N.Y. accuses software maker of censorship

By David Becker, Staff Writer

CNET

February 7, 2002

The suit, which focuses on antivirus and firewall software sold by the company's McAfee subsidiary, centers on a "censorship clause" included in documentation presented to customers who download software from McAfee's Web site or use certain versions of package software. The clause says customers cannot publish product reviews or results of benchmark tests without permission from the company.

Attorney General Eliot Spitzer maintained those provisions restrict constitutional rights to free speech. "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 said in a statement.

While Network Associates is based in Santa Clara, Calif., consumers in New York were harmed by the restrictions, making the case appropriate for that jurisdiction, said Brad Maione, a spokesman for Spitzer's office. "It was readily available software, and people all over were affected by these restrictive covenants," he said. "We're the ones who decided to bring a case."

The suit, filed with the state Supreme Court in New York, cites a case in which Network Associates allegedly used the "censorship clause" to try to force online and print magazine Network World to retract a negative review of McAfee's Gauntlet firewall software.

Kent Roberts, executive vice president and general counsel for Network Associates, said the language in question was intended to ensure that reviews and benchmarks of the company's products, which are frequently updated, reflect the current version.

"We were concerned and continue to be concerned that the customers get the best available information when they are going to make a buying decision," Roberts said. "Some reviewers...would grab the old version of a product and review it and compare an old version of our software with a current version of a competitor."

Roberts said the license language has since been changed to be more of a request than a demand for reviewers and testers to ensure their software is current. But he said Network Associates was within its rights even with the original language.

"As far as their First Amendment argument...the First Amendment applies against government actions," he said. "In the software world, you define in your license the end user's right of use. It's perfectly appropriate to say, 'In the context of a review, come talk to us.'"

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