Judge orders NAI to revamp license agreement

A New York judge has ordered Network Associates Inc. (NAI) to stop placing restrictions on what its customers can say about its products.

The ruling, handed down Wednesday by Manhattan Supreme Court Justice Marilyn Shafer, enjoined NAI from "distributing, advertising and selling its software" with language that prohibited customers from disclosing the result of any benchmark tests to any third party without the company's written approval, or publishing reviews of its products without NAI's consent.

Those restrictions appeared on NAI's software diskettes and on the company's Web site, from which customers can download software. NAI is the parent company of McAfee Security and Sniffer Technologies Inc.

Last February, New York Attorney General Eliot Spitzer filed suit against NAI contesting the legality and enforceability of such clauses. In the lawsuit, Spitzer alleged that the language in NAI's licensing agreement violated the media's and consumers' First Amendment rights to free speech, as well as their fair use rights.

"This is important because we think it is the first ruling of its kind," said Brad Maione, a spokesman for Spitzer. "Being able to censor speech and criticism about software precludes academics, consumers and experts from openly and freely discussing software products."

The judge also required NAI to provide it with evidence of its sales so that the court can set penalties and costs.

In striking down the restrictive clause as "deceptive" and "not merely unenforceable," the judge said that on at least one occasion, NAI had used it to quell a critical review.

That review, published in 1999 by Network World, a sister publication of Computerworld US, had compared NAI's Gauntlet firewall software unfavorably against five other firewall products. In his lawsuit, Spitzer described how NAI had demanded a retraction of the negative review, citing the language of the now-prohibited clause. Network World, however, refused to make the retraction.

NAI legal counsel Kent Roberts disputed the judge's ruling that the clause was deceptive.

"We just wanted to make sure that people had the latest product and were getting the best information for testing and reviewing," Roberts said. "We have great difficulty understanding how the clause is deceptive, and for that reason we are appealing the judge's decision."

Roberts added that even before Spitzer filed his lawsuit, NAI had changed the language of its licensing agreements to "suggest" rather than "direct" reviewers to contact the company. Roberts also said NAI never tried to stop any bad reviews of its products.

Eric Hemmindinger, an analyst at Aberdeen Group, said he thinks the ruling is much ado about nothing.

"I don't see how any of this impacts how people use [NAI's] product and what it does for them," he said.

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