December 2, 2020

More on Court Tossing No-Reviews EULA Clause

The EFF has posted a copy of the New York state court’s ruling in the Network Associates case that I wrote about previously.

The court’s ruling makes three main points. (1) The contract clause, which forbids customers from reviewing the product or publishing the results of benchmarking it, is unenforceable. (The court doesn’t expand on why it is unenforceable.) (2) The clause was written in a way that tends to deceive customers into thinking that there are other legal “rules and regulations” outside the contract itself that ban unauthorized reviews; writing the clause this way is a deceptive business practice and thus illegal under New York law. (3) Network Associates must remove the clause from its contracts (which it says it has done already, though there is some evidence to the contrary); it must inform the New York Attorney General in advance before using any language that bans reviews; and further proceedings will be held to determine what if any fine to impose on it.

No-benchmark clauses are pretty common in licenses for database products. This has been a major impediment to database research. Several researchers have pondered challenging these clauses, but none have done so. Perhaps this ruling will help free database researchers to do quantitative work on commercial systems.