full-disclosure - Court: Network Associates can't gag users (or can they?)

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Message-ID: <000c01c2be7f$a52aba00$6701a8c0@rms2>
From: rms at computerbytesman.com (Richard M. Smith)
Subject: Court: Network Associates can't gag users (or can they?)

Question:  Can vendors like Network Associates attempt to also use
anti-review clauses in software licensee agreements to prevent public
disclosure of security holes in their products?  This ruling probably
only applies in the state of New York and Network Associates plans to
appeal.

Richard M. Smith
http://www.ComputerBytesMan.com

================================================================

Court: Network Associates can't gag users
By Lisa M. Bowman 

http://news.com.com/2100-1023-981228.html 

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. 

.....