Slashdot Mirror
Network Associates Loses Battle to Silence Reviewers
ajkessel writes "This article from today's New York Times covers a court ruling against Network Associates in a suit brought by the New York State Attorney General to invalidate Network Associate's shrink-wrap clause which states: 'The customer will not publish reviews of this product without prior consent from Network Associates Inc.' Network Associates has vowed to appeal." Reader SlashDotIDOne points to a CNET story which says "Network Associates could be forced to pay $0.50 for every license which included this draconian requirement: 'The customer will not publish reviews of this product without prior consent from Network Associates Inc.'"
Court Rules Against Network Associates' Software Review Policy
By Travis P. Scholtens
A New York court has ruled that Network Associates, a maker of popular antivirus and computer security software, may not require people who buy the software to get permission from the company before publishing reviews of its products.
The decision, which the company has vowed to appeal, could carry a penalty in the millions of dollars, according to Ken Dreifach, chief of the Internet bureau of the office of the New York State attorney general, Eliot Spitzer.
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Last spring, Mr. Spitzer sued Network Associates, which has its headquarters in Santa Clara, Calif., asserting that the company's software included an unenforceable clause that effectively violated consumers' free speech. The clause, which appeared on software products and the company's Web site, read: "The customer will not publish reviews of this product without prior consent from Network Associates Inc."
In a decision the parties received late Thursday, Justice Marilyn Shafer of State Supreme Court in Manhattan ruled that the clause was deceptive and that it warranted a fine, which she wrote that she would determine in the future.
Mr. Dreifach said the decision had implications beyond Network Associates. "These types of clauses are not uncommon," he said. The decision "raises the issue of whether these types of clauses -- whether they restrict use, resale or the right to criticize -- are enforceable," he added.
Indeed, other software makers, including Microsoft, have been criticized by product reviewers for including prohibitions in their users' licenses.
But Mr. Dreifach said the State of New York singled out Network Associates because, he asserted, "it was the most egregious example we saw." He said that before New York pursued other cases, the attorney general would wait and see whether companies changed their policies, and whether consumers used the decision to address concerns with companies.
Kent Roberts, the general counsel for Network Associates, said last February that the company had decided to update the language on its products. At that time, he said the new language would address Network Associates' real concern, namely, that reviewers did not publish reviews of old or outdated versions of the software.
Yesterday, Mr. Roberts said the company was still in the process of changing the language. "It's a process to change the physical product," he said. "We're trying to get it done as quickly as possible."
Still, Mr. Roberts said he disagreed with the court's reasoning. He said that Network Associates had never intended to restrict speech, but wanted to make sure that reviewers did not publish misleading information about its current release of products.
"I still fail to see -- having read the opinion several times -- how we are being deceptive," he said.
The State of New York asked the court to impose a fine of 50 cents for each product sold with the license. Mr. Dreifach estimated the numbers of products to be in the millions, but said Network Associates had not complied with a request to provide the precise number sold.
Mr. Roberts said the clause had appeared on "almost all of our products," which includes three product lines with several software versions on each line. But he said he did not have an estimate of how many products had been sold with the clause.
Reply or e-mail; don't vaguely moderate. Ex-O'Reilly/MIT employee, now a full-time Google employee.
Except that Network Solutions is a completely different company. Network Associates makes anti-virus software.
.NET" clause out of that EULA. It would be hilarious to see MS forced to pay 50 cents to everyone who installed a recent servicepack with .NET.
On a related note, I guess this means MS will take the "You can't publish benchmarks about
I've had enough abrasive sigs. Kittens are cute and fuzzy.
here
nada... seriously the state just asked for a fine of 50 cents per license, it's going to New York, not you
From the folks in the PGP arm of NAI (when PGP was part of NAI), I think they said the reason for that policy was to prevent journalists from testing software and coming to bad conclusions because they weren't familiar with the subject material.
It seemed kind of lame, but I can at least see where they were coming from.
--RJ
From what I understand from the article, it was ruled that the specific clause was unenforceble as it violated customers' free speech. If anything, I think the ruling creates a basis which says that a EULA can be a contract, ie. the judge ruled that a clause in the EULA was not enforceble and therefore not valid - this is a feature of contract law in many countries.
Tim
Backup not found: (A)bort (R)etry (P)anic
What New York Law Says
http://www.canarsiecourier.com/News/2002/0221/Oth
The parent post is a Goatse link.
The price of freedom is eternal litigation.
Type the following....
The server will return some javascript to load this url
http://198.247.175.96/goat/hello.jpg
which is the goatse link, and will also try to prevent you from closing the browser window.
But if your browser doesn't send any user agent string, (or if it sends the Mozilla user agent string), then you instead get back an http 302 redirecting you to the NYT article.
The price of freedom is eternal litigation.
This Censorship Clause is unenforceable, illegal and deceptive. First, it is by its own terms an illegal restrictive covenant, which violates public policy and thus Executive Law 63(12). Under New York law, a restriction that broadly chills or restricts important rights -- here, of free speech and fair use -- without a legitimate purpose, will be struck down. This Censorship Clause restricts consumers and the media alike from reviewing the software or disclosing important design or product flaws. Yet it serves no legitimate purpose, such as protecting trade secrets or confidential material.
The Censorship Clause is also a deceptive practice, contrary to New York GBL 349 and Executive Law 63(12). Specifically, it misinforms consumers that the company's prohibition against publication of reviews or benchmark tests (itself an illegal restriction) reflects existing "rules and regulations." Of course, no "rules and regulations" actually exist, under federal or state law -- a fact that most attorneys, including those who drafted the Censorship Clause, surely know. Misinforming consumers about their legal rights in this way is a deceptive practice, forbidden by New York GBL 349 as well as Executive Law 63(12). Finally, the Censorship Clause is also void and deceptive because it conflicts with the License Agreement contained with the company's boxed software. The boxed License Agreement, which is by its own terms the "entire Agreement between the parties," omits the Censorship Clause. Yet the company then places that very Clause on the face of the software diskette -- even though it is by the very terms of the License Agreement void and unenforceable. This, too, is an independent deceptive practice, prohibited by GBL 349 and Executive Law 63(12)."