A censorship test case

COULD FREEDOM of speech and freedom of the press be lost to the fine print? Don't dismiss the possibility. We may have already lost more than any of us realize.

In early February, New York Attorney General Elliott Spitzer announced a lawsuit the state was bringing against Network Associates over the speech restrictions the software company places on users of McAfee product lines. Specifically, the lawsuit points to what it calls the "censorship clause" customers have been forced to accept when installing McAfee products from a disk or from the Internet. Spitzer argues such clauses are illegal and harm the public by censoring open discussion of product defects.

The clause the lawsuit refers to is the same one we saw last year in McAfee VirusScan's clickwrap agreement: "The customer shall not disclose the results of any benchmark test to any third party ... and will not publish reviews of the product without prior consent from Network Associates." In at least one instance, the lawsuit alleges Network Associates cited the clause as justification for demanding that a publication retract its negative review of a McAfee product.

Without question, the New York attorney general's action is terrific news. Network Associates' speech restriction has always been blatantly onerous, both because it prohibits reviews of all sorts and because products such as VirusScan are sold to consumers at large. However far this lawsuit goes, it is going to at least make software publishers think twice about including similar terms in their agreements, much less trying to enforce them.

But while censorship-clause purveyors may scurry for cover right now, I think it's important to understand that these clauses have been lurking quietly but effectively for many years. Not in courts, however. As far as I know -- and I've asked just about everyone who ought to know -- no software company has ever actually tried to take an end-user or a publication to court to enforce one of these terms. Nevertheless, contractual restrictions on public disclosure of performance information have often been effective in muzzling critics.

A little history is in order. I first became aware of these restrictive contract clauses back in the '80s when I was a news editor at InfoWorld. A technology research firm had an interesting story it was pitching about results of benchmark tests it had run using the Oracle database. Just as our reporter was about to write the story, the research firm informed us they would have to withdraw their results and all their comments based on them. The research firm had been informed that Oracle's signed customer agreement included a clause prohibiting disclosure of benchmark results to others, and the small firm wasn't about to take on Oracle in a legal fight. And as they no longer would stand behind their findings, we had no story.

Although Oracle's clause didn't mention reviews specifically, the benchmark restriction had pretty much the same effect. As the Oracle database products are not typically ones you can just buy off the shelf, Oracle could prevent reviews simply by refusing to supply the publication a review copy. Many publications, InfoWorld included, have been forced to leave Oracle out of product comparisons because of this. On one occasion, Oracle agreed to provide the InfoWorld Test Center an evaluation copy but changed its mind after testing had begun. Oracle cited the no-benchmarks term and demanded we not include its product, a threat that InfoWorld ignored. After the comparison (in which the Oracle product did fairly well) was published, Oracle took no further action.