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Posted on 01/18/2003 11:31:29 AM PST by PAR35
A New York court has ruled that Network Associates, a maker of popular antivirus and computer security software, may not require people who buy the software to get permission from the company before publishing reviews of its products.
The decision, which the company has vowed to appeal, could carry a penalty in the millions of dollars, according to Ken Dreifach, chief of the Internet bureau of the office of the New York State attorney general, Eliot Spitzer.
Last spring, Mr. Spitzer sued Network Associates, which has its headquarters in Santa Clara, Calif., asserting that the company's software included an unenforceable clause that effectively violated consumers' free speech. The clause, which appeared on software products and the company's Web site, read: "The customer will not publish reviews of this product without prior consent from Network Associates Inc."
In a decision the parties received late Thursday, Justice Marilyn Shafer of State Supreme Court in Manhattan ruled that the clause was deceptive and that it warranted a fine, which she wrote that she would determine in the future.
Mr. Dreifach said the decision had implications beyond Network Associates. "These types of clauses are not uncommon," he said. The decision "raises the issue of whether these types of clauses — whether they restrict use, resale or the right to criticize — are enforceable," he added.
Indeed, other software makers, including Microsoft, have been criticized by product reviewers for including prohibitions in their users' licenses.
But Mr. Dreifach said the State of New York singled out Network Associates because, he asserted, "it was the most egregious example we saw." He said that before New York pursued other cases, the attorney general would wait and see whether companies changed their policies, and whether consumers used the decision to address concerns with companies.
Kent Roberts, the general counsel for Network Associates, said last February that the company had decided to update the language on its products. At that time, he said the new language would address Network Associates' real concern, namely, that reviewers did not publish reviews of old or outdated versions of the software.
Yesterday, Mr. Roberts said the company was still in the process of changing the language. "It's a process to change the physical product," he said. "We're trying to get it done as quickly as possible."
Still, Mr. Roberts said he disagreed with the court's reasoning. He said that Network Associates had never intended to restrict speech, but wanted to make sure that reviewers did not publish misleading information about its current release of products.
"I still fail to see — having read the opinion several times — how we are being deceptive," he said.
The State of New York asked the court to impose a fine of 50 cents for each product sold with the license. Mr. Dreifach estimated the numbers of products to be in the millions, but said Network Associates had not complied with a request to provide the precise number sold.
Mr. Roberts said the clause had appeared on "almost all of our products," which includes three product lines with several software versions on each line. But he said he did not have an estimate of how many products had been sold with the clause.
My solution is for all reviewers to totally ignore companies and their products who do something like this. Impractical with MS, I know, but . . . I just have mixed feelings (at least) about courts getting into this.
I'm tempted to ping Bush2000 to that comment. He called me a troll the other evening on a Microsoft related thread after I suggested that they should provide support for software until they get the bugs out.
The producers of Superman IV pulled the same thing with Siskel & Ebert. They refused to agree to have their reviews pre-screened by the movie producers, and instead told their viewers what the movie studio sought to do.
As for the enforceability of such clauses, the law should be (and I think is in many states) that contracts whose terms are only available after money changes hands are unenforceable. If a company only makes software available to people who have agreed to certain licensing terms, and does not accept payment until after such agreement has been made, then the terms would be much more reasonable.
BTW, I wonder if any magazines have any formal policies that they will not subject reviews to advance approval; they will decline to review any product that would require them to do so.
Do you have a reference for that?
I have always believed that it meant that the government could make no law abridging freedom of speach. A law which allows you to tell me what I can and can not say seems to fall into this category.
We already have libel and slander laws in the civil law to deal with improper speech outside of the government framework. If a review blasts a software product (or any other person, place or thing) then it had better have truth on its side. Given that, restrictions on criticism are totalitarian in nature, and anathema to a freedom-loving society.
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