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.'"
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
Is it safe to even comment on the story?
"Our goal here was to actually increase the amount of information available to customers."--Kent Roberts, executive vice president and general counsel for Network Associates.
Carousel is a lie!
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?)
That would be Network Solutions.
"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!
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.
Advertisement
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.
So... what about us Corporate "Unlimited Licenses" users? How much do they "owe" me/my company?
I'm not a prophet or a stone-age man,
I'm just a mortal with potential of a super man.
You don't think the infringement of speech is draconian?
here
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.
see a Text Widget
I know that a number of vendors require permission before being able to perform and report the results of benchmarking their products especially in the database arena and was wondering if this ruling could me made to apply to them as well?
I don't have a EULA or licence handy but would be quite interested in seeing whether this sets a precedent or is unrelated.
Sounds great. Companies being forced to pay up when they try to impose illegial terms on an EULA.
Look out Microsoft!
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
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
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.
Does this mean it's OK to publish non-Microsoft-approved .NET benchmarks now?
Hasn't Microsoft used a similar clause in their .NET license agreement? Can that be challenged too?
Find a job you like and you will never work a day in your life.
And what stops someone who bought it telling another that its good/bad so they could review it for you.
Does n't Oracle have a similar clause saying you cant produce benchmark results for their database?
It amazes me that anyone thinks they could get away with such a clause.
I could maybe understand if it were some confidential non-disclosure agreement, but it's not it's their off the shelf product/services.
Tell them to start doing more business in the USSR circa 1980 and maybe they could get away with such a stupid clause.
The man who trades freedom for security does not deserve nor will he ever receive either. - Benjamin Franklin
Lets say, as a potential buyer, you search out product reviews to see what product would be best. You find mixed reviews for other products, but, for some reason, there are only great reviews for Network Associates products. Unaware of the fact that Network Associates doesn't allow bad reviews, you buy their product.
I'm not saying that this is what they had in mind (athough, by another post I read, it would seem likely), but according to their EULA, they can do it. Or perhaps I should say could.
I have noticed that too often it seems that IP holders, **especially** copyright holders, tend to think that any demand that they be held to the same standards and expectations that everyone other manufacturer is constitutes a draconian restriction of their "rights." Many of the ones I've debated in other forums act like "my shit doesn't stink because I made this so you can't tell me what to do." They think that because it's "their property" they can restrict how their customers use it no matter what. There is a valid argument in some cases such as licensing source code so you can make a derivative product for your company or agency's needs, but off-the-shell? Who the hell are they to do such things?
Copyright holders better learn pretty quickly that the states can really piss on their parade because unbeknownst to many otherwise legally astute individuals, the states, not the feds, have total sovereignty within their borders. That means your little EULA can be balled up and chucked in the trash by NY, CA, VA, etc. They can make it a class 6 felony punishable by 20 years in a state prison for knowingly distributing "copy-restricted" CDs and what can the copyright holder do? Abide by the law or go to prison, that's what. Right now my state, VA, could pass a law declaring off the shelf licenses null and void and there would be no recourse because VA has the right to invalidate any contract within its borders. It can say, "we don't give a rat's ass who you think you are and what jurisdiction you want to be covered in. You are selling your products in Virginia to a resident of Virginia and that means you are under **our** jurisdiction, not Washington State's!"
Personally I think the system would just be better off if each state would invalidate EULAs and make it a felony to sell copy-restricted media within their borders. The feds cannot stop that, period. They can allow theoretically it to pass from point A to point B, but they cannot give the greenlight to Walmart to seel Britney's latest hacked up CD if the state says Walmart cannot. There is no real market for IP. Either you accept the terms of the copyright holder or you go to hell. That's not a market, that's a socialist-style monopoly. Copyright holders need to respect that, if they did they'd be richer, we'd be freer and more supportive of them IMO.
Click here or a puppy gets stomped!
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.
Those who have closely followed the unfolding of NSI since their early days are no doubt unsurprised by this story. Those, like John Gilmore, having tracked the development o f NSI back to SAIC and DARPA are likely to have an ever-increasing "See, I told you so" conspiracy-theorist standpoint. NSI, in many ways, is the Microsoft of the DNS world. NSI wishes to offer services in exchange for money, yet at the same time, wants to also maintain control of those who are their customers.
It is seemingly paradoxical how companies selling technology offer their products as enabling of opportunity and yet, ultimately want to use that opportunity to create further dependency upon themselves. Slashdot itself, at some point will seek refuge in its popularity and economic viability, thus corrupting its own indealism by way of regulating and moderating its "free" speech claims.
LadyboyLovers.comI guess the courts still aren't as anti-consumer as the slashdot crowd wants to believe, yet.
And aren't there exceptions made in contract law when the parties have "unequal strength", or some such thing?
I've often wondered whether all those strict and draconian terms are enforceable. I didn't realize that claiming enforceability might be regarded as consumer fraud. I like it!
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.
Good result but NA's behaviour shows the level of (US) corporate decision-making is bottom of the barrel. Just as well businesses have so little influence on politics.
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.
While yes, it pretty much explicitly rules that that clause is unenforceable, the latter does not follow. Almost every contract/license/agreement nowadays has a severability clause. What this says is that if any part of the agreement is determined to be unlawful or unenforceable, it doesn't mean the whole agreement is. Just that that clause is "severed" from the rest of the agreement.
-Todd
"The details of my life are quite inconsequential..."
Have the reviewer be someone different than the customer.
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.
Acronym: IANAL
Definition: I have no clue about what I am going to spout off about, but I am going to anyway
With that out of the way, here I go spouting. It seems to me if they invalidate just one clause of the EULA on the basis of deceptive trade practices, it seems to me that it implies the EULA itself is fine. I would think that if they were going to invalidate the entire EULA they'd do it on the basis of it being an unenforceable contract or something along those lines. I have a sneaking suspicion this case has the effect of actually validating click-thru licenses, they just have to be as fair as any other contract. Once again IANAL so I am probably completely wrong.
Why not fork?
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.
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
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."
Will I retire or break 10K?
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?
-- john
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
http://www.canarsiecourier.com/News/2002/0221/Oth
Duncan Watson
The parent post is a Goatse link.
The price of freedom is eternal litigation.
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.
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?
To: PR@nai.com
. html
Subject: About the recent reviewer lawsuit...
http://www.nytimes.com/2003/01/18/business/18SOFT
On behalf of people who hold sacrosanct the 1st Amendment, I'd just like to say HA HA YOU TOTAL LOSERS. Harsh, maybe. But heartfelt. And, if you SERIOUSLY appeal this, as has been rumored, you will LOSE again. And I will send you another email quite similar to this one, except that next time, I'll rub in how you got beaten down twice. Heh. Losers.
The parent post is a goatse link disguised as an msnbc link.
o rl.com/gabrihafaseme
. html?ex=1043557200&en=feead5560491c953&ei=5062&par tner=GOOGLE
The link is as follows...
http://g.msnbc.com/0ADP%0A/sfdgsf.1?http://www.sh
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
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.
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
I can't yet figure out under exactly what conditions, but sometimes the parent post's link gives you a Goatse link.
. html?ex=1043557200&en=feead5560491c953&ei=5062&par tner=GOOGLE
I'm beginning to think it is if you use IE on Windows. But it may be just some random percentage of the time.
If I use netcat from a close by Linux to retrieve...
http://www.shorl.com/gabrihafaseme
then get a nice legit link to the new york times article...
http://www.nytimes.com/2003/01/18/business/18SOFT
If I click it from Mozilla (on Win XP), then I also directly get the NYT article.
The price of freedom is eternal litigation.
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?
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.
The law is fairly logical and supports the notion of conditionality. The courts can rule that A does not imply B without ruling that A is true. I.E. were this is a contract it would be invalid does not prove that if the clause were removed the contract is valid.
People keep hoping for the courts to deal with this. How about giving democracy a chance. We don't need a legal opinion. We need better laws.
Personally, I think it shoudld be explicitely stated in copyright law that the purchaser of a piece of software has the right to install it, run it and make backups of it. And that any agreement signed after the purchase is not valid.
Lawyers being what they are, this would need a little more work, but the basic gist of it should save everyone a lot of effort.
Draconian Baaaaad !
Ruling Gooooood !
-Lars Ulrich
Let a friend publish the review!
Microsoft .NET has the same sort of thingie in their license as far as I remember, and that is one reason the mono project can't make speed comparisons.
.NET virtual machine downloaded or shipped, or otherwise in use.
I think we need MS to pay $0.50 for every
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.
IIRC Microsoft has wording in their EULA that you may not post reviews of their "software" without prior permission.
"Sometimes the truth is stupid." - Lawrence, creator of Prime Intellect
As I recall, Netscape imposed, and for all I know still does impose, a similar ban on benchmarking it's Enterprise web server, and also made some attempt to limit how you reviewed the software. Those benchmarks that were done showed it was a dog (allegedly).
"And the meaning of words; when they cease to function; when will it start worrying you?"
"Never piss off the people who own the printing presses."
If tits were wings it'd be flying around.
Hah, that rules :)
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)."
Quite appropriately named, if you ask me. Or did you really believe that it stood for Network Associates?