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Discussing crap

By Scott Bradner

Network Associates thought they could override the U.S. Constitution by the use of a shrink-wrap license. Recently a New York State court told them otherwise. The decision itself is potentially important in what it says, but it may be more important in what it may imply.

Network Associates is not the only software company that has tried to keep people from saying just what they thought of the companies products, its just the first to get sued over trying to do so. Network Associates has included two clauses in the license for its products that said:

"b. The customer shall not disclose the result of any benchmark test to any third party without Network Associates' prior written approval.

c. The customer will not publish reviews of this product without prior consent from Network Associates, Inc."

The court said that including the clauses was deceptive because such clauses could never legally be enforced yet Network Associates implied that it was a legal restriction by including them in the license. The court has asked for sales records for all products that included this clause so that the court can figure out what fine Network Associates should have to pay.

Network Associates claimed that they did not mean what they clearly said, they claimed that they just wanted to be sure that people were reviewing current versions of the products. But the court did not buy that request to ignore the plain meaning of the text. Network Associates has since changed the language, at least on their web site, to be more in line with what they claimed was their purpose all along. (https://secure.nai.com/forms/registration/agreement.asp?GovRes=False)

These types of restrictions are not new but seemed to be getting more common. The only possible explanation for them was to keep you from saying that a product was crap if your experience was that it was crap. That restriction may be good for a vendor of crappy software but not for anyone else. I hope that the court's decision is upheld after the appeal that Network Associates says they are going to file -- I wonder if Network Associates has some underlying software quality reason to keep people from saying what they think.

But the main importance of the decision may have nothing specifically to do with the restriction of free speech. Ken Dreifach, chief of the Internet bureau of the office of the New York State attorney general, noted that: "The decision "raises the issue of whether these types of clauses — whether they restrict use, resale or the right to criticize — are enforceable,"

There are lots of clauses in software, and technology being added to products to restrict the right of the purchaser to use or resell the products they buy. One example is the copy protection in some music CDs that restrict the user's ability to play the music on their PCs or to sell it to a friend in some other part of the world. Another is the restrictions on loaning, leasing or reselling that a number of software vendors, including Network Associates, put on their software products. Maybe Network Associates will be back in court again soon.

disclaimer: I did not ask the Harvard Law School, sort of a legal arms merchant, trained the New York state attorney general and likely some the lawyers on the other side, their opinion on this case -- its all mine.