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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.'"
This is a statement found in many products, most notably oracle. You can't publish Oracle benchmarks without Oracle's permission. Hopefully these rules will be rendered moot by this case.
In .au, the goverment regulates Lease Agreements for housing, home building contracts, home buying contacts, finance contracts all to protect the consumer and give them a minumum set of rights.
Why don't the goverment do the same thing with software EULAs?
Does the better business bureau do anything in the world of the web, or have they kept to keeping the brick and mortar people in line?
I hereby declare that this comment cannot be moderated down without my express permission :)
...an article about how McAfee is suing a Network Administrator for telling a friend to purchase Symantec's AV software insted of McAfee's because Symantec's works better.
The point that EULA or click-trhough license on their website is a binding contract does not seem valid. If this contract infringes on one of the basic rights it should not be legal, same as I can not legally sell myself into slavery by signing any contracts. ;-)
(most probably not, 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 :-( ).
Another interesting question is if just that part of the contract is found invalid in court, does the contract have the provision for invalidating clauses one by one or does the whole contract become invalid?
And if the whole EULA becomes invalid, can one legally violate their license and dissiminate ("pirate") their software as much as he wants?
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...
Okay, so I buy my software, I say okay to the EULA, I start using the product, realize that it blows and stop using it. Now, the EULA agreement is an agreement I agree to in order to use the software. If I decided to stop using that software, is that EULA still binding? If it is still binding, for how long?
Free Mac Mini
"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
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
EULA: ...by purchasing this vehicle, you agree to never criticize our product openly...
Implication: no safety reviews. So if I go out to buy a car, I can't find out how dangerous it might be because the EULA has prevented constructive criticism from being presented to the public. Let me see, this would be bad.
The solution is, of course, not to buy from such a company. Unfortunately, most people don't begin to read EULA's; they're like the fine print at the bottom of car commercials - almost no one ever reads them, nor do I think many humans have the physical ability to read small dark print on dark surfaces in small amounts of time.
This also sort of reminds me of the Dilbert commic where by opening his software, he becoms Bill Gates' towel boy... and the house comes for him. He'd get his lawyer to help, but the lawyer opened the EULA first.
My take: if the contract signee doesn't understand the implications of the contract, they shouldn't be held liable. That would have to be determined in court, but boy would that be good news for Native Americans; if it could be retroative, think of all the land they could win back.
Enough mindless babling.
F-bacher
James Tiberius Kirk: "Spock, the women on your planet are logical. No other planet in the galaxy can make that claim."
What if you are not the OWNER of the machine, just someone that say USES a version of their software ON A PUBLIC computer, say at The Library or CompUSA. GUESS WHAT YOU ARE NOT Bound by the terms of the Eula, you got it.
If I never ACCEPT one of these agreements I am not bound by it.
Screensots posted online could for example be used to formulate an opinion on their interface design.
As well, publically accesable Oracle servers (yes there are some) Could be benchmarked.
WITHOUT ACCEPTANCE of the EULA
The deed to my mothers property says on it Negros, nor Asians may EVER reside on the property and if you purchase this property subsequently you agree never to allow that to happen, I live in the North too, Ohio, not exactly Dixie country. It cannot be easily removed from the Deed because of all the legal issues. This is obviously UNENFORCABLE , Because it quite obviously is an affront to Civil Rights, but its there, as a Title attorney sometimes whats on Deed, you would laugh you ass off, THIS is my opinion of 90% of EULA's all horeshit, they can say anything they want like Borlan, let em TRY to enforce it, Can you say RUBY RIDGE meets MCAFEE ?
Let em say whatever they want , Im just looking for one Juicy enough that someone tries to enforce on ME, Ill be a wealty man. Anyone know of any fis trying to enforce ILLEGAL covents in their EULA's ??
Sig went tro...aahemmm.....fishing........
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!
--
... considering it's from McAfee. The guy, his company, and the people who run it now are notorious for inventive, inflammatory attacks on their competitiors; for creating hysteria and inflating virus cost estimates; and buying up rival companies to bury the competing technology forever.
In their defense, the rest of the industry isn't much better.
Try this link, for a start:
http://www.kumite.com/myths/opinion/pamkane.htm
First Amendment.
"Mod, mod, mod...and another troll bites the dust."
The government enforces contracts. "Congress shall make no law restricting freedom of speech, or of the press." Ergo, congress can make no law enforcing a contract that restricts freedom of speech, or of the press.
Seems simple.
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
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.
As much as I agree with your opinion, your comparisons are utterly ridiculous. This is not a life-threatening case, like your examples. This is much closer to "You can't post critical comments even if you don't like our candy bar." Comparing this to life and death situation only weakens your argument.
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
The legally binding part is untested, however, for the most part; I'd think they'd be found legal. There are few clauses which I think would be(or should be) found illegal.
That something is a contract does not make it leagal. All contracts are subject to law, and any that violates the law is null and void. For instance, we could make a contract where I made you my slave for use of my lands and protection. You could sign forms, swear before an alter and jump backwards over a broomstick, but the agreement has no legal force. I could not call the police to catch you if you decided to run away and I'd get spanked for not paying into your social security among other things.
Friends don't help friends install M$ junk.
This is pretty close to how it is anyway. Many of these disputes are settled out of court and the victims who receive compensation often do so on condition they won't blab. I have signed such a contract in my life (not about fatal drugs however) and I presume it goes on all around me - we just don't know about it.
-- SIGFPE
Good luck to 'em though - though I shan't say why I wish 'em good luck because then I might be violating the terms of my contract with McAfee.
-- SIGFPE
There are three things that protect slashdot from this. They have signed no agrement and they are either a common carrier or a news paper.
The first problem is easiest to see, Slashdot does not use and will always be able to avoid $oftware that comes with a license that is not the GPL. No use, no problem no matter how stupid contract law may become.
The other protections are a little less obvious, but a freshman level journalism class and the API stylebook helps to understand the purpose and function of liability laws. Slashdot is mostly a common carrier and can not be blamed for the comunications they facilitate. The phone company is not responsible for crank calls. If you count deleting machine generated posts and blocking other denial of services "editorial control" then Slashdot may be a newspaper. A company that wishes to sue Slashdot for slander must prove that damage intent and malice, and even then the truth is the ultimate shield. One of the goals of free speech is to protect the public by alowing people to reveal damaging truths. Now if Slashdot were to tell a lie, and knew it was a lie, and knew it would cause someone distress, Slashdot would have done something wrong and deserves to be spanked. Proving all of those things is next to impossible.
Friends don't help friends install M$ junk.
They've publicly said they would support that FBI magic lantern backdoor crap even when it wasn't forced on them.
/. story?... put that dog to sleep and move to a company that doesn't make their users feel like a cash cow, eventhough that's what they are :).
They make software that is supposed to PROTECT your system, now the first thing they do is a PR saying they will support it 100% in all of their product (i.e. not finding it) which by definition voids the product's safeness because anyone could *potentially* exploit this since the "feature" is now public knowledge.
I am sure there's already things like this in Windows, in firewalls or antiviral software, but it's *NOT* issued in a PR, it's *NOT* public knowledge and if someone would have to exploit it, he would have to dissasemble everything and do a hell of a tracing job. I wouldn't say anything bad if it was forced on them, but issuing such a PR really pissed me off as a system administrator. It meant that not only if you want to hack a system, target Mcafee's holes, but it made me paranoid enough to switch products. The guys behind the best antivirus software back in the DOS days really went down with the years, first screwing up windows registries, then that PR thing, now this
/rant
--- Metamoderating abusive downgraders since my 300th post.
Although humorous, that example is an obvious one. Did you know in Washington State, you can sign away your right to an unpaid break, as well as to your paid breaks? Just because you have a given right doesn't mean you can't give it away. It is when you are under duress that signing away your rights is against the law. It can easily be proved that you agreed to the EULA because you had to. I don't know, these are things for the courts to decide.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
I vote to interview a lawyer for the next Q&A. Frankly between these EULA arguments and the BSA stuff in the last article I'm frankly VERY confused :(.
If the clause is found to be illegal, is it simply deemed not to exist, or can McAfee try to find a legal replacement for it?
It is hard to see what would be a legal replacement for this particular clause (if the original one is illegal), so imagine an alternative scenario.
Say my employment contract had a confidentiality clause that was so restrictive it was overturned in court as illegal. Could my employer replace it with a less restrictive clause, or would I become free to distribute their trade secrets because the only thing that had been preventing me was the voided clause?
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
is don't talk about McAffee.
The second rule of McAffee is
don't talk about McAffee.
;)
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.
McCafee software protects users against virus'.
For computerize life, virus protection IS life or death.
Furthermore, in corporations, or even privately, information may be worth thousands of dollars, or countless hours of time. If its destroyed by a virus, that is very serious.
As serious as life or death? No. But its a question of magnitude, not type. This issue is simply a scaled down issue of those. If its wrong in those cases, scaling down shows its wrong in this case, because its different in scale (magnitude), not type.
social sciences can never use experience to verify their statemen
In response to:
"What do you think an NDA is?"
In a word: Unconstitutional.
social sciences can never use experience to verify their statemen
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.
What is it? Did they just say the product was bad, or were there things stated that go deeper?
The willingness to persue this action really makes me wonder what they actually have to hide.
Blogging because I can...
It's really tiring to see uneducated people call everything that comes from the State as being from the "government". The government is but a tiny part of the State.
The government is everything, not just the legislative branch. The government delivers the mail to my mail box, they pull me over when I'm speeding, and I send them almost 20% of my paycheck every year.
What?
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.
I tried installing McAfee AV on a vanilla Windows system (Win98, I believe), right after installing Windows itself. The retail version came with a CD whose first action was to tell me that it was out of date and that I needed a 15Mbyte download. After waiting forever for that to complete, it crashed halfway through. When I tried to take advantage of their return policy, called them multiple times to get a return authorization and eventually sent everything back via registered mail with return receipt, I never heard back from them.
Oh, and as far as I'm concerned, the contract is invalid: McAfee never lived up to their side of the bargain. So, I don't feel bound by any gag clauses in it.
"I use the latest version of McAfee Anti-virus and let me tells you that product is frickin' awesome!!!! It hardly ever catches the latest viruses, in fact it has a 100% success rate of never catching the most current crop of viruses.
In addition to all the other benefits this incredible product supplies, it also successfully connects to the Internet every morning and sends handy information about my surfing habits and computer configuration back to Network Associates, all without me having to push a single button! Go out and buy McAfee Anti-Virus now, you won't be sorry."
--It's Pimptastic!--
That something is a contract does not make it leagal. All contracts are subject to law, and any that violates the law is null and void.
Which is why most contracts contain a clause which says "if any of this isn't legal then the rest still stands". (Assuming this kind of clause is legal, a statue to void such a clause would have interesting consequences...)
It's not unknown for commercial entities to put all sorts of clauses in their contracts which are at best questionable.
Just like the way people do when reverse-engineering and re-implementing, except now you apply the same concept to writing reviews in compliance with EULAs. For example, Bob buys WhizBang version 1.0 with his own money. He installs it on his own computer and starts using it. Alice sits down next to him and watches him use it. Alice never touches the media, or the computer. She just asks Bob questions like "What happens if you click that thing over there", and takes notes while Bob does all the work. Alice can then write any review she wants, without violating any EULA that she never agreed to, explicitly or implicitly, in the first place.
Oxdung. It's the COURTS that do. They are part of the JUDICIARY branch of the State, not of the legislative (the government - national/legislative assembly - senate) nor executive (the president - governor - chancellor).
It's really tiring to see uneducated people call everything that comes from the State as being from the "government"
Judiciary is a function of government. Which may or may not be separate from other government functions.
With the US federal government even though the judiciary, executive and legislature were intended to be separate the way the two dominant political parties work renders that a nonsense in practice.
What happens if I use a piece of software someone else installed and click "I accept" at the EULA?
AM I bound to that EULA?
I see where there could be a clause for the original software saying "all people who use this are bound to it" but is that even remotly acceptable contract clause?
The Kruger Dunning explains most post on
No. Government makes laws; those are the dudes you elect. It is the STATE that has a judiciary function.
Big Money
The Kruger Dunning explains most post on
And if the government enforces such contracts which prohibit me from saying something, or force me to say something, then the government is telling me what I can or cannot say.
social sciences can never use experience to verify their statemen