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.'"

Comments

Good

[wan23]

Why do so many corporations think they can ignore laws they don't like (i.e. the first amendment) and make up new ones arbitratily (well.. I suppose that happens all the time, doesn't it?)

Re:Good

[mickwd]

Because management training schemes teach managers that "it's easier to ask for forgiveness than it is to ask for permission". They're taught to try it on and to see what they can get away with.

Too many people here think there's just something "evil" about big corporations in general. They're not evil as such. The reason they act as they do is all about making money. They'll try and get away with whatever they can to make money until they're told they can't (the same way certain dictators will try things on until threatened with force).

But then money, as they say, is the root of all evil.

Re:Good

[shreak]

You seem to be saying that just because something isn't "evil" it isn't bad. This is not true. It seems to be the nature of corporations to focus only on makeing money and to try any avenue, no matter how morally bankrupt, to that end. This is "bad". If the system forces this behavior then the system is "bad".

It's in my son's nature to try and get away with stealing cookies out of the cookie jar (he's 6). It's his nature, he's not "evil". He's still punished because it's "bad" behavior.

At some point I'll expect my son to be a "morally aware" person. This means that, even though he's never tried it and been punished for it, he'll know that taking cash from an open and unattended till is wrong. He won't try it just to see if it works. More over, if he does try it, he would be punished at a much higher intensity, because he should have known better.

You seem to be arguing that we shouldn't expect corperations to "know better". I don't agree, we should hold corporations to a higher level of "moral awareness".

=Shreak

License is good warning

[moz25]

If you may only use a product on the basis of not sharing your experiences, then I'd see that as a WARNING that the product probably sucks and doesn't hold up in comparisons without optimal boundary conditions.

It signals a BIG lack of confidence from side of the manufacturer if it believes the quality of its product won't shine through reviews naturally. Sure, there'll be a few bad/dishonest reviews, but the majority of (semi-)reliable ones should be positive. That is... if the manufacturer agrees that its product is indeed excellent. In this case, apparently not ;-)

This case is good news.. I hope it sets a precedent.

Regards,

Moz.

Now that's what I like

[evilviper]

Sounds great. Companies being forced to pay up when they try to impose illegial terms on an EULA.

Look out Microsoft!

.NET benchmark clause

[Anonymous Coward]

Does this mean it's OK to publish non-Microsoft-approved .NET benchmarks now?

If I'm right

[carlmenezes]

Hasn't Microsoft used a similar clause in their .NET license agreement? Can that be challenged too?

Re:This ruling is interesting

[TerryMathews]

Nonono, this ruling goes more towards saying that you can't sign away your basic rights, which in this case would be the right of free speech.

Which, of course is correct as the Constitution and therefore the Bill of Rights takes prescedent over everything else in this country.

Well... It's supposed to anyway.

Re:Non-registration Version

[CableModemSniper]

Well there is an upside to making shrink-wrap licenses valid. It makes the GPL, BSD, etc. stronger.

Another common EULA clause

[yerricde]

You buy the product and let someone else review it. Then they write the review of it.

Another common EULA clause: "You shall not allow a third party to use this Software except under the terms of this License."

Re:What Does This Mean for Benchmarks?

[Fnkmaster]

Oh, I certainly agree with you from a moral and legal perspective that an EULA is meaningless since there are no characteristics of a contract at all.

Rather, the argument that Spitzer used seemed to be that because the contract was included in the box of a mass market software product and had terms that were anathema to the public interest, those terms should be thrown out (i.e. as in with a contract of adherence). He did not seem to make the argument that the EULA wasn't a contract at all and thus was invalid on the face of it (though I agree with you that it should be, and that some decisions have supported our view on this). Rather, this just reinforces that terms odious to the public interest should be thrown out from EULAs, and thus presumably that they are being interpreted as contracts of adherence, at least by this argument in this court.

nda's?

[gimpboy]

Nonono, this ruling goes more towards saying that you can't sign away your basic rights, which in this case would be the right of free speech.

dont you do this when you sign an nondiscolsure agreement (NDA)? say i interview with a company and i have to sign an nda. then i've effectivley signed away my rights to talk about anything they put in the nda--isnt this how it works?

Re:Stifling Speech

[jgalun]

His state office is doing more then federal offices like SEC and even aspects of DOJ. But what has ge gotten in return?

I know this isn't really where you were going, but Spitzer has become extremely well-known and well-respected as a result of his actions against Wall Street and corporations. His plan is to run for New York Governor some day, and this popularity has a real good chance to make that a reality. Because Spitzer has done something very wise, politically-speaking. By going against lying investment banks and NA for preventing reviews, he is aligning himself not against business, but against the excesses of business that hurt the average person.

Spitzer will get the anti-business, far-left votes when he runs for governor, no matter what, because the choice comes down to Democratic Spitzer versus a Republican. But in being for saving capitalism (and protecting the average investor/user) through regulation, rather than attacking capitalism through government fiat, Spitzer can pick up votes from the broad middle that believes in capitalism and a corporate economy, but also believes that corporations sometimes do illegal things that must be prevented.

Having said that Spitzer's line of attack is very wise politically, I don't actually believe that he has made his decision on how to confront corporations based on self-interested political motives. The fact is that Spitzer almost became a corporate lawyer himself. He does not hate corporations, and he does not want to destroy Merrill Lynch. He just wants to make sure they don't lie to investors.

It's like FDR during the New Deal. There were people on the far left who wanted socialism in the US. But FDR believed that it was best to keep capitalism, but to fix its most egregious flaws.

And I think it's silly to write off Spitzer as a potential Supreme Court Justice, some day. If a Democratic president nominated him, it would be very hard for Republicans in Congress to oppose him. Because while Republicans might not love Spitzer, that doesn't give them enough to oppose him. Sure, Larry Kudlow and Forbes magazine would support spiking his nomination, but it would definitely be a losing issue for the Republicans to make, because there are too many swing and Republican voters who would say, "Hey wait, I own stock, I'm glad Spitzer stopped these bastards from lying to me!"

Supreme Court nominations get a huge amount of publicity. It's way too risky for the Republicans, already perceived as the party of the rich, to spike a guy because he protected stock market investors (who now make up a majority of the population) against lying corporations.

How to get rid of EULA's

[spikenerd]

It seems to me that if the courts throw out enough EULA's, the whole concept of EULA's will be weakened or even rejected altogether. So ridiculous as it may seem, if we put insane clauses in the EULA's for our software (firstborn child, etc.), it will eventually help get rid of the whole stupid concept. Am I right? What do you guys (or gals if there are any) think?

Re:Best Quote Ever:

[rgmoore]

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.

Which is patently silly. One of the things that I'm most interested in when reading a review is whether the features listed by the manufacturer are actually easy enough to use that I could have a hope of doing what I want to with the software. If the reviewer can't figure out how to use them with the documentation provided, that's a very interesting thing for me to know. Preventing reviewers from revealing that kind of information is just plain wrong.

Not as Good as it Seems

[PingXao]

At first glance, this seems to be a welcome development. But read the following quote carefully:

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.

Does anyone actually think NY State is going to monitor companies to see if they change their policies? This translates into "corporations who do not donate to the party-in-control in New York State will be singled out for harsher treatment, so start getting out those checkbooks."

In all seriousness (the above was only partly tongue in cheek) though, this decision would have been OK even if no fine was imposed. It would be perfectly acceptable for the decision to basically say "These clauses are legally un-enforcable. Consumers should feel free to ignore them without any fear of legal liability." I would have been fine with that.

Re:Best Quote Ever:

[instarx]

Blame it on the lawyers.

This isn't a typical anti-lawyer rant - there is some logic behind it...

Lawyers do not think about problems and situatons the way we do. Lawyers are advocates. You and I look at all sides of an issue and reach a conclusion based on all the facts, plus and minus. Lawyers, on the other hand, are not _supposed_ to look at all the facts - only the ones that help their side! Lawyers are not required to be objective and are definately not required to present any arguments that do not support their position.

Take a recent example: a very recent study showed that people taking an expensive blood pressure medicine had a 25% higher incidence of heart falure over those taking a cheaper drug, even though the blood pressure in both groups were lowered to the same level. What was the pharmaceutical company's official press release? "Our drug shown to be just as effctive in lowering blood pressure as other more traditional drugs!" Is this true? Yes. Is it the whole story? No. But the lawyers have learned that as long as what they say is technicaly true, it doesn't matter what they don't say. If questioned, their legal argument would be that they made no claim whatsoever about increased longevity. I'm not picking on pharmaceuticals - all industries do it as well as te governement.

The point of this rant is that we all have to be skeptical about _everything_ we read and hear on any topic that involves money (business) or power (politics). I hate it too, but that is just the way it is. Trust nothing, verify everything, think for yourself!

An excellent treatment of how to lie with spin and statistics is the book "Trust Us - We're Experts" An interesting read and highly recommended.