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.'"

Comments

Oracle next?

[Anonymous Coward]

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.

Re:Oracle next?

[uncleFester]

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).

Re:Oracle next?

[FatRatBastard]

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."

The goverment should regulate EULAs

[DavidJA]

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?

Re:The goverment should regulate EULAs

[digitalunity]

Most EULA's contain clauses which state that your usage of their software indicates your agreement to the formentioned EULA. A EULA is a legally binding contract, and if you use a companies software, you 'get your hands tied'.

I think one thing we all need to focus on are unreasonable terms, such as Microsoft disallowing the usage of Open Source software on .net or the public criticism of a software company. We need what you describe, desperately. I'm not a *big goverment* kind of guy, but there are times when intervention is necessary. Has anyone actually read a Hotmail agreement recently? You'd think that'd be enough to scare off any avid Microsoft fan; but I guess not.

Re:The goverment should regulate EULAs

[Floyd Turbo]

No problem. My EULA says that by selling software to me, a company agrees to be bound by my EULA, which also provides that I'm not bound by anything in the company's EULA.

Re:The goverment should regulate EULAs

[EllisDees]

A EULA is only currently legally binding in two states, and it has never been tested in court in those.

Re:The goverment should regulate EULAs

[mi]

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.

Re:The goverment should regulate EULAs

[Sc00ter]

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.

Re:The goverment should regulate EULAs

[DavidJA]

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.

Re:The goverment should regulate EULAs

[WNight]

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.

You need my permission also

[LM741N]

I hereby declare that this comment cannot be moderated down without my express permission :)

Scary Consquences for Slashdot

[Jester998]

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?

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... ;( ). I which NY all the best, and definitely hope that that clause in the EULA is found to be unconstitutional.

Cigarettes next

[jmv]

"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"

Wired article more detailed

[Robotech_Master]

Wired has a better article about this situation. It goes into more detail than the short blurb cited in this story.

Lawyer Q&A

[cgleba]

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 :(.

Way around this?

[ColaMan]

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?

Full Text Available

[bief]

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.

How about a "positive" review instead?

[TheFlu]

Maybe we could all get around this, if NAI wins by posting "positive" reviews instead of negative ones, like this:

"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."