...how I wasted 90$ on virus scan.
Court: Network Associates can't gag users
By Lisa M. Bowman
Staff Writer, CNET News.com
January 17, 2003, 1:32 PM PT
In a victory for free-speech advocates and product reviewers, a New York
state judge has ruled that Network Associates can't prevent people from
talking about its products.
New York state Supreme Court Justice Marilyn Shafer issued a ruling, made
public this week, prohibiting the security software specialist from trying
to use its end-user license agreements to ban product reviews or benchmark
tests.
The judge called the company's attempted ban "deceptive" because it implied
consumers who conducted the reviews would be violating the law, when they
would not. Shafer has not ruled on damages.
The New York attorney general's office began investigating the case after
Network World Fusion magazine published an unfavorable review of the Santa
Clara, Calif.-based company's "Gauntlet" firewall software in 1999.
According to the ruling, Network Associates demanded a retraction and
accused the magazine of violating its licensing agreement. At the time, the
agreement stated that people could not review or test Network Associates
products without prior approval from the company.
The attorney general's office filed suit last year, claiming the licensing
agreement's language may cause people to believe that they're breaking the
law by reviewing the product without consent.
"Such clauses censoring speech and criticism chill not only consumers'
speech, but also prevent academics, consumer advocates and technology
experts alike from openly and freely discussing software products," New
York Attorney General Eliot Spitzer said in a statement. "Restrictions like
these threaten to hinder the spirit of innovation and critical appraisal
the public needs to keep software effective, efficient and safe."
Network Associates said it plans to appeal the ruling. "I just don't see
how we've deceived anyone," said Kent Roberts, executive vice president and
general counsel for Network Associates. "Our goal here was to actually
increase the amount of information available to customers."
Roberts said the company inserted the phrasing in question into its
agreements to help make sure reviews and benchmarks reflected the current
version of the product.
He said the ruling would not affect the company operationally, because it
has been in the process of changing the language of its contracts for
nearly a year. But it could also affect other software makers who insert
such terms into their agreements. "I think they should be quite interested
in the case," he said.
Particularly, Roberts points to a part of the judge's ruling that requires
Network Associates to notify the court within 30 days if it makes further
changes to the disputed language.
End-user license agreements have become a hot-button issue in the tech
industry as more and more companies try to forge increasingly restrictive
contracts. Some companies have tried to ban class-action lawsuits, requests
for damages or reverse engineering of their products.
The ruling in the Network Associates case is believed to be the first to
prohibit bans on software reviews.
The case doesn't necessarily have any immediate legal impact outside of New
York state, but it may force other technology companies to tone down their
licensing agreements or risk running afoul of consumer protection or
free-speech laws.
"It seems a very clear warning to software companies that these types of
provisions are not a good idea," said Fred von Lohmann, an attorney with
the Electronic Frontier Foundation (EFF. "The software industry is going to
have to grow up and treat consumers with the same respect that other
industries have been forced to."
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