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NY Finds McAfee Makers Guilty
Court declares licensing agreement stifles free speech
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Following a year long court battle, Network Associates, developers of McAfee VirusScan, has been permanently prohibited from what New York Attorney General Eliot Spitzer described as "speech restrictions that the company has placed on its software users". Last week, on January 17, 2003, Manhattan Supreme Court Justice Marilyn Shafer specifically prohibited the speech censoring language previously contained in Network Associate's End User Licensing Agreements (EULA) and "further enjoined the company from including with its products 'any language restricting the right to publish the results of testing and review' unless the company first gives the Attorney General 30 days notice."

Specifically, the debate centered on language published at various times on the Network Associates website, on product packaging, and in the end-user licensing agreement (EULA) stating, "The customer shall not disclose the results of any benchmark test to any third party without Network Associates’ prior written approval". Though Network Associates denies the language was designed to stifle reviewers, Spitzer cites an incident which occurred between Network Associates and Network World Fusion after the magazine published a review of Network Associates' Gauntlet firewall. According to Spitzer's petition, Network Associates emailed the magazine demanding "a correction/retraction" and warned that Network World had "willfully violated [Network Associates'] license agreement, particularly since [the reviewer] was informed that [Network Associates] were not participating."

In a statement released after last week's court victory, Spitzer said, "Whether the subject is political debate, debate in the arts and sciences, or debate over what software to buy, we must protect free and open speech from intimidation. The public has a right to information about products, and technologists have a right to create and innovate, so long as they adhere to the law when doing so. After all, we will lose the benefits of life in the Information Age if language contained on web sites or product packaging prevents citizens from participating in vital exchanges of information."

Though tried in New York, last week's court decision may have far-reaching implications for the entire software industry, many of whom routinely include similarly worded licensing language preventing users from publishing information discovered during product testing. For example, a Google search on eula+benchmark at the time of this article revealed several links to Microsoft EULAs for products ranging from Windows 98 components to the recent .NET framework stating, "You may not disclose the results of any benchmark test of [product] to any third party without Microsoft's prior written approval."

The court has asked that Network Associates provide evidence of all product sales, so that the appropriate fines can be assessed. Network Associates plans to appeal the decision.

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