Some call it fair play

DO VENDORS HAVE a right to require product reviewers to ask for permission to publish? Surprisingly, even some fairly rational-sounding readers say yes.

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As we've tracked the growing use and abuse of censorship clauses in the fine print of EULAs (End User License Agreements), the majority of readers have reacted with outrage to what they see as a threat to free and open public discourse. But a significant minority -- some of them software developers but many IT customers as well -- have expressed sympathy for the vendors' desire to protect themselves from erroneous or biased product reviews. Not wanting to be a censor myself, I think we need to listen to what they have to say.

Most of the defenders of the EULA restrictions have been focused on benchmark prohibitions -- the no-publishing-benchmark-results-without-written-permission clauses invented by Oracle -- which are fast becoming ubiquitous in Microsoft's license agreements. Benchmarking complex products is a tricky business, these readers argue, and no one benefits from the publication of flawed data. "In my opinion, Microsoft has a right to ensure that its products are evaluated on a fair and level playing field," wrote one IT director. "Given the complexity of the .Net Framework, it would be very easy for a reviewer to make a mistake and produce [inaccurate] benchmark results .... Publishing unsanctioned benchmark tests could not only be a disservice to Microsoft or its competitors, but to those of us who read them."

My oft-stated belief that competitors should have the right to publish comparative benchmarks struck some as odd. Notwithstanding examples such as the infamous SoftRam 95 (a software program that was proved to be virtually useless by a competitor's benchmark results), some readers opined that it's perfectly fair to prevent such a clearly biased party from trying to hoodwink the public. "Benchmarks are just like other statistics -- they often lie," wrote a reader who once worked for a manufacturing company that was hurt by a competitor's skewed performance tests. "I don't suppose it would have been enforceable, but I wish we'd had a license agreement [prohibiting benchmark publication] then."

Speaking of enforceability, a few commentators have suggested that the most recent amendments to UCITA mean that all these EULA-based censorship clauses would be unenforceable under it. That's not really the case. While the latest amendment of public comment at first glance appears to do that, it actually only prohibits such terms from being enforced against an end-user. And in the official comments to UCITA, "end user" is defined in such a way that clearly excludes a publication, an independent lab, or a competitor that acquires the product from reviewing it. And, just by coincidence, that dovetails nicely with the interpretation Microsoft has given me of its benchmark restrictions. Microsoft officials have said their terms aren't intended to apply to end-users, just to wrong-headed publications and scurrilous competitors.

It's not just competitors who might have an axe to grind, as one thoughtful software developer pointed out. While uncomfortable with the idea of benchmark restrictions hidden away in EULAs, he described a situation his company has faced a few times with biased customers. "It's a fine line between censorship and 'bad-mouth' prevention when you are dealing with benchmarks and such," he wrote. "Many vendors rightfully get paranoid when a prospective customer requests a benchmark, but everyone knows that prospect to be extremely sympathetic to a single vendor. I have been involved in situations where our prime competitor got very thorough business intelligence on our and other vendors' products -- and we paid for the testing! It's hard to resist the temptation to protect your reputation and your ability to market yourself when that kind of behavior goes on."

The biased-customer scenario is an interesting one. Even if our software developer refuses to participate in the biased customer's performance shoot-out, what is to keep that customer from acquiring the product and testing it anyway? And then, having stacked the deck to make sure the favored vendor will look good, could not the biased customer go public with the results? Of course, in going public, the customer could become liable under slander, libel, and other defamation laws, but only if the customer's misrepresentations are ridiculously flagrant. Besides, at that point the software developer would have already suffered harm. Without the benchmark prohibition in their EULAs, how can any software vendor prevent such calumnies from being aired?

They can't. And, if we are to remain a society in which freedom of speech and freedom of the press have any meaning, vendors must not exercise any form of prior restraint. Free speech demands that biased customers, wrong-headed reviewers, and scurrilous competitors get to have their say. It's not for the subject of their commentary to determine whether they are credible enough to be heard -- it's for those who choose whether or not to listen to them.

And I must reiterate that the EULA-based censorship clauses don't provide any real legal protection for the software developers either. They have never been enforced in a court of law, and -- unless UCITA becomes widely enacted -- they hopefully never will be.

So, if they are unenforceable in court, why are we worried about these EULA-based censorship restrictions? Those of you who are new to this discussion might think we are dealing in mere hypothetical conjectures, but unfortunately, that's not the case. They are in fact inhibiting public discourse. And next week we'll see one of the scariest examples yet.