IP: more on New York sues Network Associates over no-criticism shrinkwrap

[David Farber <dave () farber net>]

> Date: Sun, 10 Feb 2002 16:00:35 -0700
> From: Joel Snyder <Joel.Snyder () Opus1 COM>
> To: declan () well com
>
>
> Declan:
>
> I read your posting to Politech and wanted to respond.  Here's what you
> wrote:
>
> >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...
>
> I am the reporter cited by the suit as one case where NAI tried to use this
> license to supress reviews of their product.  This is in relationship to a
> review of NAI's Gauntlet I did in 1999.
>
> The situation is not a simple as a contract.  There are certain things
> which you cannot put in a contract, no matter what.  For example, it it
> illegal for us to write a contract in which you agree to kill someone, or
> I agree to kill you.  That's a silly example, but it should get you thinking
> about the issue.  The point is that the state has a compelling reason to
> forbid certain kinds of clauses in contracts.  The NY AG office is saying
> that this is one of those cases.
>
> Your point about NAI and people simply not reviewing their products is OK
> for NAI, but this same type of clause has appeared in Microsoft products
> before, and I believe (but am not sure) that it still appears in SQL Server's
> license agreement.  What would you say if MS suddenly decided that no
> one
> could review their products without their permission?  Wouldn't you agree
> that the state would have a compelling reason to forbid that kind of contract?
> If no one could talk about Windows in an article without getting permission?
>
> What goes for MS, in that case, would go for everyone.
>
> More specifically, the text in the NAI license is a "restrictive covenant,"
> which is prohibited (at least in NY) because it restricts important rights
> (such as the right to discuss a product openly) without any good reason.
> In the case of shrink-wrap licenses, such as are common in software packages,
> restrictive covenants are especially problematic.  What might go in an
> individually-negotiated contract between you&me doesn't go in a broad,
> "offer to everyone" situation like a software package.
>
> There are other procedural issues which NAI is being cited for specifically,
> including the way the clause is written and the fact that there are two
> different licenses which conflict with each other.  But the real reason for
> the complaint is the restrictive clause nature.
>
> I belive that in the publicly available papers on the NY AG's web site
> is a
> memorandum of law which goes through the legal issues in the complaint very
> specifically, with appropriate citations and a great deal more expertise than
> I ever could.
>
> jms
>
>
> --
> Joel M Snyder, 1404 East Lind Road, Tucson, AZ, 85719
> Phone: +1 520 324 0494 (voice)  +1 520 324 0495 (FAX)
> jms () Opus1 COM    http://www.opus1.com/jms    Opus One

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