New York State Files Suit Against Network Associates

[R. A. Hettinga]

http://www.nytimes.com/2002/02/08/technology/08VIRU.html?todaysheadlines=&pagewanted=print




February 8, 2002

New York State Files Suit Against Maker of Software

By MATT RICHTEL

he State of New York said yesterday that it had sued Network Associates
(news/quote), a maker of antivirus software, accusing the company of
restricting free speech by forcing consumers and journalists to get
permission before publishing reviews of its products.

The lawsuit, filed in State Supreme Court in Manhattan, takes issue with an
admonition that Network Associates printed on its Web site and on software
disks. It warned: "The customer will not publish reviews of this product
without prior consent from Network Associates Inc."

The lawsuit says the warning appeared on Web pages along with downloadable
versions of software and on hundreds of thousands of disks from Network
Associates, a public company based in Santa Clara, Calif., whose products
include McAfee Virus Scan.

Eliot L. Spitzer, the attorney general of New York, said the clause
constituted an effort by the company to censor consumers and to "inhibit
itself from criticism and commentary that is the essence of the free
market."

The lawsuit seeks financial penalties, though Mr. Spitzer said what he
really wanted was to see the practice stopped. He also wants to send a
message that such "censorship clauses" violate the First Amendment and are
unfriendly to consumers, he said.

"Imagine if Ford had these clauses," Mr. Spitzer said. "Nobody would have
been able to criticize the Pinto."

Kent Roberts, the general counsel for Network Associates, said yesterday
that he planned to fight the lawsuit, and he said "the company has not done
anything wrong." The terms of use are a matter between the consumer and the
company, Mr. Roberts said, and the firm had "the right to set the terms of
its license."

But Mr. Roberts said that the company did not intend to prevent consumers
from writing reviews. Rather, he said, the company sought to prevent
customers from writing reviews of outdated versions of the product and to
encourage them to get the latest releases before publishing a review.

The company routinely improves its software and updates it so it can
recognize new viruses.

In the last two months, Mr. Roberts said, the wording of the warning has
been changed.

New releases now tell customers not to publish "tests regarding this
product without first verifying with Network Associates that you possess
the correct product for the test." The statement goes on to warn that a
failure to do so could constitute "misrepresentation or deceptive practice."

But Mr. Spitzer said the company did in fact seek to inhibit reviews. His
office has obtained e-mail exchanges from 1999 sent between Network
Associates and a reviewer for Network World, an online trade journal that
reviews software, and the lawsuit contends that in the e-mail exchanges,
Network Associates sought to have a "retraction/correction" to a review of
its Gauntlet firewall software on the basis of what Mr. Spitzer termed the
"censorship clause."

Mr. Spitzer said the lawsuit underscored a larger issue. His office is
investigating the user agreements published by several other companies, Mr.
Spitzer said, though he declined to say which. He said that if officials
did not act, "other companies will shortly follow suit" and include similar
restrictions.

James A. Guest, president of Consumers Union, a nonprofit group that
publishes Consumer Reports magazine, said editors there could recall
several similar examples of such user agreements issued by companies. But
he could not remember the names of the companies or recall any attempts
made by companies to use the agreements to censor reviews.

But Mr. Guest said the lawsuit against Network Associates would be
extremely important in preventing more companies from adopting such
clauses, which he said could be a "real loss for consumers."

Shares of Network Associates were down $1.53, or nearly 6 percent, to $25.14.



-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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