FC: More on New York sues NAI over no-criticism shrinkwrap

[Declan McCullagh <declan () well com>]

Naturally, as a reporter who sometimes writes product reviews, I am not 
defending this NAI shrinkwrap agreement, which I find objectionable. 
Instead I am defending NAI's right to imbed even objectionable-to-reporters 
terms in their shrinkwrap licenses. I suspect that if NAI continues this 
practice, mentions of NAI products will fade from the trade press, and 
individuals and corporations seeking sober critiques of NAI products will 
turn to competitors' products. If a sufficient number of people react 
negatively to the NAI shrinkwrap, NAI may have a change of heart. (Of 
course, perhaps the market does not value reporters' reviews quite as much 
as reporters believe to be the case...)

I'm speaking at CWRU law school today here in Cleveland, and we're probably 
going to be talking about this suit. Also see Judge Easterbrook's decision 
in the 1996 ProCD case:
> http://www.bitlaw.com/source/cases/copyright/procd.html
> A buyer may accept by performing
> the acts the vendor proposes to treat as acceptance. And that is what
> happened. ProCD proposed a contract that a buyer would accept by
> using the soft- ware after having an opportunity to read the license
> at leisure. This Zeidenberg [the buyer] did. He had no choice, because the
> software splashed the license on the screen and would not let him
> proceed without indicating acceptance.

Previous Politech message:
http://www.politechbot.com/p-03124.html

-Declan

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Date: Thu, 7 Feb 2002 16:13:06 -0500 (EST)
From: John R Levine <johnl () iecc com>
To: Declan McCullagh <declan () well com>
Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap

> 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.

Well, maybe.  Take a look at the AG's press release, which contains links
to the legal filings, at
http://www.oag.state.ny.us/press/2002/feb/feb07a_02.html

It claims that the no-censorship clause is fraudulent for a variety of
reasons, including the fact that the license agreement on the box, which
is what the a user would agree to by opening the package, says nothing
about the no-criticism language on the disks, so the no-criticism language
is unenforcable even by NAI's own statements.

According to the AG's filings NAI used the no-censorship clause in 1999 to
attempt to force Network World magazine to retract a negative review and
remove it from their web site.  NW, having competent lawyers, told NAI to
pound sand, but the AG says that since NAI has refused to respond to
discovery requests, they don't know yet how many other times they've done
this, nor the intangibles of how many people were deterred from publishing
reviews due to wrongly believing that the no-censorship language was
enforcable.

This suit comes from the AG's Internet bureau which is a very savvy bunch
of people, particularly in areas where cyberspace meets traditional AG
areas of interest such as consumer protection and business fraud.

Regards,
John Levine, johnl () iecc com, Primary Perpetrator of "The Internet for Dummies",
Information Superhighwayman wanna-be, http://iecc.com/johnl, Sewer Commissioner

---

From: "D McOwen" <dmcowen () bellsouth net>
To: <declan () well com>
Subject: RE: New York sues Network Associates over no-criticism shrinkwrap
Date: Thu, 7 Feb 2002 16:14:06 -0500

What's with State Attorney Generals around the country wasting taxpayers
money on such daft made up cases? I'm originally from New York and the
McAfee charges are no where near as nuts as what Georgia did to me but it is
still outside of normal bounds that Attorney Generals should be looking in
the best interests of taxpayers and their States citizens. There must really
be no real criminals out there in the country that AG's have all this time
and resources available.

Dave McOwen

---

Date: Thu, 07 Feb 2002 15:31:12 -0600
To: declan () well com
From: Brent Stansen <stansen () molawyers com>
Subject: Re: FC: New York sues Network Associates over no-criticism
  shrinkwrap
In-Reply-To: <5.1.0.14.0.20020207132635.00a2f990 () mail well com>

Network Associates has been doing this for a long time. The real humor is 
that this company owns (or owned, they were trying to sell it) PGP. 
Commerce makes for strange bedfellows.

Btw, even if your market-correcting analysis is correct in general, the 
speech restrictive license might impose significant costs by forcing many 
people late in the process of choosing an antivirus software to find 
another vendor because only late in the process will those consumers 
realize that the software comes with an unreasonable license.

Lastly, there is the public policy problem of impeding the very market you 
desire by limiting the free flow of information regarding the software. So 
far the market has not forced Network Associates to get real, but it has 
forced them into financial trouble.

---

Date: Thu, 07 Feb 2002 15:52:18 -0500
From: "Robin (Roblimo) Miller" <robin () roblimo com>
To: declan () well com
Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap


> http://www.infoworld.com/articles/op/xml/01/03/05/010305opfoster.xml
>
> > ...supporters have scoffed at the notion that publishers would use 
> > shrink-wrap licenses to prohibit public criticism of their products.


Not just old news, but ancient. McAfee had that license term back when you 
and I were both writing for Netly News. Soon after I moved to Andover (now 
(OSDN) I wrote a rather nasty review of their "McAfee Office" product 
anyway. It was crappy software, and deserved a downcheck.


I have always had the bad habit of reading proprietary software EULAs. 
Perhaps this is one of the reasons I switched to Linux in 1997/1998 and 
haven't regretted it for a moment. :)


- Robin "Roblimo" Miller
Editor,
NewsForge
Slashdot
and now Linux.com too...

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Date: Thu, 07 Feb 2002 12:45:49 -0800
From: Chris Winters <chris.winters () eastsidejournal com>
Organization: Eastside Journal
To: declan () well com
Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap

Based on what you're reporting here, it seems that there might be two 
problems with
this contract: 1) it effectively muzzles the press -- all of them, since I 
don't
imagine you can install and run, not to say review, the product, without 
accepting
the license agreement. If I were a product reviewer and saw that notice, in the
very least I would have to consult with the legal department first before doing
anything: that in and of itself might meet the definition of "chilling" 
speech; as
such, a reporter would never agree to anything that would control the 
content of
their critique; 2) there might be other issues related to surpressing peer 
review
or scientific discourse, in the manner Felten (unsuccessfully) tried 
against the
DMCA and the recording industry. In both cases, they could be using 
contract law to
override fair use rights. I'd be interested in seeing the complaint myself.
Chris Winters

---

Date: Thu, 7 Feb 2002 12:48:41 -0800
From: Eric Murray <ericm () lne com>
To: Declan McCullagh <declan () well com>
Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap
Message-ID: <20020207124841.A24997 () slack lne com>

On Thu, Feb 07, 2002 at 01:31:41PM -0500, Declan McCullagh wrote:
> I haven't read the complaint or the license agreement myself, but perhaps
> this is what the NY AG is upset about:

[non-disparagement non-benchmark clause]

> 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...

You know as well as I do that only completist geeks like you and I
read these things.  The manufacturers make it as difficult as possible
to read them.. online versions appear in tiny boxes, with tiny print,
requiring even people like myself with perfect eyesight to squint and
scroll and wade through legal gibberish more difficult to understand
than an ISO standard.  Often the click-throughs are set up so you can't
print them, making me wonder what it means to agree to a contract that
you can't reasonably get a copy of.

The other problem is that all manufacturers will use this language,
making "free market" a non-solution... the added payoff from being able
to stiffle legitimate criticism will more than offset the tiny loss in
revenue from the few who will stand on principle or even understand that
they have lost the right to say "this product sucks."

Eric

PS. When I say the free market isn't a solution, that doesn't
mean I favor a government solution.

---

Date: Thu, 7 Feb 2002 13:02:48 -0800
To: declan () well com
From: j eric townsend <jet () tivo com>
Subject: Re: FC: New York sues Network Associates over no-criticism
 shrinkwrap
Content-Type: text/plain; charset="us-ascii" ; format="flowed"
X-UIDL: 3e72ea1e73316aac76cedf8d7e141859

> I haven't read the complaint or the license agreement myself, but perhaps 
> this is what the NY AG is upset about:
>
> http://www.infoworld.com/articles/op/xml/01/03/05/010305opfoster.xml
> > ...supporters have scoffed at the notion that publishers would use 
> > shrink-wrap licenses to prohibit public criticism of their products. 
> > Nonetheless, our friends at Network Associates seem prepared to do just 
> > that with their click-wrap license for VirusScan 5.15. "The customer 
> > shall not disclose the results of any benchmark test to any third party 
> > without Network Associates' prior written approval," reads one part of 
> > its EULA, immediately followed by: "The customer will not publish reviews 
> > of the product without prior consent from Network Associates." Network 
> > Associates declined to comment on why it includes these terms in the 
> > VirusScan license...
>
> Anyone know if there have been similar lawsuits over this before?

nope, but it was a standard bit of Microsoft shrinkwrapping a few years 
back.  No published reviews of software without their permission/oversight.


--
jet () tivo com
408.519.9509
0x19D3BAF5, 5CCF 2251 5B45 0ABA B91D  AD81 4A60 3401 19D3 BAF5

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Date: Thu, 07 Feb 2002 16:45:04 -0500
Subject: Re: FC: New York sues Network Associates over no-criticism
        shrinkwrap
From: Richard Forno <rforno () infowarrior org>
To: <declan () well com>, <politech () politechbot com>

Oracle did something similar when PC Magazine tried to publish competitive
benchmarking of its products back in 1998, if I remember correctly, but I
don't htink it went to court.

rf

---

Date: Thu, 7 Feb 2002 15:10:59 -0800 (PST)
From: rabbit <rabbit () poorrabbit com>
To: declan () well com
Subject: Re:FC: New York sues Network Associates over no-criticism shrinkwrap

I had a couple of comments regarding your statements about the no-criticism
license. You question why such licenses are a big deal. I have, I think,
some answers:

Most shrinkwrap licenses are not available until AFTER the item is
purchased. They're insides the box, and you don't what it says until
you open the box which you've already paid for. Since you didn't see
the license before you bought it - you could not possible have agreed
to it. So, many people, including (IIRC a CA judge) are of the opinion
that shrinkwrap licenses are invalid, period, and completely unenforcable.

There are a couple of other issues regarding this particular license.
Imagine if every single item you bought came with a EULA that prevented
criticism. There would be no music reviews. No car reviews. No software
reviews.  No reviews of any sort at all. The only reason software companies
get away with it is because nobody understands technology, and when
someone puts forth the rediculous idea that you can't talk about software
that you've *paid for* nobody seems to care that it's just like buying a car
and being told that you can't talk about it. How many print magazines
would completely disappear if they were no longer allowed to review things?

I'm starting to ramble now, so I'll shut up, hoping I've made some sort of
point...
___________________________________________________________________
Jon Cortmaior (jon () 0def com)| 0def Design Associates | unix geek

----

Date: Fri, 8 Feb 2002 02:12:29 -0500
From: "J. Lasser" <jon () lasser org>
To: Declan McCullagh <declan () well com>
Subject: Re: FC: New York sues Network Associates over no-criticism shrinkwrap
Message-ID: <20020208071228.GB27717 () frogbog baltimorons org>
References: <5.1.0.14.0.20020207132635.00a2f990 () mail well com>
Mime-Version: 1.0
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User-Agent: Mutt/1.3.27i
X-UIDL: 47239d8cbd5a76bdf7f3491cf7911067

In the wise words of Declan McCullagh:

> 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...

Nope. That's one of the questions. And since the license is on the
inside of the package, you don't know what the license is before
shelling out your money. Sure, you can return it to the store, if the
store will take an opened package. (Back when I worked software retail,
we'd take things back if the inside envelope wasn't opened. But if the
license isn't available until the disc is in the drive, that's just too
bad.)

But the commonly-understood notion of contracts (and, frankly, the only
one that works on a wide scale with any sort of equity) includes the
idea of _negotiation_. That is, both parties can sit down and hash
things out. It's not supposed to be take-it-or-leave-it. This obviously
doesn't work for software licenses, where one can't negotiate. By my
understanding (though I'm not a lawyer --- perhaps a real lawyer can
comment?), contracts without each party having an opportunity to
negotiate are generally not valid.


--
Jon Lasser
Home: jon () lasser org            |    Work:jon () cluestickconsulting com
http://www.tux.org/~lasser/    |    http://www.cluestickconsulting.com

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