Current Intel license:

"Unless expressly permitted under the Agreement, You will not, and will not allow any third party to ... (v) publish or provide any Software benchmark or comparison test results."

If the author uses the ad servers to conduct benchmark or comparison tests of Intel software, and the ad networks allow the author to provide or publish the results of those tests, then it could be argued the ad networks are violating their license agreement with Intel. As a preemptive measure to prevent such testing, perhaps the ad networks would block the author's IP address.

The language in the Intel license probably was inspired from similar language first used by Oracle. This language is commonly copied and pasted into many software license agreements.

http://www.eweek.com/c/a/Application-Development/DB-Test-Pio...

Question: Is this type of restriction enforceable?

The only way to answer this is for end-users to challenge it. There was a case where a state attorney general challenged it because it was used in a deceptive way. The AG won. However the AG was not challenging this restriction as an end-user. The Court appeared to suggest the restriction would be unenforceable, but was not asked to decide that question. The question was whether the state's consumers were being mislead. Excerpts of that case below.

Excerpts from http://www.leagle.com/decision/2003579195Misc2d384_1519.xml

195 Misc.2d 384 (2003)

758 N.Y.S.2d 466

Supreme Court, New York County.

January 6, 2003.

----------------------------------------------------------------------

Supreme Court, New York County.

OPINION OF THE COURT

MARILYN SHAFER, J.

Network Associates included on the face of many of its software diskettes and on its download page on the Internet the following restrictive clause:

"Installing this software constitutes acceptance of the terms and conditions of the license agreement in the box. Please read the license agreement before installation. Other rules and regulations of installing the software are: "a. The product can not be rented, loaned, or leased-you are the sole owner of this product. "b. The customer shall not disclose the result of any benchmark test to any third party without Network Associates' prior written approval. "c. The customer will not publish reviews of this product without prior consent from Network Associates, Inc." (Affirmation of Kenneth M. Dreifach, exhibit 2.)

In July 1999, Network World Fusion, an online magazine, published a comparative review of six firewall software products, including Network Associates' Gauntlet. It appears that Network World Fusion sought permission to publish the review of Gauntlet and that Network Associates denied it. Network World Fusion performed the review despite Network Associates' refusal to allow the review of Gauntlet. In response to the unsatisfactory results of the review, Network Associates communicated its protest, quoting the language of the restrictive clause.

This conduct prompted an investigation by the office of the Attorney General of the State of New York.

"This language implies that limitations on the publication of reviews do not reflect the policy of Network Associates, but result from some binding law or other rules and regulations imposed by an entity other than Network Associates."

Assume for the sake of discussion, there is some such entity.

That is, assume some entity (e.g., Oracle, Microsoft, Intel, etc.) has a license restriction prohibiting publication of benchmark results.

Does the Court think that restriction would be enforceable?

"Thus, the Attorney General has made a showing that the language at issue may be deceptive, and as such, the language is not merely unenforceable, but warrants an injunction and the imposition of civil sanctions according to Executive Law S: 63 (12) and General Business Law S: 349."

Is the Court here suggesting that even if the restriction was not deceptive, it is nevertheless unenforceable.

Is it possible to read that sentence as suggesting the restriction has the qualities of being both unenforceable and deceptive.

As to unenforceability, no users challenged the enforceability of the restriction. Until they do, we cannot answer the question of enforceability.

However, as to deceptiveness, this can be a violation of state business laws and give rise to grounds for injunction and civil sanctions. This is what allowed the NY AG to take action on behalf of NY state consumers.

AG won. NA lost.

The Court granted a permanent injunction prohibiting NA from ever including the following notice with its software:

"Installing this software constitutes acceptance of the terms and conditions of the license agreement in the box. Please read the license agreement before installation. Other rules and regulations of installing the software are: "a. The product can not be rented, loaned, or leased-you are the sole owner of this product. "b. The customer shall not disclose the result of any benchmark test to any third party without Network Associates' prior written approval. "c. The customer will not publish reviews of this product without prior consent from Network Associates, Inc.";

The injunction also prohibits NA from "including any language restricting the right to publish the results of testing and review without notifying the Attorney General at least 30 days prior to such inclusion". NA was directed "to provide a sworn certified statement indicating the number of instances in which software was sold on discs or through the Internet containing the above-mentioned language in order for the court to determine what, if any, penalties and costs should be ordered."