Judge: Drop Speech Ban

New York State Attorney General Eliot Spitzer filed the suit last year contesting the restrictions, which ban customers from publishing product reviews or benchmark tests without the vendor's permission.

The restrictions, which appear in the software and the company's Web site, infringe on consumers' and the media's freedom of speech and fair use rights under copyright law, Spitzer said.

Santa Clara-based Network Associates' products include McAfee antivirus software.

Spitzer said Manhattan Supreme Court Justice Marilyn Shafer enjoined the vendor from using the following language in product sales and distribution: "The customer shall not disclose the result of any benchmark test to any third party without Network Associates' prior written approval," and "The customer will not publish reviews of this product without prior consent from Network Associates."

Gene Hodges, president of Network Associates, said the suit misinterpreted the company's licensing agreement. A spokeswoman said the company plans to appeal the ruling.

"Our intention with the licensing language was to ensure that reviewers were using the latest version of our products," Hodges said, adding that the vendor had experienced situations in the past in which reviewers used old products.

Observers, however, believe the ruling will have little impact on the industry.

"A lot of vendors will have some type of restrictive language [in their software licensing agreements]. For the most part, people don't even read it," said Jim Kelton, president of SoftwareUnlimited, an Irvine, Calif.-based solution provider.

Doug Wood, partner at Hall Dickler Kent Goldstein & Wood, New York, said software licensing in general will include limitations, such as bans on software modifications, that are rarely enforced. "It is a little absurd to think you can prevent people from criticizing you or from reviewing you," he said of Network Associates.

A spokesman for Spitzer's office declined comment when asked if Spitzer planned to file similar lawsuits against other software vendors, but said the Attorney General's office is always looking out for questionable business practices.