FC: Response to Microsoft database review, Cringely, and N.World

[Declan McCullagh <declan () well com>]

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A response to:
http://www.politechbot.com/p-01797.html
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From: Adam Gaffin <AGaffin () nww com>
To: "'declan () well com'" <declan () well com>
Subject: About Microsoft, Cringely and Network World
Date: Sat, 10 Mar 2001 22:14:17 -0500

Hi! That Cringely item you reposted on politiech is, unfortunately, wrong.
Here's a copy of the  note Christine Burns, director of our Global Test
Alliance, has been sending out:

Thank you for contacting Network World in an attempt to verify the facts
behind this story.  We can only wish that Mr. Cringely had attempted to do
the same before he ran his column
(http://www.infoworld.com/articles/op/xml/01/03/05/010305opcringely.xml) in
this week's issue of InfoWorld so that we could have avoided having these
inaccuracies circulated.  You will not find the test results mentioned in
Mr. Cringely's column on the Network World site because the independent test
lab featured in the InfoWorld article refused to give them to Network World
once Microsoft started threatening him with a lawsuit if he shared them with
any publishing organization.

For the record, Network World did not commission this independent testing
lab to run these tests comparing Windows 2000 performance to Windows NT
performance.  Rather, a news reporter who was researching a story on similar
numbers produced in an report by Tolly Research (www.tollyresearch.com),
happened to call this second lab director as a news source to see if he had
ever reached similar results.  It was the lab director who then offered to
run the tests on his own accord that afternoon.  When Microsoft started
giving the lab director heat about the results and how he used SQL Server
softwre to conduct the test against the standard licensing contract, it was
the lab director -- and not Network World --  who pulled back the results.
Network World has yet to publish the results as the lab director has not
made them available. If this testing had been part and parcel of Network
World's official testing program, we would have been intimately involved
with setting the test methodology so that Microsoft would not have had this
legal loophole to sneak through and therefore we would have stood behind the
results regardless of the Microsoft threats.

Please let me know if you any further questions on this matter.

-- Adam

Adam Gaffin
Executive Editor, Network World Fusion
agaffin () nww com / (508) 490-6433 - http://www.nwfusion.com
"I programmed my robotic dog to bite the guy who delivers the electronic
mail." -- Kibo

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> Date: Thu, 08 Mar 2001 10:55:34 -0500
> To: declan () well com, politech () politechbot com
> From: Philo <philo () radix net>
> Subject: Re: FC: Microsoft invokes contract to block database review;
>   responses
> X-OriginalArrivalTime: 08 Mar 2001 15:55:56.0661 (UTC) 
> FILETIME=[431D2A50:01C0A7E8]
>
> At 09:54 AM 3/8/2001 -0500, Declan McCullagh wrote:
> > [Seems to me it's not a classical case of censorship, since the
> > reviewers (not being entirely stupid) knew that the contract
> > prohibited reviews without consultation, etc. and nobody was forcing
> > them to accept the deal. But I do believe that such contract terms are
> > a bad idea, and that if they go too far -- or companies go too far in
> > enforcing them -- that reviewers will simply ignore those
> > products. --Declan]
>
> FYI, Maximum PC magazine polled its readers, and has taken a stance that 
> they will no longer participate in industry reviews if they're required to 
> sign an NDA. Jon Phillips, the Editor, believes, and his readership 
> agrees, that there's simply no point in wasting their time reviewing 
> products they're not allowed to report on.
>
>
> > Well, while I don't support such clauses, it's only fair to note that
> > most databases need an inordinate amount of tuning to behave well, and
> > most testers simply don't have the knowledge, resources, or time to tune
> > the databases properly. Therefore, most third-party benchmarks are just
> > horribly wrong. It would be nice if there was a way to protect db
> > manufacturers from this, but obviously censorship isn't really the
> > answer. (But what is, besides perfect software?)
>
> Would you buy a car if it only ran properly after extensive post-purchase 
> tuning by the manufacturer? Seems to me that if the database is that 
> difficult to get maximum performance out of, then continually publishing 
> "poor" benchmarks on databases that don't have the magic combination of 
> tablespace extents and registry keys set will encourage database 
> manufacturers to improve their products.
>
> It's unfair when Microsoft gets to tweak SQL server to the nth degree and 
> Oracle doesn't, true. But if the same test team installs and tweaks both, 
> that is nothing but a fair, real-world test. If it takes one of a hundred 
> super-expert DBA's in the world to tune them "right" then the database 
> engines need more work.
>
> My $.02
>
> Philo
> philo () radix net AOLIM: philo589         ICQ: 9802707
> =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
> Be kind to your knees, you'll miss them when they're gone.
>         -Mary Schmich

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> Date: Fri, 9 Mar 2001 16:18:22 +0800
> From: Miles Nordin <carton () Ivy NET>
> To: Declan McCullagh <declan () well com>
> Subject: [Politech reply] Re: FC: Microsoft invokes contract to block 
> database review; responses
> X-Mailer: Mutt 0.95.4us
>
> > It's a standard clause in all database server (Oracle, Sybase,
> > Microsoft, etc.) license agreements that you may not publish any
> > benchmarks without the express written approval of the manufacturer.
>
> Isn't there some dispute about the enforcability of these ``licenses''?
> They are not contracts, because they are not signed.
>
> I know that GNU claims the GPL is enforceable because it is not
> taking away rights.  With a GPL program:
>
>   1. Copyright takes away your right to freely distribute the program.
>   2. The GPL grants you additional rights (to distribute), but only
>      under certain conditions.
>
> so, GNU claims the GPL ``license'' does not, in legal terms, take away
> rights---rather, it grants you additional rights that you didn't have
> without it.  That these additional rights are so cleverly crafted is
> the genius of the scheme---the GPL does not ``enforce'' or ``limit''
> what you can do.  Copyright does that.
>
> This is in contrast to Microsoft's supposed SQL Server license.
>
> These ``licenses'' are taking away rights without a signature.  Is
> there any precedent for the enforceability of shrink-wrap licenses, or
> just a lot of legal threats?
>
> It strikes me as absurd to give any printed word the force of law.
> Tear-to-agree seems all too similer to ``POSTED:  Ye who sneezes upon
> this Stone consigns his firstborn into slavery of Lord Chocula forever
> and ever.''
>
> Perhaps all the awards granted to software companies so far are based
> on copyright alone, and these ``licenses'' are meaningless.  If that
> were true, then there is no other way to see this besides using
> cost-of-litigation as a form of extortion.
>
> It is no surprise, then, that Microsoft settled their claim without
> litigation, relying merely upon the threat.  I suspect we will find that
> is the overwhelming pattern.

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> Date: Thu, 08 Mar 2001 11:21:47 -0500
> To: declan () well com
> From: [netcommuner () yahoo com]
> Subject: 'contrary to public policy'?
>
> could one argue that such clauses are 'contary to public policy' and 
> therefore void?
> and 3rd party independent reviews...as have been conducted by Consumer 
> Reports for many years .. protected speech under the 1st Amendement which 
> trumps...at least until 5 of 9 Supremes say otherwise...the UCC? and other 
> recent shrinkwrap protection extending laws?
>
> bet some Public Interest litigation outfit like Jamie Love's might be up 
> for such landmark litigation via declaratory judgement suit
>
> NOTE: <please use below id, instead of real id in this email , tx paul >
>
> netcommuner
> netcommuner () yahoo com

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