Network Associates Loses Battle to Silence Reviewers 200
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.'"
Woohoo!!! (Score:2, Interesting)
So... (Score:5, Funny)
Re:So... (Score:2)
I don't run their software, so I never accepted their EULA, so yes.
Re:So... (Score:5, Funny)
And if you think this is silly, listen to some TV executives on how they feel about commercial-skipping technology...
Best Quote Ever: (Score:5, Funny)
Re:Best Quote Ever: (Score:2, Informative)
It seemed kind of lame, but I can at least see where they were coming from.
--RJ
Re:Best Quote Ever: (Score:2, Interesting)
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: (Score:3, Insightful)
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: (Score:2)
I am getting so tired of spin, lies and Orwellian doublespeak. Apparently the truth is an endangered species today. Or maybe I should be offended that corporations believe that we are stupid or incapable of critical thought.
Re:Best Quote Ever: (Score:2, Insightful)
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.
Parent is a disguised goatse link (Score:2, Interesting)
The link is as follows...
http://g.msnbc.com/0ADP%0A/sfdgsf.1?http://www.sh
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
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.
Re:Tired of New York times? (Score:5, Informative)
Type the following....
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.
Re:Tired of New York times? (Score:2)
Re:Tired of New York times? (Score:2)
Quite appropriately named, if you ask me. Or did you really believe that it stood for Network Associates?
Good (Score:3, Insightful)
Re:Good (Score:2, Interesting)
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 (Score:5, Informative)
What New York Law Says [gigalaw.com]
Re:Good (Score:5, Insightful)
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 (Score:3, Insightful)
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 (Score:5, Interesting)
Make Eliot Spitzer a Supreme Court Justice!
Re:Stifling Speech (Score:5, Interesting)
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 (Score:3, Interesting)
Except he folded like a lawn chair. [salon.com] 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 (Score:5, Insightful)
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 (Score:5, Informative)
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 (Score:2, Interesting)
Re:Non-registration Version (Score:2, Insightful)
Well there is an upside to making shrink-wrap licenses valid. It makes the GPL, BSD, etc. stronger.
Re:Non-registration Version (Score:2)
You can download (or buy, or be given) a GPLed program, and use it in any way you want, without the GPL being involved at all. You can even sell your copy if you wish.
But, if you want to take the source code (which is available because the program is GPLed) then you can do as much with it as copyright law allows. Read it. You can't use it, you can't base your program on it. Normally you'd have to write to the developer asking for permission, but here they've anticipated your letter and they're saying "If what you want to do is use the source, and you're willing to do so in these ways and with these limitations, go for it, accept this contract and go for it."
An EULA is supposed to affect how you use the program, and if you're even allowed to use it. The GPL isn't relevant to that at all, it's only a way around you having to write to the developers asking for permission to use their source code in a new project. And then, only if you want to release it.
We could abolish EULAs (I wish) and it wouldn't impact the GPL at all.
Re:Non-registration Version (Score:2)
Copyright law explicitly gives the lawful owner of a copy of software the right to use and make one backup copy without the permission of the author.
typical EULA is a requirement to surrender certain rights in exchange for the software removing a block that prevents your legitimate use of a piece of software.
It is a more obtuse than that. The software company is alleging that you did not buy the software, only the license to use it. That is why there is a little fine-print box on every software package stating "You must agree...". Otherwise, it would be an outright purchase.
Judge Easterman, the judge who upheld EULAs in ProCd, noted that it is possible to lawfully acquire the software without being bound by the EULA. The example he gave was "finding it on the street". Since it is abondened property, you are now the lawful owner of the software and are not bound by the EULA.
Also, there is a clause buried in the EULA that says you do not own the media or the software. The software company does. You only purchased the license to use the software.
Another example: today, I received an MSN CD in the mail. The next time I boot into windows, I will have to see if there is an EULA with a similar clause. If so, Microsoft is implicitly admitting that the clause is a legal fiction. The courts have already ruled that anything that is arrives in my mailbox addressed to me is my legal property. I did not enter into a previous agreement with the sender since I never requested it. The copy of software is mine with no strings attached. I can violate any or all of the clauses as long as I do not violate copyright law itself.
Re:Non-registration Version (Score:2)
I would have to. Unfortunately, Judge Easterman did not agree. He placed great weight on the "Refund Clause" in the EULA. It was never under judical notice that it is nearly impossible to get the refund since the defendant never tried. Another problem the defendant had was that he purchased the same software with the same license the previous year.
The good news is that not all courts accept Judge Easterman's logic.
This means that Microsoft have forgiven me for pirating it, and allowed me some use of the software.
Interesting spin. The next time I am bored, I will read an EULA to see if they stuck in some clause to cover this.
Re:Non-registration Version (Score:2)
Thanks for the link. I was doing it from memory so the "one" probably came from me muddling with some EULAs which give permission for only one.
As for the backups, it limits it "copies" for two purposes: copies "created as an essential step in the utilization of the computer program" (117(a)(1)) and copies which are "for archival purposes only" (117(a)(2)) aka backups.
I'm looking at the boxes of three pieces of software. . . right now - there is nothing on them that says this.
If there is no lable on the box, it is definately a purchase. It was on the software in the ProcCD case. The ProcCD case would probably have had a different outcome if it hadn't been. Out of couriousity, I dug out my old Windows software and checked them. Everything from Microsoft has them. None of the games do. The non-microsoft apps are spotty. Some do, some don't.
Going by Judge Easterman's opinion, I would say that you are not bound by any EULA that that comes with software without the label.
Even MD, which passed UCITA, requires the label on any mass-marketed software in order to consider the EULA a binding contract.
Conditionality (Score:2)
50 cents (Score:2, Funny)
Re:50 cents (Score:3, Informative)
Re:50 cents (Score:2)
Drats. I was just filling out a stamped self-address envelope and sticking it in a stamped envelope to claim my $.50
-
Re:50 cents (Score:2)
One unlimited license = $0.50?
Re:50 cents (Score:2)
Most likely, but when you factor in the number of retail licenses they've sold within New York State, the fine is still going to head into a very annoying number in the millions.
Really, the violation here was per license, not per user... because nobody was ever really restricted from reviewing Network Associates products. The violation was that NA falsely claimed that you couldn't in the license... which likely fooled a lot of people into thinking they couldn't.
Re:50 cents (Score:2, Funny)
Registration-less link (Score:1, Informative)
License is good warning (Score:5, Insightful)
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:License is good warning (Score:2)
How many tiny little clauses are there that make it easy for big companies to sue. I'm still waiting to see who slips "and will forthwith donate one's firstborn child, upon reaching the age of two years, as a sacri^h^h^h^h token of good esteem to the company."
Re:License is good warning (Score:2)
I really doubt they actually care of custommer base writing reviews - that has very little credibility. Norton, on the other hand, saying NA is no good is something to think about (for some).
Re:License is good warning (Score:2)
What Does This Mean for Benchmarks? (Score:2)
I don't have a EULA or licence handy but would be quite interested in seeing whether this sets a precedent or is unrelated.
Re:What Does This Mean for Benchmarks? (Score:2)
My guess is that this ruling will lead to the conclusion that a shrinkwrap EULA can not contain restrictions on the right to commercial or academic speech about the product. I should hope that is the case - there are legal reasons (in the USA) that such "Contracts of Adhesion" (I believe that's what they are generally called) can not be expected to be read in detail by the person accepting the contract, and clauses like this are generally not enforceable. This should come as no surprise except to the imbeciles who've been pushing EULAs as some sort of magic legal protection for years now.
Of course, signed contracts between two parties are different beasts entirely. If you sign a contract for a $100,000 license for a database product, or some other large enterprise software system, they can probably put all sorts of clauses of this sort in there.
Re:What Does This Mean for Benchmarks? (Score:2)
When I purchase boxed software, the exchange has the basic properties of a sale. I don't go into CompUSA and license software--I buy it. By purhasing the software in such a manner, there are certain things that I feel I'm implicitly allowed to do. Like, say, installing and running the software. The text of the EULA is not required in any way for me to be allowed to do this. Furthermore, I would hold that "agreeing" to a shrinkwrap license by performing some action which would be reasonably expected to be performed after purchasing the software (again, opening the box, installing it, and running it) is not in fact agreement, but just clicking on pretty widgets (or shredding the pretty shrinkwrap).
Just my two cents.
Re:What Does This Mean for Benchmarks? (Score:5, Insightful)
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.
Re:What Does This Mean for Benchmarks? (Score:2)
It is, however, true that terms in a contract that are generally opposed to the public interest are voidable in court _if_ they occur in a contract of adherence (a contract not individually negotiated, or a "standardized" contract). People generally assume that they retain their Constitutionally-guaranteed Free Speech rights, within the judicially established limits of this country, and thus this forms part of the general public interest. Contracts of adherence aren't apparently considered sufficient basis to make such a right go away. That's the argument that's being made here - based on my quick scan of the original case document from the New York State Attorney General's office, though I did not read the court's final decision, so I'm not sure if they bought that exact logic. IANAL though. So yes, the New York Times is oversimplifying.
Re:What Does This Mean for Benchmarks? (Score:2)
Actually, courts can void clauses of any contract on those grounds. The NDA clause in other contracts is limited to trade secrets. Something the courts also feel is in the public interest. The clause in the EULA only acts to prevent the consumer from getting objective information about their potential purchases.
Re:What Does This Mean for Benchmarks? (Score:1)
What could possibly cause the same restrictions on anti-virus software? Could it be that difficult to configure? Or is the user above correct in inferring the software must be really bad? I suspect the reason the clause is in the EULA is that some lawyer thought they could get away with it and tried it. Now the court says no, and the vendor makes a pout and removes it. That means the laws work. Yay.
Re:What Does This Mean for Benchmarks? (Score:3, Interesting)
Re:What Does This Mean for Benchmarks? (Score:1)
Now someone with balls should extend this precedent by posting on the internet and in print a complete review of all the different databases: Oracle, Dbase2, Sql Server, Sybase, etc using their real names. Attach a copy of this case to the website and just prepare for the wolves to close in. My bet is the wolves back off and get scared.
The result would be a much more review friendly world, where we could start posting reviews on any products we want without fear of lawsuit. Not just databases but applications servers and much more! What a world this could be!
Now that's what I like (Score:2, Insightful)
Look out Microsoft!
Maybe (Score:2, Interesting)
This ruling is interesting (Score:5, Interesting)
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.
question: meeting of minds (Score:1)
And aren't there exceptions made in contract law when the parties have "unequal strength", or some such thing?
I've often wondered whether all those strict and draconian terms are enforceable. I didn't realize that claiming enforceability might be regarded as consumer fraud. I like it!
Re:question: meeting of minds (Score:2)
That is one of my objections to EULAs. Even my lawyer, who lives in MD which passed UCITA, doesn't read them because "there are too many of them". Although he would never sign a contract without reading it.
I suspect that they are designed to discourge people from actually reading them. Don't put a printered version in package. Disable the ability to print it. Put a multipage contract in a little scroll box that only shows 6 lines at a time. Use monotype and heavy leagelese.
And aren't there exceptions made in contract law when the parties have "unequal strength", or some such thing?
There are; but, I am not sure what the test for it is. All the cases that challenged them on "material modification of the original contract" grounds. The defendant in the ProCD case unsuccessfully argued that the purchase was the original contract. In Stepsaver, they successfully argued that the Purchase Order was the original contract. In a CA case, they are arguing that there is not contract because they did not run the software or click on "I Agree".
Re:This ruling is interesting (Score:3, Informative)
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 (Score:3, Interesting)
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.
Re:This ruling is interesting (Score:2)
Re:This ruling is interesting (Score:2, Insightful)
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.
nda's? (Score:2, Insightful)
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?
And now a review of Network Associates.... (Score:1, Troll)
That being said, I can't believe their arrogance. Lucky I'm not a judge sitting on that case.
.NET benchmark clause (Score:1, Insightful)
If I'm right (Score:4, Insightful)
Re:If I'm right (Score:3, Funny)
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.
Simple workaround to the stupid EULA line (Score:2, Interesting)
And what stops someone who bought it telling another that its good/bad so they could review it for you.
Re:Simple workaround to the stupid EULA line (Score:2)
All in theory, IANAL.
Another common EULA clause (Score:2, Insightful)
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:Simple workaround to the stupid EULA line (Score:2)
How about Oracle? (Score:1)
What a victory (Score:2)
I could maybe understand if it were some confidential non-disclosure agreement, but it's not it's their off the shelf product/services.
Tell them to start doing more business in the USSR circa 1980 and maybe they could get away with such a stupid clause.
IP should not be a free-for-all (Score:1, Troll)
Copyright holders better learn pretty quickly that the states can really piss on their parade because unbeknownst to many otherwise legally astute individuals, the states, not the feds, have total sovereignty within their borders. That means your little EULA can be balled up and chucked in the trash by NY, CA, VA, etc. They can make it a class 6 felony punishable by 20 years in a state prison for knowingly distributing "copy-restricted" CDs and what can the copyright holder do? Abide by the law or go to prison, that's what. Right now my state, VA, could pass a law declaring off the shelf licenses null and void and there would be no recourse because VA has the right to invalidate any contract within its borders. It can say, "we don't give a rat's ass who you think you are and what jurisdiction you want to be covered in. You are selling your products in Virginia to a resident of Virginia and that means you are under **our** jurisdiction, not Washington State's!"
Personally I think the system would just be better off if each state would invalidate EULAs and make it a felony to sell copy-restricted media within their borders. The feds cannot stop that, period. They can allow theoretically it to pass from point A to point B, but they cannot give the greenlight to Walmart to seel Britney's latest hacked up CD if the state says Walmart cannot. There is no real market for IP. Either you accept the terms of the copyright holder or you go to hell. That's not a market, that's a socialist-style monopoly. Copyright holders need to respect that, if they did they'd be richer, we'd be freer and more supportive of them IMO.
Seemingly Paradoxical (Score:1, Offtopic)
Those who have closely followed the unfolding of NSI since their early days are no doubt unsurprised by this story. Those, like John Gilmore, having tracked the development o f NSI back to SAIC and DARPA are likely to have an ever-increasing "See, I told you so" conspiracy-theorist standpoint. NSI, in many ways, is the Microsoft of the DNS world. NSI wishes to offer services in exchange for money, yet at the same time, wants to also maintain control of those who are their customers.
It is seemingly paradoxical how companies selling technology offer their products as enabling of opportunity and yet, ultimately want to use that opportunity to create further dependency upon themselves. Slashdot itself, at some point will seek refuge in its popularity and economic viability, thus corrupting its own indealism by way of regulating and moderating its "free" speech claims.
LadyboyLovers.com [ladyboylovers.com]Re:Seemingly Paradoxical (Score:2)
lower courts still like the little man (Score:1)
No, No, They are... (Score:2, Interesting)
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.
Another reason to kill the UCITA (Score:3, Interesting)
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:Another reason to kill the UCITA (Score:2)
While it's quite possible the ruling may dissapear in a puff, I don't quite think it would be a puff of logic.
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Re:Another reason to kill the UCITA (Score:2)
If you think of legalese as a natural-language programming language, and the judges as a wet-ware execution processor (with one or two bits loose, here and there) then the legal system gets pretty easy to deal with. I was reasonably successful using that model up to the court of appeal level.
Like learning any new language style, it takes time to get up to speed, but once you do, it's no more difficult to understand than Java (just a lot more verbose).
Re:Another reason to kill the UCITA (Score:2)
Yeah, chuckle. I was just making a joke about legal "logic". The same way a lawyer would find 255+1=0 and 32767+2=-32767 to be rather peculiar "logic"
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Re:Another reason to kill the UCITA (Score:2)
- gh as in enough
- o as in women
- ti as in initiative
Given these legal precedents, it's clear that ghoti is pronounced the same as fish.The prosecution rests (er, um, nanosleep(2)s).
Oracle/M$ Database Benchmarks (Score:2, Interesting)
I didn't sign anything. (Score:3, Interesting)
My email to Network Associates (Score:2)
Subject: About the recent reviewer lawsuit...
http://www.nytimes.com/2003/01/18/business/18SOFT
On behalf of people who hold sacrosanct the 1st Amendment, I'd just like to say HA HA YOU TOTAL LOSERS. Harsh, maybe. But heartfelt. And, if you SERIOUSLY appeal this, as has been rumored, you will LOSE again. And I will send you another email quite similar to this one, except that next time, I'll rub in how you got beaten down twice. Heh. Losers.
How to get rid of EULA's (Score:2, Insightful)
What if I'm not the customer? (Score:3, Interesting)
Not as Good as it Seems (Score:2, Insightful)
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.
Banning comparision (Score:2)
"Unenforceable, illegal and deceptive" EULA (Score:3, Informative)
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)."
Re:I hate Network Associates (Score:2)
Re:I hate Network Associates (Score:5, Informative)
On a related note, I guess this means MS will take the "You can't publish benchmarks about
How this will impact Microsoft (Score:3, Interesting)
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.
Infringement of speech (Score:1)
Re:Does anyone know what "Draconian" means anymore (Score:4, Interesting)
Re:Deception (Score:1)
I'm not saying that this is what they had in mind (athough, by another post I read, it would seem likely), but according to their EULA, they can do it. Or perhaps I should say could.
Re:Deception (Score:5, Interesting)
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.
Re:Deception (Score:2)
While yes, it pretty much explicitly rules that that clause is unenforceable, the latter does not follow. Almost every contract/license/agreement nowadays has a severability clause. What this says is that if any part of the agreement is determined to be unlawful or unenforceable, it doesn't mean the whole agreement is. Just that that clause is "severed" from the rest of the agreement.
-Todd
Re:Deception (Score:3, Informative)
http://www.canarsiecourier.com/News/2002/0221/Oth
Sellers have no "rights". (Score:3, Interesting)
Re:Microsoft .NET next ? (Score:2)
J.