Several contracts that I know of have these type of clauses (can not publish
benchmarking/reviews without permission of the company). Microsoft has such
language for products such as SQL. I think Oracle has been known to include
such language etc.
Now, I am not in this district and an appeal is underway. But I and our
attorneys have long felt these clauses violate the first amendment. Let us
hope the vendors will now understand as well...
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
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.
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
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.
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