New York sues Network Associates over license issues

IDG News Service - New York Attorney General Eliot Spitzer yesterday filed suit against Network Associates Inc. (NAI) seeking to end restrictions that he charges Network Associates places on what its customers may say about the company.

According to the suit, Network Associates' software licenses prohibit its customers from posting informal product reviews or tests without the company's permission. Such provisions, Spitzer charges, constitute an illegal "restrictive covenant" that harms the public by preempting discussion of any flaws in NAI's products.

NAI, in Santa Clara, Calif., is the parent company of McAfee, McAfee.com Corp. and Sniffer Technologies Inc.

The suit further alleges that the language in the license terms abridges both the media's and consumers' First Amendment right to free speech and their fair use rights. Spitzer's suit cites as an example a 1999 exchange between Network World magazine and NAI in which NAI, citing these clauses, demanded that Network World retract a negative review. Network World, like Computerworld and the IDG News Service, is a unit of Boston-based International Data Group Inc.

A spokeswoman for the publication said today that Network World refused to retract the review.

The suit also charges that NAI justifies such restrictions by citing "existing rules and regulations" when no such rules exist and therefore is engaging in an unlawful deceptive practice.

Spitzer is seeking to prevent enforcement of the clauses at issue, as well as recover costs and penalties from NAI. A statement explaining the move has been posted on the attorney general's official Web site.

For its part, NAI denies any wrongdoing.

"The language that is being complained of ... was designed to make sure that consumers receive the best possible information from reviewers," according to Kent Roberts, executive vice president and legal counsel for NAI.

The licensing terms were written to help ensure that reviewers would get the right products and information and then pass that information on through their reviews, he said. The language in NAI's licenses was changed about two months ago after discussion with Spitzer, though it still tries to achieve the same goal, Roberts said. The move didn't come at Spitzer's request, however, he said.

The new terms suggest, rather than direct, said Roberts, who noted that they ask reviewers to contact NAI and that they explain that reviewers risk being inaccurate if such contact isn't made.

Spitzer's office, however, disputes this claim.

"Just because they claim to have modified it doesn't make it so," said Brad Maione, a spokesman for the attorney general's office.

Staffers in the office checked the terms