FC: More on New York sues NAI over no-criticism shrinkwrap

From: Declan McCullagh (declanat_private)
Date: Sat Feb 09 2002 - 05:46:39 PST

  • Next message: Declan McCullagh: "FC: Senate weighs complete cloning ban, already approved by House"

    Naturally, as a reporter who sometimes writes product reviews, I am not 
    defending this NAI shrinkwrap agreement, which I find objectionable. 
    Instead I am defending NAI's right to imbed even objectionable-to-reporters 
    terms in their shrinkwrap licenses. I suspect that if NAI continues this 
    practice, mentions of NAI products will fade from the trade press, and 
    individuals and corporations seeking sober critiques of NAI products will 
    turn to competitors' products. If a sufficient number of people react 
    negatively to the NAI shrinkwrap, NAI may have a change of heart. (Of 
    course, perhaps the market does not value reporters' reviews quite as much 
    as reporters believe to be the case...)
    
    I'm speaking at CWRU law school today here in Cleveland, and we're probably 
    going to be talking about this suit. Also see Judge Easterbrook's decision 
    in the 1996 ProCD case:
    >http://www.bitlaw.com/source/cases/copyright/procd.html
    >A buyer may accept by performing
    >the acts the vendor proposes to treat as acceptance. And that is what
    >happened. ProCD proposed a contract that a buyer would accept by
    >using the soft- ware after having an opportunity to read the license
    >at leisure. This Zeidenberg [the buyer] did. He had no choice, because the
    >software splashed the license on the screen and would not let him
    >proceed without indicating acceptance.
    
    Previous Politech message:
    http://www.politechbot.com/p-03124.html
    
    -Declan
    
    ---
    
    Date: Thu, 7 Feb 2002 16:13:06 -0500 (EST)
    From: John R Levine <johnlat_private>
    To: Declan McCullagh <declanat_private>
    Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap
    
     > It seems to me that if the user knowingly agreed to a no-criticism license,
     > then, heck, it's a contract and there's no reason for the NY AG's office to
     > get involved.
    
    Well, maybe.  Take a look at the AG's press release, which contains links
    to the legal filings, at
    http://www.oag.state.ny.us/press/2002/feb/feb07a_02.html
    
    It claims that the no-censorship clause is fraudulent for a variety of
    reasons, including the fact that the license agreement on the box, which
    is what the a user would agree to by opening the package, says nothing
    about the no-criticism language on the disks, so the no-criticism language
    is unenforcable even by NAI's own statements.
    
    According to the AG's filings NAI used the no-censorship clause in 1999 to
    attempt to force Network World magazine to retract a negative review and
    remove it from their web site.  NW, having competent lawyers, told NAI to
    pound sand, but the AG says that since NAI has refused to respond to
    discovery requests, they don't know yet how many other times they've done
    this, nor the intangibles of how many people were deterred from publishing
    reviews due to wrongly believing that the no-censorship language was
    enforcable.
    
    This suit comes from the AG's Internet bureau which is a very savvy bunch
    of people, particularly in areas where cyberspace meets traditional AG
    areas of interest such as consumer protection and business fraud.
    
    Regards,
    John Levine, johnlat_private, Primary Perpetrator of "The Internet for Dummies",
    Information Superhighwayman wanna-be, http://iecc.com/johnl, Sewer Commissioner
    
    ---
    
    From: "D McOwen" <dmcowenat_private>
    To: <declanat_private>
    Subject: RE: New York sues Network Associates over no-criticism shrinkwrap
    Date: Thu, 7 Feb 2002 16:14:06 -0500
    
    What's with State Attorney Generals around the country wasting taxpayers
    money on such daft made up cases? I'm originally from New York and the
    McAfee charges are no where near as nuts as what Georgia did to me but it is
    still outside of normal bounds that Attorney Generals should be looking in
    the best interests of taxpayers and their States citizens. There must really
    be no real criminals out there in the country that AG's have all this time
    and resources available.
    
    Dave McOwen
    
    ---
    
    Date: Thu, 07 Feb 2002 15:31:12 -0600
    To: declanat_private
    From: Brent Stansen <stansenat_private>
    Subject: Re: FC: New York sues Network Associates over no-criticism
       shrinkwrap
    In-Reply-To: <5.1.0.14.0.20020207132635.00a2f990at_private>
    
    Network Associates has been doing this for a long time. The real humor is 
    that this company owns (or owned, they were trying to sell it) PGP. 
    Commerce makes for strange bedfellows.
    
    Btw, even if your market-correcting analysis is correct in general, the 
    speech restrictive license might impose significant costs by forcing many 
    people late in the process of choosing an antivirus software to find 
    another vendor because only late in the process will those consumers 
    realize that the software comes with an unreasonable license.
    
    Lastly, there is the public policy problem of impeding the very market you 
    desire by limiting the free flow of information regarding the software. So 
    far the market has not forced Network Associates to get real, but it has 
    forced them into financial trouble.
    
    ---
    
    Date: Thu, 07 Feb 2002 15:52:18 -0500
    From: "Robin (Roblimo) Miller" <robinat_private>
    To: declanat_private
    Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap
    
    
    >http://www.infoworld.com/articles/op/xml/01/03/05/010305opfoster.xml
    >
    >>...supporters have scoffed at the notion that publishers would use 
    >>shrink-wrap licenses to prohibit public criticism of their products.
    
    
    Not just old news, but ancient. McAfee had that license term back when you 
    and I were both writing for Netly News. Soon after I moved to Andover (now 
    (OSDN) I wrote a rather nasty review of their "McAfee Office" product 
    anyway. It was crappy software, and deserved a downcheck.
    
    
    I have always had the bad habit of reading proprietary software EULAs. 
    Perhaps this is one of the reasons I switched to Linux in 1997/1998 and 
    haven't regretted it for a moment. :)
    
    
    - Robin "Roblimo" Miller
    Editor,
    NewsForge
    Slashdot
    and now Linux.com too...
    
    ---
    
    Date: Thu, 07 Feb 2002 12:45:49 -0800
    From: Chris Winters <chris.wintersat_private>
    Organization: Eastside Journal
    To: declanat_private
    Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap
    
    Based on what you're reporting here, it seems that there might be two 
    problems with
    this contract: 1) it effectively muzzles the press -- all of them, since I 
    don't
    imagine you can install and run, not to say review, the product, without 
    accepting
    the license agreement. If I were a product reviewer and saw that notice, in the
    very least I would have to consult with the legal department first before doing
    anything: that in and of itself might meet the definition of "chilling" 
    speech; as
    such, a reporter would never agree to anything that would control the 
    content of
    their critique; 2) there might be other issues related to surpressing peer 
    review
    or scientific discourse, in the manner Felten (unsuccessfully) tried 
    against the
    DMCA and the recording industry. In both cases, they could be using 
    contract law to
    override fair use rights. I'd be interested in seeing the complaint myself.
    Chris Winters
    
    ---
    
    Date: Thu, 7 Feb 2002 12:48:41 -0800
    From: Eric Murray <ericmat_private>
    To: Declan McCullagh <declanat_private>
    Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap
    Message-ID: <20020207124841.A24997at_private>
    
    On Thu, Feb 07, 2002 at 01:31:41PM -0500, Declan McCullagh wrote:
     > I haven't read the complaint or the license agreement myself, but perhaps
     > this is what the NY AG is upset about:
    
    [non-disparagement non-benchmark clause]
    
     > It seems to me that if the user knowingly agreed to a no-criticism license,
     > then, heck, it's a contract and there's no reason for the NY AG's office to
     > get involved. If you don't like the contract, buy someone else's virus-scan
     > software. If a sufficient number of users are peeved, Network Associates
     > (or someone else) will offer criticism-allowed licenses, and the market
     > will self-correct. But whether or not the agreement was entered into
     > knowingly is the real question here, I suppose...
    
    You know as well as I do that only completist geeks like you and I
    read these things.  The manufacturers make it as difficult as possible
    to read them.. online versions appear in tiny boxes, with tiny print,
    requiring even people like myself with perfect eyesight to squint and
    scroll and wade through legal gibberish more difficult to understand
    than an ISO standard.  Often the click-throughs are set up so you can't
    print them, making me wonder what it means to agree to a contract that
    you can't reasonably get a copy of.
    
    The other problem is that all manufacturers will use this language,
    making "free market" a non-solution... the added payoff from being able
    to stiffle legitimate criticism will more than offset the tiny loss in
    revenue from the few who will stand on principle or even understand that
    they have lost the right to say "this product sucks."
    
    Eric
    
    PS. When I say the free market isn't a solution, that doesn't
    mean I favor a government solution.
    
    ---
    
    Date: Thu, 7 Feb 2002 13:02:48 -0800
    To: declanat_private
    From: j eric townsend <jetat_private>
    Subject: Re: FC: New York sues Network Associates over no-criticism
      shrinkwrap
    Content-Type: text/plain; charset="us-ascii" ; format="flowed"
    X-UIDL: 3e72ea1e73316aac76cedf8d7e141859
    
    >I haven't read the complaint or the license agreement myself, but perhaps 
    >this is what the NY AG is upset about:
    >
    >http://www.infoworld.com/articles/op/xml/01/03/05/010305opfoster.xml
    >>...supporters have scoffed at the notion that publishers would use 
    >>shrink-wrap licenses to prohibit public criticism of their products. 
    >>Nonetheless, our friends at Network Associates seem prepared to do just 
    >>that with their click-wrap license for VirusScan 5.15. "The customer 
    >>shall not disclose the results of any benchmark test to any third party 
    >>without Network Associates' prior written approval," reads one part of 
    >>its EULA, immediately followed by: "The customer will not publish reviews 
    >>of the product without prior consent from Network Associates." Network 
    >>Associates declined to comment on why it includes these terms in the 
    >>VirusScan license...
    >
    >Anyone know if there have been similar lawsuits over this before?
    
    nope, but it was a standard bit of Microsoft shrinkwrapping a few years 
    back.  No published reviews of software without their permission/oversight.
    
    
    -- 
    jetat_private
    408.519.9509
    0x19D3BAF5, 5CCF 2251 5B45 0ABA B91D  AD81 4A60 3401 19D3 BAF5
    
    ---
    
    Date: Thu, 07 Feb 2002 16:45:04 -0500
    Subject: Re: FC: New York sues Network Associates over no-criticism
             shrinkwrap
    From: Richard Forno <rfornoat_private>
    To: <declanat_private>, <politechat_private>
    
    Oracle did something similar when PC Magazine tried to publish competitive
    benchmarking of its products back in 1998, if I remember correctly, but I
    don't htink it went to court.
    
    rf
    
    ---
    
    Date: Thu, 7 Feb 2002 15:10:59 -0800 (PST)
    From: rabbit <rabbitat_private>
    To: declanat_private
    Subject: Re:FC: New York sues Network Associates over no-criticism shrinkwrap
    
    I had a couple of comments regarding your statements about the no-criticism
    license. You question why such licenses are a big deal. I have, I think,
    some answers:
    
    Most shrinkwrap licenses are not available until AFTER the item is
    purchased. They're insides the box, and you don't what it says until
    you open the box which you've already paid for. Since you didn't see
    the license before you bought it - you could not possible have agreed
    to it. So, many people, including (IIRC a CA judge) are of the opinion
    that shrinkwrap licenses are invalid, period, and completely unenforcable.
    
    There are a couple of other issues regarding this particular license.
    Imagine if every single item you bought came with a EULA that prevented
    criticism. There would be no music reviews. No car reviews. No software
    reviews.  No reviews of any sort at all. The only reason software companies
    get away with it is because nobody understands technology, and when
    someone puts forth the rediculous idea that you can't talk about software
    that you've *paid for* nobody seems to care that it's just like buying a car
    and being told that you can't talk about it. How many print magazines
    would completely disappear if they were no longer allowed to review things?
    
    I'm starting to ramble now, so I'll shut up, hoping I've made some sort of
    point...
    ___________________________________________________________________
    Jon Cortmaior (jonat_private)| 0def Design Associates | unix geek
    
    ----
    
    Date: Fri, 8 Feb 2002 02:12:29 -0500
    From: "J. Lasser" <jonat_private>
    To: Declan McCullagh <declanat_private>
    Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap
    Message-ID: <20020208071228.GB27717at_private>
    References: <5.1.0.14.0.20020207132635.00a2f990at_private>
    Mime-Version: 1.0
    Content-Type: multipart/signed; micalg=pgp-md5;
             protocol="application/pgp-signature"; boundary="rS8CxjVDS/+yyDmU"
    Content-Disposition: inline
    In-Reply-To: <5.1.0.14.0.20020207132635.00a2f990at_private>
    User-Agent: Mutt/1.3.27i
    X-UIDL: 47239d8cbd5a76bdf7f3491cf7911067
    
    In the wise words of Declan McCullagh:
    
     > It seems to me that if the user knowingly agreed to a no-criticism license,
     > then, heck, it's a contract and there's no reason for the NY AG's office to
     > get involved. If you don't like the contract, buy someone else's virus-scan
     > software. If a sufficient number of users are peeved, Network Associates
     > (or someone else) will offer criticism-allowed licenses, and the market
     > will self-correct. But whether or not the agreement was entered into
     > knowingly is the real question here, I suppose...
    
    Nope. That's one of the questions. And since the license is on the
    inside of the package, you don't know what the license is before
    shelling out your money. Sure, you can return it to the store, if the
    store will take an opened package. (Back when I worked software retail,
    we'd take things back if the inside envelope wasn't opened. But if the
    license isn't available until the disc is in the drive, that's just too
    bad.)
    
    But the commonly-understood notion of contracts (and, frankly, the only
    one that works on a wide scale with any sort of equity) includes the
    idea of _negotiation_. That is, both parties can sit down and hash
    things out. It's not supposed to be take-it-or-leave-it. This obviously
    doesn't work for software licenses, where one can't negotiate. By my
    understanding (though I'm not a lawyer --- perhaps a real lawyer can
    comment?), contracts without each party having an opportunity to
    negotiate are generally not valid.
    
    
    -- 
    Jon Lasser
    Home: jonat_private            |    Work:jonat_private
    http://www.tux.org/~lasser/    |    http://www.cluestickconsulting.com
    
    ---
    
    
    
    
    -------------------------------------------------------------------------
    POLITECH -- Declan McCullagh's politics and technology mailing list
    You may redistribute this message freely if you include this notice.
    Declan McCullagh's photographs are at http://www.mccullagh.org/
    To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
    This message is archived at http://www.politechbot.com/
    -------------------------------------------------------------------------
    



    This archive was generated by hypermail 2b30 : Sat Feb 09 2002 - 06:29:07 PST