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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?
I hereby declare that this comment cannot be moderated down without my express permission :)
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."
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?
As for your 'free will' argument, that's like saying a woman can just quit her job if her boss is sexually harassing her, because she has 'free will'. Of course everyone has free will, but illegal behaviour is still illegal behaviour, and THAT'S what the government is supposed to be for - stopping bullshit like this.
Endless arguments over trivial contradictions in books written by ignorant savages to explain thunder in the dark.
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
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.
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 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.
You also have legal rights. The EULA must ultimately be enforced by the government - all contracts and copyrights are enforced by the government - so if government does not enforce it then there's no obligation for you to follow it. The government doesn't enforce illegal or unfair contracts, for example.
There have been many famous cases of airtight legal contracts being nullified by the judiciary. Fleetwood Mac's contract with Davis is the classic example. The judge nullified the contract for 4 reasons; one of them was that the compensation Fleetwood Mac received from Davis was "grossly inadequate".
To put it simply: contracts aren't binding unless the government agrees. So it's not just a case of "love it or leave it". That's not the way the legal system works. The legal system has human judges because there is a need to apply human values to the judgements. Sometimes the law is not enough.
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 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!--