NY AG Sues Network Associates Over License Terms 386
An Anonymous Coward writes: "Excite is running an article about how New York is suing McAfee over what it considers a restriction of free speech because McAfee does not allow customers from publishing reviews without prior approval from McAfee. From the article: 'In one instance, Network Associates demanded a retraction of an unfavorable review published in the online and print magazine Network World, citing a clause on its Web site that prohibits product reviews without permission, the lawsuit alleged.'"
Oracle next? (Score:4, Interesting)
Re:Oracle next? (Score:4, Insightful)
You can't just slap a comparision of Apache and IIS up somewhere and say 'because of unit frob, Apache performs better' without qualifying your goal of comparing apples to apples ("well, in actuality IIS was running on a 486 with 32MB ram.. but see? Apache was faster, wasn't it?"). Remember one of the first Netcraft IIS vs apache reviews where it was revealed Netcraft tuned the hell outta IIS but ran Apache on a stock RedHat (or some such) install? Didn't even tweak number of children or any such crap?
Vendors are perfectly in their right to oversee benchmarking their products in a comparative fashion to insure equality (even though in some cases that fact still gets lost in the shuffle).
Re:Oracle next? (Score:4, Insightful)
Vendors are perfectly in their right to oversee benchmarking their products in a comparative fashion to insure equality (even though in some cases that fact still gets lost in the shuffle).
if by that you mean they should have the legal authority to deny any benchmark that they don't approve of. That is akin to passing a law that states "you may only print the truth, and I get to decide what that truth is."
A company *does* have the right to set up its own benchmarking study to counter anyone else's that they feel is unfair. As a potential customer I want to be able to read as much about a product as possible. We the public are not stupid, and we should not be treated as such. I (and everyone else) am quite able to decide which benchmarking studies I am going to put the most weight on. Benchmarks that have no configuration data published with them get deep sixed. Benchmarks paid for by the company in question are met with a healthy dose of scepticism. Benchmarks from people/organizations that I have deemed fair (because of past work) I'm going to put more creedence in.
This is no different that real life. I don't need any law or licensing agreement to tell me which newspaper, columnist, TV station, author, etc I should "believe in."
Re:Oracle next? (Score:2)
But then the reviewer gets a reputation for being clueless, people stop referring to his/her opinion, and the reviewer (or the reviewer's employer) suffers. Isn't that the way the supposed free market is supposed to work? Aren't restrictions like NA's more or less intended to subvert the market by removing information from the hands of customers?
The goverment should regulate EULAs (Score:5, Interesting)
Why don't the goverment do the same thing with software EULAs?
Re:The goverment should regulate EULAs (Score:5, Interesting)
I think one thing we all need to focus on are unreasonable terms, such as Microsoft disallowing the usage of Open Source software on
Re:The goverment should regulate EULAs (Score:5, Funny)
Re:The goverment should regulate EULAs (Score:2, Funny)
Re:The goverment should regulate EULAs (Score:2)
Re:The goverment should regulate EULAs (Score:4, Informative)
Re:The goverment should regulate EULAs (Score:2)
Moral of the story:
*Pick your fights carefully*
We don't want to set precedent against ourselves.
Re:The goverment should regulate EULAs (Score:5, Insightful)
Re:The goverment should regulate EULAs (Score:2)
I remember buying a copy of MS Office 97 developer, opening the box and not likeing the license, taking the software back to where I got it from. The manager was not happy, but I just showed him the part on the box saying I could return it, and he had no other choice.
If the box says you can return the software, then under
Re:The goverment should regulate EULAs (Score:2, Insightful)
They've found contracts void for various reasons before, and they'll do so again. Already there are rumblings about how EULAs might not be contracts at all.
There are limits to the right of contract, after all.
Re:The goverment should regulate EULAs (Score:2)
Re:The goverment should regulate EULAs (Score:2)
The Mass-Market License. The license is the agreement that gives you the right to use the software (or other information). A mass-market license is a standard-form, non-negotiable, license.7 For example, consider a mass-marketed word processing program. A company that sold (licenses for) a million copies of a $100 program could not afford to negotiate a separate contract for each. The price would have to rise to reflect the cost of all the bargaining. Instead, companies use standard-form contracts. The UCC8 provides some protections from unfairly one-sided terms in the forms. Additional protections come from consumer-protection laws passed by the Federal and State Governments. Consumer protection laws are confusing because the definition of "consumer" varies. A self-employed professional writer could probably treat Brand X Word Processor as consumer goods under the Federal Magnuson-Moss Warranty Improvement Act9 but not under State law definitions that restrict "consumer goods" to those bought for personal, family or household (but not any form of business) use. The mass-market license concept skips this confusion by treating everyone who buys a product that has a mass-market license in the same way.
[/summary]
This is supposed to keep us from being bound by unfair agreements. It, obviously isn't doing it's job. However, it could be cited in cases involving software contracts, seeing as the UCC has been passed in part, or in whole, by all 50 states.
Re:The goverment should regulate EULAs (Score:5, Insightful)
By the time you see an EULA you already own the software. They withhold your right to use it until you "agree" but that's really extortion. They offer your the right to use the software, but it's not theirs to offer which means they're not offering you anything. There are other issues with it, these are just the two most obvious.
Remember, they're pushing for the UCITA because they need it.
Re:The goverment should regulate EULAs (Score:2, Interesting)
A while back, there was a case of people buying computers, rejecting the Win95orWin98(?) EULA, and then returning it to microsoft for a refund. To my knowledge, they got their money back.
Re:The goverment should regulate EULAs (Score:2)
BARRATRY - The practice of instituting groundless judicial proceedings - a crime in a number of jurisdictions.
The interpretation that even the =-Threatening-= of legal proceedings is correct.
Re:The goverment should regulate EULAs (Score:2)
The legally binding part is untested, however, for the most part; I'd think they'd be found legal. There are few clauses which I think would be(or should be) found illegal.
silly digital 1, laws are for courts, not coprs. (Score:2)
The legally binding part is untested, however, for the most part; I'd think they'd be found legal. There are few clauses which I think would be(or should be) found illegal.
That something is a contract does not make it leagal. All contracts are subject to law, and any that violates the law is null and void. For instance, we could make a contract where I made you my slave for use of my lands and protection. You could sign forms, swear before an alter and jump backwards over a broomstick, but the agreement has no legal force. I could not call the police to catch you if you decided to run away and I'd get spanked for not paying into your social security among other things.
Re:silly digital 1, laws are for courts, not coprs (Score:2)
Re:The goverment should regulate EULAs (Score:5, Insightful)
NO! The government regulation is much worst than any company can do. You can always change the company. You can install FreeBSD and free yourself from Microsoft. You can switch to Symantec if you don't like McAffee. But changing government is a lot harder.
This case is a good example of the system working.
The government already regulates real estate leases in New York. And because of that the housing is notoriously expensive and of low quality. Do you want your milk-man to be obligated to sell you dairy? At the price set by the government? I come from the country, where this was the case, and as a result there was no milk in the stores.
I can go on and on, but I'll be modded up as a trolling flaimbait if I do. So I'll get back on topic. No government regulation, please. Thanks for your time.
Re:The goverment should regulate EULAs (Score:4, Insightful)
I don't agree. Granted I don't live in NYC, but
The government already regulates real estate leases in New York. And because of that the housing is notoriously expensive and of low quality
So if a landlord is allowed to increase rents whenever he wants, discriminates against minories, never fix a broken hot water system all without goverment regulations do you think they won't? Of course they will!
If car manufactores were allowed to build shit/dangerious cars without regulation, would they? Of course they would!
If software compaines were allowed to put whatever they want in the EULA would they? they do already!
For me, BSD is not an alternative, the same way that living under a bridge is not an alternative to a rental property. (nothing against BSD).
Computers have gotten to the point that they are an essentual service, and as such, the unfair conditions the compaines like MS and McAfee put in their EULA's should be regulated.
Re:The goverment should regulate EULAs (Score:2)
Those, where the consumer has a choice:
*software*,food,housing,movie theatres,car manufactureres
Those, where the consumer has no choice:
gas,water,sewer,electicity!($$$),gasoline
When the customer has a choice, often competition breeds excellence; producing a better product. However, when the recipient has no choice, there is no motivation for improvement. Unfortunately, microsoft has been in the "No choice" category for years, letting them do almost anything. When people start to get more viable choices, again, market competition will start to affect them.
Re:The goverment should regulate EULAs (Score:2)
Sorry.
:(
Re:The goverment should regulate EULAs (Score:2)
Why should they? What do they profit from being obnoxious? If there are _other_ landlords willing to rent housing, you bet they won't. Would you, if you were a landlord in a competitive situation?
the unfair conditions the compaines like MS and McAfee put in their EULA's should be regulated
They *are* regulated already! Haven't you heard about UCITA and the "Millenium Copyright (tm)"?The problem with regulations is that, for big corporations, it's far too easy to buy the regulators. As the Romans said, "Quid custodia custodiam" (sp?), or "who regulates the regulators"?
Re:The goverment should regulate EULAs (Score:2)
Never heard of a monopoly, eh? Or you're another one of these assholes that thinks that the market will solve everything, and that antitrust law is just wrong. Sorry, but once a company gets enough market dominance to blackmail distributors/OEMs who want to deal with competition, the free market is out of luck and some other mechanism is required. I happen to think that right now big business is much more dangerous than big government.
Re:The goverment should regulate EULAs (Score:2)
Maybe those other countries sucked because the people in power were murderous tyrants, not because they passed laws.
It's like pointing to China and Russia as examples that prove communism is bad. They were totalitarian regimes and would have been, regardless of the label they used. It's irrelevant and proves nothing. It's like pointing to the US as proof that capitalism is good. (The US isn't capitalist, and it's too small of a sample size to be meaningful.)
Sounds like the Oracle clause (Score:2, Interesting)
Re:Sounds like the Oracle clause (Score:2)
I'm tired of people bitching that their "freedoms" are being impinged upon, because they don't like someone else's rules, when you're playing in their court. If I go into a restaurant without a shirt, and the rules of that restaurant get me booted, they've ruined my right to walk around shirtless, the bastards! If they boot me for standing on the table espousing the virtues of open source, they're restricting my freedom of speech! Damn thought police! And after I get booted out, and I drive home without my glasses, and I get a ticket for that, because the terms of my drivers license state that I must wear glasses while driving. Damn! Now the cops are hampering my facial freedom!
Now, personally I think it's abhorrent that anybody should publish any software license like this, stifling honest reviews. I personally wouldn't sell a product under such a license, and I don't smile upon those who do. Products should stand on their own merit. But it is legal, and constitutional. In many ways, it's no different from a standard NDA for a beta product, really (except in the case of beta products, there is generally a lot more to be concerned about in terms of damage to one's reputation, during the early product stage, and competitive time-to-market issues). You just don't talk about it publicly if you want to be part of the program.
Now, what you *do* have freedom to do, is to not buy products with such provisions, and organize public consumer boycotts of such products, and make it clear to all the competition that this is a major point in making a buying decision, knowing that honest, unrestricted benchmarks can be published. You have the freedom to publish articles in major trade magazines talking about how such restrictions prevent honest comparison of products, and thus such products' benchmarks can't truly be trusted.
Microsofts recent changes in licensings have also drawn a lot of negative publicity (and, I believe, they've eased up on some of the more draconian measures, because of it). In a capitalistic democracy, this is the way things work.
You have lots of freedoms regarding licenses like this. But if you license the use of the package, you don't have he freedom to break the rules of that license.
Frankly, the biggest reason these clauses still exist, is that the public generally isn't aware of them. So publicly suing someone over it probably isn't the smartest thing to do. Word is going to get out, and they're going to look bad, and probably start getting more flak about these license terms. This is a good thing: not because it would move toward correcting anything illegal or unconstitutional, but because it will encourage products to stand on their own objective merit.
Things may be somewhat different legally, in the case of monopolies such as Microsoft, where the public often, in practice, does not have a choice but to use their product, so voting with their wallet isn't an option. I'm not sure if that makes a difference or not. It should.
-me
Should be open and shut (Score:4)
Re:Should be open and shut (Score:2)
Re:Should be open and shut (Score:2, Interesting)
Re:Should be open and shut (Score:2)
Re:Should be open and shut (Score:2)
I guess this bans allowing your web page to be defaced -- after all, by doing that, you are "publishing" "test results" that involve IIS. Webmasters beware...
(Incidentally, no, I don't support hacking like this.)
What about mandatory arbitration clauses? (Score:3, Interesting)
If the state of New York determines that one cannot restrict speech via a EULA, what then happens to the mandatory arbitration and no-class-action-lawsuit clauses found in many contracts? Suing someone in court in a way is speech; you are saying you disagree with someone's viewpoint to the point it is damaging you.
Granted, it would take another court case to prove these one way or another, but I'd be interested to see if these fall next.
Re:What about mandatory arbitration clauses? (Score:2)
I think we need federally mandated arbitration rules. Most companies don't really find uninterested parties for the position of arbitrator.
As far as no-class-action clauses; I think this would be found to be illegal. It is difficult to organize a class action suit against a party when the parties have all agreed to the EULA. If a class-action suit could be arranged against such a EULA, I would *hope* that this clause would be found to be outside their rights.
I only wish that EULA's were forced to play under current contract law in all states.
Mooooooooo.....
Re:What about mandatory arbitration clauses? (Score:2)
good call. I'd hate to see my arbitrator so uninterested he fell asleep!
Re:What about mandatory arbitration clauses? (Score:2)
There are two flaws to your logic:
A quick counter example is a non-disclosure agreement. They are not all null and void because you have a first amendment right.
Re:What about mandatory arbitration clauses? (Score:2)
Not in a retail store, you can't. When I worked at Sybase, my purchasing agent would routinely have things stricken from sales agreements. If the salesguy wouldn't cooperate, she'd come to me and tell me to get a quote from a competitor, and she'd slap them around with that. Worse (for them), they had to agree to Sybase's Vendor Agreement, which said things like the vendor couldn't give anyone better pricing than Sybase, or else they must refund the difference.
Large purchases help a lot in negotiations.
Simple solution for Mcafee (Score:3, Insightful)
Not quite (Score:2, Insightful)
good for NY (Score:2)
Contracts of Adherence and Enforcability (Score:2, Interesting)
Therefore, McAfee has a chance to get quashed on the grounds I stated, as I see it. I don't think the contract terms are reasonable to shut people's mouths. Particularly when it comes to material issues of safety or usability, the public has a right and a simple clause in a contract should not withhold such speech provided it has basis in fact and is independently verifiable.
What happened to Nader, anyway? (Score:2)
You need my permission also (Score:5, Funny)
In tomorrows news (Score:2)
You can not legally sell yourself into slavery... (Score:2, Interesting)
Another interesting question is if just that part of the contract is found invalid in court, does the contract have the provision for invalidating clauses one by one or does the whole contract become invalid?
And if the whole EULA becomes invalid, can one legally violate their license and dissiminate ("pirate") their software as much as he wants?
Usually lawful to copy software to RAM(17 USC 107) (Score:3, Informative)
because in the absence of explicitly stated agreement the copyright holder by default reserves ALL rigts and you can do nothing at all with that piece of software, not even run it :-(
Wrong. 17 USC 117 [cornell.edu] makes it lawful for U.S. residents to load into RAM and back up software that they own a copy of. However, in some jurisdictions [arentfox.com], mere possession of a copy does not necessarily constitute owning a copy; this can happen in a software rental.
In the U.K., loading and backing up software may or may not be protected as "fair dealing".
Free Speach?!? (Score:2, Insightful)
Re:Free Speach?!? (Score:2)
This is very similar. Like the co-worker, you don't have to buy/use the software, just like she didn't have to work at our place of employment. If you don't like the terms, don't use the product or work at that place of employment.
Re:Free Speach?!? (Score:2)
Given that if you point a lawyer at an ISP, many times they'll cave, but lets assume they didn't. If the case was to go to court to get law enforcement to bring the site down, would it happen? Or would the judge/jury say that she has the right of free speech to say what she wants about the company on her own time, and the in enforcing the company's wish to have the sight removed would be a violation of the 1st.
So...if we look at McAffe, if someone writes a review, they can whine all they want, but as the poster said, hopefully if this went to a trial, it would come out that, yes, the EULA said that, but it would be a violation of the 1st to remove the review.
In the end, it all comes down to how legally binding of a contract a EULA can assumed to be. I tend to think that it isn't one at all. You show me proof that I agreed to it? I clicked accept, hell - maybe my cat walked across the keyboard, or I misclicked my mouse cause I was tired. Can't remember the last time I meant to not sign a contract and accidentally wrote my name.
Re:Free Speach?!? (Score:2)
Re:Free Speach?!? (Score:2)
Re:Free Speach?!? (Score:2)
The reason she was allowed to be suspsended, then basically fired becuase she refused to take the website down was because of something called "Free Will". She had the free will to get a new job, just like you have the free will not to use a product with a crappy EULA.
Re:Free Speach?!? (Score:3, Insightful)
As for your 'free will' argument, that's like saying a woman can just quit her job if her boss is sexually harassing her, because she has 'free will'. Of course everyone has free will, but illegal behaviour is still illegal behaviour, and THAT'S what the government is supposed to be for - stopping bullshit like this.
Re:Free Speach?!? (Score:3, Insightful)
You also have legal rights. The EULA must ultimately be enforced by the government - all contracts and copyrights are enforced by the government - so if government does not enforce it then there's no obligation for you to follow it. The government doesn't enforce illegal or unfair contracts, for example.
There have been many famous cases of airtight legal contracts being nullified by the judiciary. Fleetwood Mac's contract with Davis is the classic example. The judge nullified the contract for 4 reasons; one of them was that the compensation Fleetwood Mac received from Davis was "grossly inadequate".
To put it simply: contracts aren't binding unless the government agrees. So it's not just a case of "love it or leave it". That's not the way the legal system works. The legal system has human judges because there is a need to apply human values to the judgements. Sometimes the law is not enough.
Re:Free Speech?!? (Score:2)
Seems simple.
Re:Free Speach?!? (Score:2)
They have absolutely no right to sell you a product and then disable it until you agree to a bunch of stupid rules that they should have mentioned beforehand.
Scary Consquences for Slashdot (Score:4, Insightful)
Well, think about some of the recent "Ask Slashdot" questions:
"Inexpensive Network Servers" (here [slashdot.org])
"Time Tracking Software" (here [slashdot.org])
are two of the more recent ones... now think about what people generally post in response to these questions: discounting trolls and flamebait, many people post with a recommendation for a specific product or advice about which products to stay away from, and they usually then state their reasons (aka "review")...
If someone posts a negative personal experience with a company/product, said company could demand that it be removed due to the clause in their EULA... worse, they could demand the identity of the poster and proceed to sue their ass off.
It's good to finally see some positive action on the technological front from the government (I live in Canada, but all governments are generally the same when it comes to technology...
Slashdot protected (Score:3, Interesting)
There are three things that protect slashdot from this. They have signed no agrement and they are either a common carrier or a news paper.
The first problem is easiest to see, Slashdot does not use and will always be able to avoid $oftware that comes with a license that is not the GPL. No use, no problem no matter how stupid contract law may become.
The other protections are a little less obvious, but a freshman level journalism class and the API stylebook helps to understand the purpose and function of liability laws. Slashdot is mostly a common carrier and can not be blamed for the comunications they facilitate. The phone company is not responsible for crank calls. If you count deleting machine generated posts and blocking other denial of services "editorial control" then Slashdot may be a newspaper. A company that wishes to sue Slashdot for slander must prove that damage intent and malice, and even then the truth is the ultimate shield. One of the goals of free speech is to protect the public by alowing people to reveal damaging truths. Now if Slashdot were to tell a lie, and knew it was a lie, and knew it would cause someone distress, Slashdot would have done something wrong and deserves to be spanked. Proving all of those things is next to impossible.
Re:Slashdot protected (Score:2)
(IANAL) Enh. I'm not so sure about that. My understanding of common carrier status is that once you start editing material, you can't claim to be a common carrier. Since /. editors have copped to downmodding posts and have been accused of deleting comments (a bear pit I know little about and don't intend to fall into), I suspect that their chances of claiming common carrier status are very poor
Status as a newspaper, on the other hand, I could buy into.
How long does an EULA last? (Score:3, Interesting)
Re:How long does an EULA last? (Score:2)
Re:How long does an EULA last? (Score:2)
Here's another good question. What if you're under 18 and you buy some software and click through the EULA.
... and another question along these lines.
What is it that actualy protects software from piracy? Is it the EULA or copyright law? If it is the later, how is it that the GPL works?
If it is because of the EULA, does that mean that a 12 year old can purchase the software, click through the EULA and make/sell copies of the software under the protection of the EULA being void due to his age?
Re:How long does an EULA last? (Score:2)
(IANAL) The latter.
If it is the later, how is it that the GPL works?
As far as I know, the GPL has never been tested in court. But if it were, it would have a much stronger case than a traditional EULA. A EULA attempts to retroactively alter the terms of sale (converting a purchase into a license) and removes your rights, in exchange for nothing at all. (They claim to "give" you the right to run the software, but you already have that right.) On the other hand, the GPL adds rather than removes rights by allowing you to distribute copies. It does place restrictions on how you can exercise that right, but under standard copyright law you can't redistribute it at all, so it's still a net gain for you.
Re:How long does an EULA last? (Score:2)
Re:How long does an EULA last? (Score:2)
Re:How long does an EULA last? (Score:2)
This is why eula's are evil and no lawyer will tell you to ever sign or agree to one.
yet the moron sheep on this planet do every day..
oh and corperations DO NOT have the same eula as you see in the box... I know for a fact that my company recieved a special one that was reviewed by our legal department
Re:How long does an EULA last? (Score:2)
An individual can't sign away his/her rights in a contract.
Just like I can't sign myself into slavery by a contract, I can't sign away my free-speech rights by a contract.
Re:Bullshit (Score:2)
"What do you think an NDA is?"
In a word: Unconstitutional.
Re:How long does an EULA last? (Score:2)
What is a contract? It is a binding agreement between two or more parties, requiring the consent of both parties and the possibility of negotiation, in which rights, priviledges, goods or services are exchanged.
An EULA does not fit the definition. When you buy WindowsXP (as an example) at Fry's (as an example), the US Commercial Code considers you to be the owner of that box. There are some things you cannot do with your possession, and they are enumerated in copyright law. As long as you don't violate copyright law, you can do anything you want with the software, legally. Including actually using it.
Now the first time you try to use it you get a message of some sort that says you have to agree to some longwinded and bogus EULA. This EULA specifies no consideration. It pretends that your use of the software is consideration, but you already have the right to use the software. It pretends that your payment for it their side of the consideration, but you paid for it before you ever saw the EULA. You do not have to agree to anything in order to use the software! It is already your legal right!
Furthermore, your act of clicking a mouse button while a certain glyph is within a specific region of the display does not constitute acceptance of the EULA. The only way you can use the software is to click that button, and since you already have the right to use the software, clicking the button constitutes nothing other than your act of using the software. If you find a EULA that says something on the order of "by using this software you agree to...", simply laugh at loud and ignore it. They cannot impose legally binding terms upon you unilaterally. Remember, you already have the right to use the software.
So what should Microsoft (and NAI, et al) do if they want to enter into a binding agreement with you? Simple. They need to present you with a valid contract before you obtain the right to use the software through some other means. If they don't want their software to be treated as a commercial product to be sold, then they need to stop distributing it to retailers to sell! They need to start *licensing* their software instead. That means you don't get the software until you first agree to the EULA. That means most of the software on the shelves of Fry's would disappear. That means you have to get the software direct from the manufacturer or one of their duly authorized agents.
-----
I am not a lawyer. If you don't follow that EULA unilaterally and illegally imposed upon you, expect to be sued, arrested, and shot if trying to resist that arrest. This is because your current society is not based on the rule of law, but on the rule of man.
Cigarettes next (Score:5, Insightful)
Wired article more detailed (Score:5, Informative)
Imagine if this was used by car companies... (Score:3, Interesting)
Implication: no safety reviews. So if I go out to buy a car, I can't find out how dangerous it might be because the EULA has prevented constructive criticism from being presented to the public. Let me see, this would be bad.
The solution is, of course, not to buy from such a company. Unfortunately, most people don't begin to read EULA's; they're like the fine print at the bottom of car commercials - almost no one ever reads them, nor do I think many humans have the physical ability to read small dark print on dark surfaces in small amounts of time.
This also sort of reminds me of the Dilbert commic where by opening his software, he becoms Bill Gates' towel boy... and the house comes for him. He'd get his lawyer to help, but the lawyer opened the EULA first.
My take: if the contract signee doesn't understand the implications of the contract, they shouldn't be held liable. That would have to be determined in court, but boy would that be good news for Native Americans; if it could be retroative, think of all the land they could win back.
Enough mindless babling.
F-bacher
This is all fine if you are the OWNER (Score:2)
If I never ACCEPT one of these agreements I am not bound by it.
Screensots posted online could for example be used to formulate an opinion on their interface design.
As well, publically accesable Oracle servers (yes there are some) Could be benchmarked.
WITHOUT ACCEPTANCE of the EULA
The deed to my mothers property says on it Negros, nor Asians may EVER reside on the property and if you purchase this property subsequently you agree never to allow that to happen, I live in the North too, Ohio, not exactly Dixie country. It cannot be easily removed from the Deed because of all the legal issues. This is obviously UNENFORCABLE , Because it quite obviously is an affront to Civil Rights, but its there, as a Title attorney sometimes whats on Deed, you would laugh you ass off, THIS is my opinion of 90% of EULA's all horeshit, they can say anything they want like Borlan, let em TRY to enforce it, Can you say RUBY RIDGE meets MCAFEE ?
Let em say whatever they want , Im just looking for one Juicy enough that someone tries to enforce on ME, Ill be a wealty man. Anyone know of any fis trying to enforce ILLEGAL covents in their EULA's ??
Re:This is all fine if you are the OWNER (Score:2)
It is a covenent agreement, I i never agree, I cant be bound by the terms. It does in fact apply to OEM software, as if eveidnce by MS and the OEM refunding in case you DO not accept the EULA.
My point is let them try to enforce a licence on a piece of software I dont onw, It cannot be done, in a million years.
Nor would this prohibit me from making observations of another using the program, by standing behind and watching I have accepted the EULA ? I dont think so.
Now, if anythign in the end, technically, the user I am watching, or the persons computer Im using COULD be liable IF the clause in the EULA was upheld, very doubtfull.
I could as an independent entity OBSERVE and RECORD the results from an Oracle database being benchmarked, I am not liable for it being done however. Now as a Journalist I can publist those observations. Same goes for McAffes stuff. or Any other for that matter. We have Journalists going into brothels and crack houses, they arent charged with drugs or pandering. They are observer, and as such can report ANYTHING they see, If the Goverment couldnt get away with it (National Security is different) Trus me tneither can the companies. Read a EULA again, Implied my ass, it is between a SINGULAR entity, person OR corporation, If you neighbor accepts a EULA on his software, just because you live next to him if you see him using his computer are you bound by the EULA terms ? No way.
Public has the right to be informed about products (Score:3, Informative)
Or an automobile, and you can't post critical comments about it, even if the airbag doesn't work?
Or a fire-alarm, and you can't post critical comments about it even if it doesn't alarm when there's a fire and causes your hosue to burn down?
This is plainly ludicrous. The public has the right to know if a product works, as well as both its pro's and con's.
Software -- *especially* McAfee's anti-virus software -- should be no different. We have the right to know if it actually protects us from viruses, and how well.
The fact that McAfee doesn't want to allow people to post revies of their product begs the question. What's wrong with this product? If its good, worth its salt, why don't they want people posting reviews of it?
The obvious answer is it doesn't work. I haven't used it, but its a safe bet that it doesn't work. In some critical way, its flawed.
And they don't want the public to find out about that.
No, McAfee does not have the right to prevent the public from finding about the flaws of their product. No, individual's can't sell away their free-speech right by a click-through EULA.
Re:Public has the right to be informed about produ (Score:2)
Or an automobile, and you can't post critical comments about it, even if the airbag doesn't work?
Or a fire-alarm, and you can't post critical comments about it even if it doesn't alarm when there's a fire and causes your hosue to burn down?
This is plainly ludicrous. The public has the right to know if a product works, as well as both its pro's and con's.
Software -- *especially* McAfee's anti-virus software -- should be no different. We have the right to know if it actually protects us from viruses, and how well.
As much as I agree with your opinion, your comparisons are utterly ridiculous. This is not a life-threatening case, like your examples. This is much closer to "You can't post critical comments even if you don't like our candy bar." Comparing this to life and death situation only weakens your argument.
Re:Public has the right to be informed about produ (Score:2)
For computerize life, virus protection IS life or death.
Furthermore, in corporations, or even privately, information may be worth thousands of dollars, or countless hours of time. If its destroyed by a virus, that is very serious.
As serious as life or death? No. But its a question of magnitude, not type. This issue is simply a scaled down issue of those. If its wrong in those cases, scaling down shows its wrong in this case, because its different in scale (magnitude), not type.
Re:Public has the right to be informed about produ (Score:2)
This is pretty close to how it is anyway. Many of these disputes are settled out of court and the victims who receive compensation often do so on condition they won't blab. I have signed such a contract in my life (not about fatal drugs however) and I presume it goes on all around me - we just don't know about it.
Rules of Restrictive Covenants (Score:2, Informative)
1. Establish the time period covered, both during and after employment;
2. Identify the "protectable interest" which the document is meant to protect such as "trade secrets," technology, methods, customer lists or other proprietary information;
3. Identify an activity to be restricted, or alternatively, the geographic restriction (or alternatively the customer/route restriction);
4. Set forth the "reasonable" and "necessary" reasons for the covenant (e.g. protecting trade secrets developed at considerable expense which provide the employer with a competitive edge over others in the field);
5. Be signed by both the employee and the employer;
6. Be dated; and
7. Be periodically updated as required by changing circumstances.
But absolutely DO NOT trample first-amendment rights. That's ALWAYS a no-no!
--
Is anyone suprised... (Score:2)
In their defense, the rest of the industry isn't much better.
Try this link, for a start:
http://www.kumite.com/myths/opinion/pamkane.htm
Two words: (Score:2)
I thought that freedom of speech... (Score:2)
Good luck to 'em though - though I shan't say why I wish 'em good luck because then I might be violating the terms of my contract with McAfee.
Mcafeee has been out of my software plan since (Score:2)
They make software that is supposed to PROTECT your system, now the first thing they do is a PR saying they will support it 100% in all of their product (i.e. not finding it) which by definition voids the product's safeness because anyone could *potentially* exploit this since the "feature" is now public knowledge.
I am sure there's already things like this in Windows, in firewalls or antiviral software, but it's *NOT* issued in a PR, it's *NOT* public knowledge and if someone would have to exploit it, he would have to dissasemble everything and do a hell of a tracing job. I wouldn't say anything bad if it was forced on them, but issuing such a PR really pissed me off as a system administrator. It meant that not only if you want to hack a system, target Mcafee's holes, but it made me paranoid enough to switch products. The guys behind the best antivirus software back in the DOS days really went down with the years, first screwing up windows registries, then that PR thing, now this
/rant
Lawyer Q&A (Score:4, Interesting)
Followup legal question (Score:2)
It is hard to see what would be a legal replacement for this particular clause (if the original one is illegal), so imagine an alternative scenario.
Say my employment contract had a confidentiality clause that was so restrictive it was overturned in court as illegal. Could my employer replace it with a less restrictive clause, or would I become free to distribute their trade secrets because the only thing that had been preventing me was the voided clause?
Re:Followup legal question (Score:2)
So if the McAfee contract clause is illegal everyone using their software (within the juristiction of the court) is no longer legally entitled to use it, and McAfee owes them all their money back?
In my employment example, my employment contract is totally negated, and I can legally distribute my employer's trade secrets but have to give them all my salary back?
I guess these are examples where the Judge would use their discretion to impose a modified replacement contract.
The First Rule of McAffee ... (Score:2, Funny)
The second rule of McAffee is
don't talk about McAffee.
;)
Libel/Defamation laws should override EULA's (Score:3, Insightful)
In the UK, the burden of proof is on the defendant to prove that what they said is right, but in other countries, the burden of proof is on the complainant to prove that what was said was a lie.
Way around this? (Score:4, Insightful)
Couldn't you get around this by :
1. Getting a friend to purchase and install product.
2. Sit next to friend and watch them use product.
3. Write scathing review.
Anyone?
Full Text Available (Score:4, Informative)
How about a "positive" review instead? (Score:4, Funny)
"I use the latest version of McAfee Anti-virus and let me tells you that product is frickin' awesome!!!! It hardly ever catches the latest viruses, in fact it has a 100% success rate of never catching the most current crop of viruses.
In addition to all the other benefits this incredible product supplies, it also successfully connects to the Internet every morning and sends handy information about my surfing habits and computer configuration back to Network Associates, all without me having to push a single button! Go out and buy McAfee Anti-Virus now, you won't be sorry."
Re:Wow, lets just throw the Constitution out... (Score:2)
Look at it this way: public schools and the workplace have been deemed by the US Supreme Court to be 'limited forums for the expression of free speech'. This isn't something that's likely to change anytime soon. I think if the issue made it up there, many unfavorable EULA clauses would be found to be legal. You aren't being forced to purchase the software; you are coming to them to get it. You voluntarily choose to agree to the EULA, or you voluntarily choose not to use the software. I think licenses are important, but there is too much room for abuse.
Re:SSSCA (Score:2)
Reading the full text of it makes me wanna shoot a congressmen.
(Im kidding if you didn't notice)
Unfortunately, you are correct.
If the SSSCA is passed, I'll probably go for my citizenship in Australia. My mom was born there!
Re:What about benchmarks of DB software? (Score:5, Interesting)
Any reason why a publisher can't just 'clean room' the review? One person (the 'assessor') buys the package themselves and agrees to the EULA. The assessor then tells another person (the 'reviewer') what he thought of the package. The reviewer then writes the review and publishes it, having never used the software, and more importantly, never agreed (or disagreed) with any EULA.
Bit tedious and pedantic, but I'm assuming any court would view the 'no bad reviews' clause even stupider.
Re:Penalties for conduct (Score:2)
And frankly, I think anyone with the attitude it takes to try and strike down the 1st amendment in a EULA probably has a portrait of Hitler somewhere in their office.
Re:Is this applicable? (Score:2)