
GoodData threatens our student startup with lawsuit - vilda
http://www.start2cloud.com/the-$28-5-million-backed-company-gooddata-threatens-our-student-startup-start2cloud-com-with-lawsuit.aspx
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jarrett
It appears this would be litigated overseas, but I'd like to speculate based
on sound legal principles that should hopefully apply anywhere.

I fail to see what sort of claim GoodData would bring against Start2Cloud.
Suppose, for the sake of argument, that Start2Cloud did violate the GoodData
terms of service by signing up for the purpose of writing a review. What
remedies would be available?

According to the GoodData TOS (<http://www.gooddata.com/terms-of-use>),
GoodData could terminate Start2Cloud's account. But I don't see anything about
GoodData collecting damages for something like this. So suppose GoodData does
sue for breach of contract. How can they calculate damages? How can they
demonstrate quantifiable harm arising from Start2Cloud's use of the service?

Normally, I'd expect to see a libel suit threatened in a situation like this.
But there was no mention of that in GoodData's message. Apparently, they're
basing their threats entirely on the TOS, which don't seem to offer a viable
cause of action.

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jaylevitt
Why would it be litigated overseas? The TOS explicitly state that they're
governed by US law, which (oh my!) is clear that truth is an absolute defense
to libel. So IANAL but yes, all they have is a civil claim with no stipulated
damages.

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jarrett
Based on the OP, it seems that both parties are overseas. But you're right
about the TOS. I think it could go either way.

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jaylevitt
You're right - perhaps, even though their threat letter mentions the TOS,
their legal strategy is based on the laws of their country instead (e.g. maybe
they have a libel law that's more plaintiff-friendly than the US).

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foxylad
Simply replace your GoodData reviews with a notice saying you had to take them
down after GoodData threatened you with legal action.

You are off the hook because you have complied with their demands, and
potential customers will read between the lines, and assume the reviews were
not flattering.

Assuming your site is well regarded, this will seriously hurt GoodData, and
should also stop any other vendors trying the same trick in the future.

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gala8y
I second what you say.

This fragment below struck me as a particularly bad piece of logic/causation
thinking.

"In such a case we will have to comply with the request of GoodData, which
would most likely mean the end of our business, because we will be unable to
continue in our mission of providing you with an unbiased and unrestricted
description of cloud computing services (...)."

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Revisor
Disregarding the strange EULA, why are they calling themselves _a student
startup_ , when the founders got their master's degrees 20 years ago and it's
nearer to a corporate purchase guide than a startup (as in groundbreaking,
repeatable, scalable)?

~~~
Joakal
"formed by students of University of Economics in Prague and me as their
teacher"

Not sure about other students.

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ChuckMcM
Heh, this should be 'competitor threatens lawsuit, hands over PR bonanza.'

Never fun to be threatened of course but when you can use it to enhance your
visibility, well that is kinda priceless.

~~~
nknight
I don't see how these two companies are competitors. Start2Cloud appears to be
akin to a directory or online magazine centered around providing information
on "Cloud" services from many companies.

GoodData appears to be providing some sort of data collection and analysis
services.

GoodData would just be another company/service reviewed by Start2Cloud, no?

~~~
danvideo
Yes, the point seems to be exactly that --- how ridiculous the terms of use
are which prevent a media review, acting as if they are competitors.

Why would a (seemingly) strong, funded business-startup be scared of
competitors using their service? Is their business model that precarious?

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ww520
Potential customers would be wary of overly restrictive EULA and lawsuit-happy
companies.

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EGreg
I really doubt this would be enforceable in an American court. The question
is, can a little guy with no lawyers actually win the case if a motion is
admitted by a judge?

~~~
jaylevitt
I feel like the EFF could step in here.

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rhizome
Fantastic, GoodData wants to put a nail in the coffin of clickwrap contracts.
Petard, meet hoist.

~~~
FuzzyDunlop
Are they even legally enforceable? I know at least in the UK that a contract
cannot supersede any statutory rights or existing legislation, any any
offending clause is null and void.

Not that I could name what that particular EULA infringes, but I would hope it
gets laughed out of court.

~~~
nknight
This is a really tricky legal area. There have been a very limited number of
real cases involving EULA terms like this (and I'm not sure any have been
decided at a trial), and there will be wide variability between jurisdictions.

You can, in principle, contract away your right to speak on a well-defined
subject, at least in the USA (I believe all common law jurisdictions permit
this to one degree or another). Consider NDAs, for example.

What terms like these get into, however, is a question of fairness and equity.
Terms that are almost certain to come up in common law jurisdictions are
"contract of adhesion", "unconscionability", "fair dealing", and most
importantly, "consideration".

Just skim the Wikipedia entries for those terms and you'll quickly see how
complex and subjective this gets.

~~~
rhizome
Lori Drew was acquitted on appeal where she was initially convicted of
violating the CFAA, largely through exceeding MySpace's TOU.

~~~
nknight
That's a criminal matter, there's no applicability to a civil action.

~~~
jaylevitt
Plus, an amendment has been adopted that decriminalizes acts against the TOS
(though I guess it has not yet passed the full Senate):

[http://cdt.org/blogs/joshua-gruenspecht/169senate-tweaks-
bil...](http://cdt.org/blogs/joshua-gruenspecht/169senate-tweaks-bill-terms-
service-no-longer-terms-felony)

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nohat
This is a good example of hilarious EULA terms. I imagine start2cloud would
win, but I don't blame them for not wanting the enormous hassle.

~~~
acangiano
Oracle does the same. You can't publish benchmark results without their
permission.

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cridal
This must be high in the runnig for "the stupidest EULA agreement" contest
somewhere. If it doesn't exist yet, please someone start one...

~~~
flipbrad
it's not unique on the Web:

[http://www.google.co.uk/search?gcx=c&ie=UTF-8&q=%22I...](http://www.google.co.uk/search?gcx=c&ie=UTF-8&q=%22In+addition%2C+you+may+not+access+the+Service+for+purposes+of+monitoring+its+availability%2C+performance+or+functionality%2C+or+for+any+other+benchmarking+or+competitive+purposes.%22)

~~~
westbywest
I guess I shouldn't be that surprised to see the extent to which companies
literally copy/paste their EULA's. Perhaps the silver lining is that one
instance of this contract language being rendered illegal would presumably set
a precedent that invalidates all duplicated instances of it.

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jaylevitt
Has he never heard of the Streisand effect? "Please stand by for a
demonstration of relevancy."

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dendory
I would add their ridiculous claims and threats to your review and tell them
that you just don't agree with their ToS, and as such will now stop using
their services.

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almost
Wow, how horrendously awful must GoodData's services be to require language
like that in their TOS and actions like this?

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rmoriz
"Interesting reaction" by the GoodData CEO which is also Board Member/Advisor
of the German Hackfwd incubator:

<http://hackfwd.com/people#roman-stanek>

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scotty79
So basically their EULA says: "You can use but you can't judge."

How's that even enforceable?

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TruthElixirX
Could start2cloud just say something like, "GoodData refuses to let us review
them or they threaten a law suit. We will let you draw your own conclusions
from that."

~~~
mst
You can't publish benchmarks on Amazon EC2 either. Doesn't seem to have made a
lot of difference to people that they're unable to find out whether an EBS
volume will provide better or worse I/O than, say, a consumer-grade laptop
4800rpm 2.5" drive.

~~~
chwahoo
Is this true? Has Amazon/AWS asked people to take down blogs/articles that
benchmark their systems?

