Microsoft license agreement

Andrew C. Greenberg werdna at mucow.com
Thu Jul 4 04:49:57 UTC 2002


Treading heavily on the notion of "fair use" only invites courts to peer 
deeper to find reasons not to enforce a license.  Benchmarks, like movie 
reviews, are PRECISELY the sort of thing for which one does not require 
a license in order to reproduce (use) or make derivative works from the 
work.  Yes, of course, movie critics do a terrible job of evaluating 
movies, and it would be far better to prevent them from using content of 
the film in the review to preserve against spoilers.  But the Congress 
already decided that wasn't a good idea, and provided express preemption 
provisions in the Copyright Act to prevent States (and hence private law 
arising from state-enforced contracts) from messing with that.

On Wednesday, July 3, 2002, at 01:41 PM, David Buck wrote:

> Jarvis, Robert P. (Contingent) wrote:
>
> When installing YAMSP (Yet Another Microsoft Security Patch) today I 
> noted
> the following in the End-User License Agreement:
>
> 	* You may not disclose the results of any benchmark test
> 	of the .NET Framework component of the OS Components to
> 	any third party without Microsoft's prior written approval.
>
> Golly, I *knew* I'd find a reason to load .NET...  :-)
>
>
> There is a similar clause in the Cincom license agreement:
>
> 5.3 Licensee shall not transfer or otherwise disclose (i) the Products, 
> (ii) any associated programs derived or developed from the Products, or 
> (iii) the results of any benchmark tests run on the Products, without 
> the prior express written approval of Cincom.
>
> It sounds like a pretty standard clause.  I must say, that benchmarking 
> is very tricky business and comparing apples to apples is hard. I don't 
> blame these companies for not wanting benchmarks posted by people who 
> don't understand how to write good fair benchmarks.
>
> David Buck
> Simberon Inc.
> www.simberon.com
>
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