 486 with 32MB ram.. but see? Apache was faster, wasn't it?"). Remember one of the first Netcraft IIS vs apache reviews where it was revealed Netcraft tuned the hell outta IIS but ran Apache on a stock RedHat (or some such) install? Didn't even tweak number of children or any such crap?
Vendors are perfectly in their right to oversee benchmarking their products in a comparative fashion to insure equality (even though in some cases that fact still gets lost in the shuffle).
-'fester
You're absolutly correct about benchmarking and how they can be skewed by configuration, but you're dead wrong when you say
Vendors are perfectly in their right to oversee benchmarking their products in a comparative fashion to insure equality (even though in some cases that fact still gets lost in the shuffle).
if by that you mean they should have the legal authority to deny any benchmark that they don't approve of. That is akin to passing a law that states "you may only print the truth, and I get to decide what that truth is."
A company *does* have the right to set up its own benchmarking study to counter anyone else's that they feel is unfair. As a potential customer I want to be able to read as much about a product as possible. We the public are not stupid, and we should not be treated as such. I (and everyone else) am quite able to decide which benchmarking studies I am going to put the most weight on. Benchmarks that have no configuration data published with them get deep sixed. Benchmarks paid for by the company in question are met with a healthy dose of scepticism. Benchmarks from people/organizations that I have deemed fair (because of past work) I'm going to put more creedence in.
This is no different that real life. I don't need any law or licensing agreement to tell me which newspaper, columnist, TV station, author, etc I should "believe in."
If a company wants to sue you for lying about their software, they should be able to sue you. But they should not be able to prevent you from talking about it, analysing it, or comparing it.
In the UK, the burden of proof is on the defendant to prove that what they said is right, but in other countries, the burden of proof is on the complainant to prove that what was said was a lie.
http://pcblues.com - Digits and Wood
Er,
Couldn't you get around this by :
1. Getting a friend to purchase and install product.
2. Sit next to friend and watch them use product.
3. Write scathing review.
Anyone?
You are in a twisty maze of processor lines, all alike.
There is a lot of hype here.
No EULA has ever been tested in court. Furthermore, EULA's don't meet standard contract requirements as upheld by nearly every state in the union (there are one or two where the EULA *might* be binding, but again it's never been tested). The current operating legal opinion is that a EULA, if brought before the court, would fail to meet even the minimal requirements of contract law and would be struck down.
It's an urban myth - spread with great joy by companies like Microsoft - that a EULA is a contract, or even an expression of actual law. It isn't and never has been. In fact, most companies are very well aware that their EULAs would go down in flames if they ever saw the light of day before a judge, which is why *no* company has *ever* tried to enforce a EULA in court. If companies like Microsoft thought they could use a EULA like any other legally binding contract, they'd be wielding their EULAs like giant legal clubs - but they aren't. That should tell you just how much faith the companies themselves have in these articles. And why they work so hard to get legislation passed which will make their EULAs real contracts retroactively.
Funny thing is, when companies like Microsoft say "it's the law", even though it's not and that fact can be readily confirmed, most people simply take their word for it. Just like when MS and others go on and on about "intellectual property theft" when there's no such thing - it's copyright infringement, a legal violation which has *nothing whatsoever* to do with the legal act of theft. But still, ignoramuses scream "theft!" because the people they mistakenly trust shout the same thing and they're too lazy to check out the facts for themselves.
EULAs are worth the paper they're printed on. The only laws that actually apply are those incorporated into state or federal code dealing with copyright. None of that code exempts EULAs from having to meet basic requirements to qualify as a legal contract.
Max
My god carries a hammer. Your god died nailed to a tree. Any questions?
"The oil companies might be big and nasty but they do at least compete."
This may be true in theory ("In theory Marge, Communism works. In theory."), but it would be tough to convince me that it's just coincidence that ALL of the gas stations in town decided to do a price hike of the same amount a couple days before their normal weekly change, and also that it was just coincidence that they all did a SECOND jump during the week. It be hard to think of something that reeks of more collusion than this.