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Network Associates Loses Battle to Silence Reviewers

Posted by timothy on from the prior-consent dept.

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.'"

23 of 197 comments (clear)

  1. Woohoo!!! by Trolling4Dollars · · Score: 2, Interesting

    Sticking it to "the man" again! Considering the massive problems that we are having in the US with truth in advertising, decent journalism and contractual silencing of critics in other arenas, this is great news! I'm glad to see some logic prevailed. A lot of companies pay lip service to the statement that the "customer is always right". This particular contractual clause was just as tenuous as the stupid "non-compete" clauses that some employers slap down on people. It's ridiculous for any company to think that they can control what an employee does once they have left. Just the same as a company thinking that they can silence unsatisfied customers. Now, if only those anti-SUV ads would start showing up in more places.

    --
    Un-news
  2. Stifling Speech by hackwrench · · Score: 5, Interesting

    "Such clauses censoring speech and criticism chill not only consumers' speech, but also prevent academics, consumer advocates and technology experts alike from openly and freely discussing software products," New York Attorney General Eliot Spitzer

    Make Eliot Spitzer a Supreme Court Justice!

    1. Re:Stifling Speech by Nessak · · Score: 4, Interesting

      Eliot Spitzer is one of the few people in this country which seems to be doing his job right when it comes to justice and protecting consumers. While this is good, most people will remember him for going after Merrill Lynch for all types of charges related to fraud that the federal goverment wanted to overlook. His state office is doing more then federal offices like SEC and even aspects of DOJ. But what has ge gotten in return?

      After Enron & Worldcom went down in flames and congress scrambled to enact some sort of legislation that made it look like they were trying to fix the problems, they included clauses which makes it very hard for states to go after companies in cases like Eliot Spitzer did with Merrill Lynch. Lobbists & Feds knew that if states have active people like Spitzer, it might risk the good system of oversights the federal goverment is becoming so good at.

      So I agree, make Eliot Spitzer a Supreme Court Justice. I'm sure many other reasonable citizens who like their rights being protected would agree. But somehow I don't think Congress would ever elect anyone who has as much guts and insight as Spitzer. He is simply to great of a risk to the people with the real money.

    2. Re:Stifling Speech by jmauro · · Score: 2, Interesting

      While this is good, most people will remember him for going after Merrill Lynch for all types of charges related to fraud that the federal goverment wanted to overlook. His state office is doing more then federal offices like SEC and even aspects of DOJ. But what has ge gotten in return?

      Except he folded like a lawn chair. Remeber. Saying and doing are two different things. He talks the talk, but when it comes down to it he's not doing anything other than small fines on the "evil doers".

  3. Re:Good by Planesdragon · · Score: 2, Interesting

    Why do so many corporations think they can ignore laws they don't like (i.e. the first amendment)

    Corproations aren't the government. Corporations can and do abridge the freedom of speech through contracts all the friggin' time.

    Now, if it's unfair and unreasonable, the offended citizen can go to court and get the corp smacked for all sorts of things like discrimination and fraud and unfair practices--but "first amendement violation" isn't one of them.

  4. Maybe by Bendebecker · · Score: 2, Interesting

    Just maybe one company will now get it through their thick skulls that just because they write something in some end-user license agreement doesn't mean it's legal to then hold a person to it. Sue on!

    --
    There's a growing sense that even if The Future comes,
    most of us won't be able to afford it.
    -- Lemmy
  5. This ruling is interesting by GigsVT · · Score: 5, Interesting

    In a way, this ruling creates a basis to say that an EULA is not a "contract" under contract law.

    It's been firmly established that companies can enter into contracts with other companies and individuals that have the end result of censoring speech. Every nondisclosure agreement is of this nature.

    This ruling is basically saying that the EULA is not a contract in the usual sense, and could provide basis for throwing out a whole lot of EULA clauses that are obnoxious.

    While I think it would take another case to broaden this to the point of really making a difference, if this stands up to appeal, then it does make for interesting precedent. The end result could be reeling back in the EULA, and maybe getting some spyware people thrown in jail (including MS). A very good thing.

    As always, IANAL.

    --
    I've had enough abrasive sigs. Kittens are cute and fuzzy.
    1. Re:This ruling is interesting by Synn · · Score: 2, Interesting

      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.

      A lot EULA's have stupid and asinine clauses in them and they're getting worse every year. I think this ruling sets a precident that there are restrictions to how far EULA's can go in limiting the rights of the customer.

  6. Simple workaround to the stupid EULA line by happyhippy · · Score: 1, Interesting
    You buy the product and let someone else review it. Then they write the review of it. As they didnt buy it they are not bound by the the EULA.

    And what stops someone who bought it telling another that its good/bad so they could review it for you.

  7. Re:Deception by darkonc · · Score: 4, Interesting
    I'm glad to see this kind of EULA thrown out by the courts, but could someone explain why it was a deceptive trade practice?

    What's deceptive about it is that it makes people think that it's illegal to violate the gag clause (e.g. by telling people how bad the software is).

    What's interesting about it is that the rulling either implicitly or explicitly rules that at least that clause of the EULA is unenforcable. If we're lucky, it also implies that the entire click-through license is unenforcable.

    --
    Sometimes boldness is in fashion. Sometimes only the brave will be bold.
  8. Re:Non-registration Version by Anonymous Coward · · Score: 2, Interesting

    Network Associates is clearly full of shit. But what I don't like is that the court is, in its decision, making the false assumption that shrink wrap licenses are valid, enforceable contracts to begin with. And the party the State is going up against, NAI, is not in a position to want to fight against this false assumption. So, the end result is that the courts are able to set a precedent in which shrink wrap licensing is ruled valid & no consumers have a say in it. In fact, they make it seem like the State is acting on behalf of the consumer, when they really are not. Pretty sneaky.

  9. Another reason to kill the UCITA by darkonc · · Score: 2, Interesting
    The news.com article has a related story about the controversy over the ucita.

    Someoone should point out to the New York State Attorney General that if the UCITA gets passed in New York, it could make this rulling moot. The ruling is based on the fact that the gag clause is unenforcable while the UCITA would (among other things) add teeth to the click-through agreement, and might make the gag clause enforcable. At that point, the ruling would disappear in a puff of logic.

    --
    Sometimes boldness is in fashion. Sometimes only the brave will be bold.
  10. Re:Best Quote Ever: by CableModemSniper · · Score: 2, Interesting

    That is elitist, and nuts. Remind me if I ever write a book to put a EULA in claiming that the book can't be reviewed by critics because I don't want people who don't have familiarity with the subject material to review it.

    If reviewers were forced to only review products / services / etc with which they had familiarity why Tom's Hardware would be out of business in a week...Hmm maybe that's not such a bad idea after all...

    *rimshot*

    --
    Why not fork?
  11. Re:Does anyone know what "Draconian" means anymore by infolib · · Score: 3, Interesting

    When I can't comment publicly on a product openly advertised and sold in thousands of copies I certainly think it is excessively rigorous. Assuming the EULA was held valid, a violation could very well be punished with a long, expensive and time-consuming trial and the payment of a non-trivial damage. That, in my eyes, is severe. Please note that I haven't even mentioned the associated chilling effects on free speech...

    --
    Any sufficiently advanced libertarian utopia is indistinguishable from government.
  12. Oracle/M$ Database Benchmarks by ThatDamnMurphyGuy · · Score: 2, Interesting

    Good for them. Maybe this will be the start of giving Oracle and MickeySoft the big finger about not being allowed to post benchmarks of their DB products without permission.

  13. if then by exspecto · · Score: 1, Interesting

    if they punish Network Associates for this, it will be a major step in setting a precedence again stupid shrinkwrap EULAs. and if it really happens, i hope they punish Real for doing something something even worse

  14. No, No, They are... by notque · · Score: 2, Interesting

    At least both sides get posted here at slashdot. The courts are generally terrible at following logic as it adheres to computers, because each individual judge is not the most computer savy.

    They use comparitive laws usually to side with one side or another (that, and corperate pandering), and comparitive laws in other fields don't apply.

    --
    http://use.perl.org
  15. Sellers have no "rights". by tchdab1 · · Score: 2, Interesting

    If you believe that by taking my money in exchange for something (let's put aside for now the fact that you may have actually created it rather than "stolen" it from someone else), you then have the right to control what I do, that I have sold my freedom to you in some way, then you are just plain wrong, woefully misguided. Any "rights" you think you assume by typing up a paragraph of claptrap and gluing it to your "product" is pure invention, sham, and a rip-off: you will only control me to the exent that you can convince the gullible that you've created rights for yourself that must be enforced - you have no natural sellers rights. Any right-thinking, clear headed nerd can plainly see the benefits of personal freedom over slavery to the seller. Let's kill the faux liberatian myth perpetuated by those putting personal greed over personal freedoms.

  16. I didn't sign anything. by macdaddy357 · · Score: 2, Interesting

    If shrinkwrap EULAs are allowed to stand up in court, that would violate free spech, fair use, and the first sale principle. I applaud this decision, but I ignore EULAs anyway. I didn't sign anything, so I didn't agree to anything.

    --
    How ya like dat?
  17. Parent is a disguised goatse link by Anonym0us+Cow+Herd · · Score: 2, Interesting

    The parent post is a goatse link disguised as an msnbc link.

    The link is as follows...

    http://g.msnbc.com/0ADP%0A/sfdgsf.1?http://www.sho rl.com/gabrihafaseme

    Apparently, if you make a link of the form....

    http://g.msnbc.com?http://www.cnn.com

    Then you will get an HTTP 302 Object Moved, redirecting you to the second url, in this example http://www.cnn.com.

    In the above, the http://www.shorl.com/gabrihafaseme link, gives another 302, which then redirects your browser to...

    http://images.org.lu/net-ass.html

    Which returns yet another 302, sending you to...

    http://www.nytimes.com/2003/01/18/business/18SOFT. html?ex=1043557200&en=feead5560491c953&ei=5062&par tner=GOOGLE

    But wait, this can't be right. So somewhere, I've gotten off the track, and don't see how this leads to the goatse link.

    Worse, the goatse link makes an effort to prevent you from closing the browser window.

    --
    The price of freedom is eternal litigation.
  18. How this will impact Microsoft by Lumpish+Scholar · · Score: 2, Interesting
    I guess this means MS will take the "You can't publish benchmarks about .NET" clause out of that EULA.
    I guess it means Microsoft will fight New York even harder than Network Associates did. You've forgotten the first commandment of Redmond: Microsoft is never wrong!

    Expect this decision to be appealed. How many companies will file amicus curiae ("friend of the court") briefs in support of Network Associates? I expect Microsoft (and Oracle, which I believe has similar clauses) will do so.
    --
    Stupid job ads, weird spam, occasional insight at
  19. What if I'm not the customer? by Wolfier · · Score: 2, Interesting

    Let a friend publish the review!

  20. Re:What Does This Mean for Benchmarks? by arkanes · · Score: 2, Interesting

    It's still utter nonsense. Oracle doesn't send over a team of it's best engineers to make sure that my database is configured properly (unless I pay them alot of money), and MS certainly doesn't do it for SQL Server. Therefore, any benchmarks that WERE tuned in such a way have nothing to do with MY use of the product, so are misleading at best. I WANT to see how database X performs out of the box.