Spitzer Sues Software Developer To Protect Consumers' Free Speech Rights

Attorney General Spitzer today announced that the State has filed a lawsuit against computer software developer Network Associates that seeks to put an end to speech restrictions that the company has placed on its software users. Network Associates, a California company, owns McAfee software, and is a major developer of anti-virus and firewall programs.
For several years, the company has informed users that they are prohibited from publishing "product reviews" or "benchmark tests" without the company's permission. These restrictions appear on the software diskettes, as well as the company's web site, from which consumers download software.

The Attorney General's suit alleges that such clauses -- legally known as "restrictive covenants" -- are illegal, and that they harm the public by censoring discussions of a product's flaws and defects. For instance, the suit describes an instance in which Network Associates demanded a retraction of a negative review published in the online and print magazine Network World - citing a clause on Network Associates' web site that prohibited product reviews without the company's consent.

"It is unconscionable that a reputable software developer such as Network Associates would seek to chill and censor public speech and debate about its products," said Spitzer. "It would be unthinkable for an automobile manufacturer to use a contract to preclude drivers from criticizing their cars, or to bar automotive magazines from pointing out product defects. By filing this lawsuit we are seeking to hold software developers to the same standard."

Spitzer's suit also alleges that the clauses infringe upon consumers' and the media's freedom of speech and fair use rights under copyright law. It contends that by informing software users that the speech restrictions are justified under existing "rules and regulations" - even though no such rules or regulations really exist -- the company also committed an unlawful deceptive practice.

Among those who welcomed the filing was Consumers Union, the non-partisan, nonprofit publisher of Consumer Reports. "Private companies must not be permitted to stifle the First Amendment rights of consumers and publishers who buy their products," said CU's President and CEO, Jim Guest. "Consumers, consumer organizations, and publishers have every right to independently evaluate software products and discuss their findings and reactions publicly. These licensing agreements show blatant contempt for consumers and the very notion of free speech and a free and independent media," Guest said.

The suit also earned praise from Stanford Law School's Lawrence Lessig. "This is an extraordinarily important case for the New York AG to bring," said Lessig, author of the recent book "The Future of Ideas." "It sets a clear principle for the digital age -- that contracts will not be allowed to defeat important public policy, especially free speech. If software manufacturers don't want their customers criticizing them, they should make good software. In America, and especially in New York, we don't use the law to silence critics."

The restrictions that the Attorney General is challenging appear on the face of Network Associates' software diskettes, which are commonly sold at retail locations and through the mail. They also have appeared on the company's web site. The Attorney General's suit seeks to prevent enforcement of any clause restricting criticism or product reviews of the company's software, as well as costs and penalties for the company's conduct.

"Whether the subject is political debate or debate over what software to buy, we must protect free and open speech from intimidation in order to preserve the public's right to information," Spitzer stated. "After all, there will be little benefit to living in the Information Age if language contained in product packaging can limit citizens from participating in vital exchanges of information."

The case is being handled by Ken Dreifach, Chief of Spitzer's Internet Bureau, assisted by Internet Investigator Vanessa Ip.

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