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

Woohoo!!!

[Trolling4Dollars]

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.

So...

[Anonymous Coward]

Is it safe to even comment on the story?

Re:So...

[NoMoreNicksLeft]

Hardly. You entered into an implied non-verbal contract with them, merely by being born on planet earth. As such, your critical review is in direct violation of the EILA (Earth Inhabitant Licensing Agreement).

And if you think this is silly, listen to some TV executives on how they feel about commercial-skipping technology...

Best Quote Ever:

[Saint Aardvark]

"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.

Re:Best Quote Ever:

[Skater]

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

Re:Best Quote Ever:

[CableModemSniper]

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*

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.

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.

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

[Planesdragon]

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.

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

[civilizedINTENSITY]

But is it 1st Amendment?

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."

http://www.canarsiecourier.com/News/2002/0221/Othe rNews/018.html
Spitzer's suit also alleges that the clauses infringe upon consumers' and the media's freedom of speech and fair use rights under copyright law. It contends that by informing software users that the speech restrictions are justified under existing "rules and regulations" - even though no such rules or regulations really exist -- the company also committed an unlawful deceptive practice.

What New York Law Says

But are these clauses really illegal under New York State law? And does the attorney general have the right to bring a civil action for money damages and an injunction because of it? Here's where close attention to the laws is vital.

Pertinent provisions of the laws of the State of New York give the state's attorney general broad powers to bring suit for what it perceives to be illegal or fraudulent business practices.

For example, Section 63(12) of New York's Executive Law specifically allows the attorney general to bring suit regarding cases of "persistent fraud or illegality in the carrying on, conducting or transaction of business". The statute says, "[t]he term 'persistent fraud' or 'illegality'... shall include continuance or carrying on of any fraudulent or illegal act or conduct ". In fact, under the section, the term "fraud" includes "any... deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual clauses" and does not necessarily require wrongful intent.

In the Network Associatescase, the claimed fraudulent conduct is that the Censorship Clause refers to allegedly non-existent rules and regulations. Even more so because the actual license agreement inside the box mentions nothing about this clause and otherwise makes clear that the four corners of the license agreement represent the entire agreement with the purchaser. Such conduct is claimed to be "illegal" because it is an "unenforceable covenant, invalid as against public policy," according to the complaint.

In other words, according to the New York attorney general, Network Associates' warning was fraudulent not only because it wrongly referred to non-existent rules and regulations, but also because the plain terms of the license agreement would have excluded such a clause, found only on the box, label or download page of the software, from even being enforceable and because the restriction violated public policy by creating a "chilling effect" on legally permitted speech that would be beneficial to the consumer.

Interestingly, under cited case law interpreting this statutory section, proof that Network Associates actually intended to defraud or mislead isn't necessary. Yet, according to the attorney general, Network Associates has shown this intent anyway.

In its legal memorandum, the attorney general said that Network Associates tried to use the Censorship Clause to kill an unfavorable review of its "Gauntlet" firewall softwareby Network World magazine, allegedly invoking the clause to threaten the magazine with legal action if the review was not taken down from the magazine's web site and otherwise retracted.

Under the terms of this New York State law provision, when the attorney general finds such conduct, it has the right to seek broad relief, including financial damages and injunctions to stop the practice from continuing.

Similarly, Section 349 of New York's General Business Law makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this State" and allows the attorney general to file suit for an injunction and for restitution, that is, the return of money wrongfully given.

As set forth in the attorney general's memorandum, the disputed Network Associates clauses "unfairly chill the consumer's enthusiasm to enforce" their rights.

What is particularly alarming about this statute, from the point of view of a defendant like Network Associates, is that it also authorizes a private right of action, allowing any individual harmed by the practice to sue for as much as $1,000 and recovery of counsel fees based upon deceptive practices prohibited by the law. So, if New York state were to be successful on this claim, a multitude of individual suits might be in the offing, perhaps even a class action.

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

Stifling Speech

[hackwrench]

"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!

Re:Stifling Speech

[Nessak]

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.

Re:Stifling Speech

[jmauro]

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".

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.

Non-registration Version

[Amsterdam Vallon]

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.

Re:Non-registration Version

[Anonymous Coward]

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.

Re:Non-registration Version

[CableModemSniper]

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

Re:I hate Network Associates

[GigsVT]

Except that Network Solutions is a completely different company. Network Associates makes anti-virus software.

On a related note, I guess this means MS will take the "You can't publish benchmarks about .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.

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.

Re:50 cents

[martissimo]

nada... seriously the state just asked for a fine of 50 cents per license, it's going to New York, not you

Maybe

[Bendebecker]

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!

This ruling is interesting

[GigsVT]

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.

Re:This ruling is interesting

[timmyf2371]

But does the ruling seem to say that a EULA is not a contract?

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

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:This ruling is interesting

[Synn]

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.

If I'm right

[carlmenezes]

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

Re:If I'm right

[jc42]

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

Yes, of course. But it'll take you ten years and a few million dollars in court costs. And in the end, the court will "punish" Microsoft by ordering them to send copies of the EOLA to the Technical Committee that was set up by the DoJ's "punishment". After doing that, of course, nobody will be able to use the EULA as evidence against Microsoft in any further court actions.

Re:Deception

[darkonc]

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.

Another reason to kill the UCITA

[darkonc]

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.

Re:Does anyone know what "Draconian" means anymore

[infolib]

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...

Oracle/M$ Database Benchmarks

[ThatDamnMurphyGuy]

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.

Re:50 cents

[CableModemSniper]

You just bankrupted NA. Congratulations!

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?

No, No, They are...

[notque]

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.

Re:Deception

[civilizedINTENSITY]

What's deceptive about it is that it makes people think that it's illegal to violate the gag clause

http://www.canarsiecourier.com/News/2002/0221/Othe rNews/018.html

The Attorney General's suit alleges that such clauses -- legally known as "restrictive covenants" -- are illegal, and that they harm the public by censoring discussions of a product's flaws and defects.

Sellers have no "rights".

[tchdab1]

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.

I didn't sign anything.

[macdaddy357]

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.

Parent is a disguised goatse link

[Anonym0us Cow Herd]

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.

How this will impact Microsoft

[Lumpish Scholar]

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.

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:Tired of New York times?

[Anonym0us Cow Herd]

It is the user agent string. If your browser sends a certian user-agent string when you click the parent post's link you will get a goatse link instead of link to the new york times article.

Type the following....

netcat images.org.lu 80
GET http://images.org.lu/net-ass.html HTTP/1.0
User-Agent: Mozilla/4.0 (compatible; MSIE 6.0; Windows NT 5.1)

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.

What if I'm not the customer?

[Wolfier]

Let a friend publish the review!

Re:What Does This Mean for Benchmarks?

[arkanes]

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.

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.

"Unenforceable, illegal and deceptive" EULA

[Animats]

This makes it clear to companies that there's a real risk to putting improper threats in EULAs. Usually, such threats aren't enforced or enforceable; they're just there to terrify customers. (The legal term is "in terrorium") But Network Associates actually tried to enforce such a term, which is blatently illegal. Read the Attorney General's press release. From their memorandum of law:

• "Software maker Network Associates, Inc. ("Network Associates" or "the company") misleads its consumers by placing written restrictions on their software purchases. Namely, the company tells consumers, either in form License Agreements or on the face of the software diskette, that:
  • "Rules and regulations" prohibit consumers from "disclos[ing] the results of any benchmark test" (i.e., product test), absent "written approval" and
  • Those "rules and regulations" also prohibit them publish[ing] review of this product," absent "prior consent." (Hereinafter, the "Censorship Clause.")

  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)."