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Not So Free Speech

Some consumer groups argue that the most restrictive EULA clauses violate users' right to privacy and, potentially, their right to free speech.

Microsoft again came under fire last year when it clashed with techie news site Slashdot over criticism Slashdot readers posted there after Microsoft released part of its Windows 2000 specification on the Net.

Microsoft demanded that Slashdot remove the posts, arguing that the comments--some of which contained the specification--constituted a violation of 1998's Digital Millennium Copyright Act, as well as a breach of the confidentiality agreement on which Microsoft had conditioned the spec's original Net release. Slashdot protested, encouraging its users do the same, and Microsoft backed down.

Critics say strict enforcement of agreements like Microsoft's would make it all but impossible for users to grouse about software publicly.

Microsoft is not alone in adopting contract clauses that may serve to muzzle critics. Vergil Bushnell, e-commerce analyst for the advocacy group Consumer Project on Technology, points to a particularly aggressive clause in the TOS for a recent version of Network Associates' McAfee VirusScan. According to Bushnell, the TOS language "would presumably prevent users--or journalists--from publishing benchmark tests or reviews of the software without prior permission from [Network Associates]." As a result, at least one publication has declined to review it.

Lisa Citron, manager of retail marketing at Network Associates, says the company is revising the TOS for the launch of its newest Office Utilities. She says Network Associates has had problems with people publishing product reviews and tests that misrepresented the product. The company's only goal, she explains, is to ensure that anything published has accurate and up-to-date information on the product's capabilities.

The CPT's Bushnell charges that UCITA's unclear provisions give companies free rein to craft egregious EULA terms. UCITA's drafters, he says, "adopted nebulous standards, rejecting more-specific language that would have ruled out contractual restrictions on free expression."

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• EULA,
• Uniform Computer Information Transactions Act,
• UCITA,
• license agreements,
• product liability