
Dear Ad Networks - edward
http://joeyh.name/blog/entry/Dear_Ad_Networks/
======
jannes
Is there any context here? I know about the new Intel microcode license, but I
still don't get it.

~~~
JD557
It's a joke.

Since you "can't benchmark" the new Intel patch, ad networks would need to
block that IP range, therefore OP would never see ads. Ad-blocking at the
legal-level.

~~~
aequitas
It still doesn't make sense, how does this guy publishing benchmarks of Ad
networks servers, violate their agreement of them not publishing benchmark
results?

~~~
theandrewbailey
> You will not, and will not _allow any third party_ to ... (v) publish or
> provide any Software benchmark or comparison test results.

[https://perens.com/2018/08/22/new-intel-microcode-license-
re...](https://perens.com/2018/08/22/new-intel-microcode-license-restriction-
is-not-acceptable/)

------
ChuckMcM
A nice hack but one which I doubt will affect anything. Like those "click
wrap" license hacks that people put in their email to companies that say "by
responding to this email you grant me a non-exclusive right to use any of your
products in perpetuity." which they send to a customer support portal or some
such.

------
slaymaker1907
I love this. I think the proper way at this point to combat these ridiculous
anti-benchmarking clauses is through civil disobedience.

------
textmode
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...](http://www.eweek.com/c/a/Application-Development/DB-Test-Pioneer-
Makes-History/)

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."

------
glitchc
How can I help?

