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/ -------------------------------------------------------------------------
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