A Vista of Licensed Censorship

Let’s say you get Windows Vista sometime next year and, after using it a bit, decide it really sucks wind compared to other operating systems like Linux or the Mac OS. Can you tell your friends, family, or your blog readers about your comparative findings? Well, before you do, you will at least have to check what Microsoft’s web pages say about just what kind of Vista criticism Redmond is allowing at that moment in time.

It is actually quite heartening to see the rather intense debate that has already begun since Microsoft posted the Windows Vista EULA last week. (To see the EULA for yourself, go to Microsoft’s EULA page and search for Windows Vista.) Restrictions on license transfers that did not exist in the Windows XP EULAs, some ham-handed attempts to deal with the tricky licensing issues posed by virtualization, and some very scary language regarding Microsoft’s invasive anti-piracy rights have already been discussed in several forums. But I think the most horrific term is one that will at first probably strike most watchers of Microsoft licensing as being a step in the right direction.

According to Microsoft’s website, the EULA for the home version of Windows Vista will contain this provision:

“9. MICROSOFT .NET BENCHMARK TESTING. The software includes one or more components of the .NET Framework 3.0 (“.NET Components”). You may conduct internal benchmark testing of those components. You may disclose the results of any benchmark test of those components, provided that you comply with the conditions set forth at http://go.microsoft/fwlink/?LinkID=66406. Notwithstanding any other agreement you may have with Microsoft, if you disclose such benchmark test results, Microsoft shall have the right to disclose the results of benchmark tests it conducts of your products that compete with the applicable .NET Component, provided it complies with the same conditions set forth at http://go.microsoft.com/fwlink/?LinkID=66406.”

At first glance, this censorship clause seems less onerous than the ones Microsoft has used in server and language products in the past. Those terms required users to get Microsoft’s written permission before publishing any benchmarks involving the .NET Framework, which the Vista EULA does not do. And, if you go to the cited page, the “conditions” that Microsoft sets forth seem fairly reasonable. For the most part, they are things that any serious publication or testing lab would do as a matter of course before publishing benchmark results in any case, so what’s the harm?

Well, for one thing, this isn’t the EULA for a product like SQL Server or Visual C++ in a category where Microsoft and its competitors have been using censorship clauses for years. Windows Vista Home is going to be as consumer-level a software product as you can get, so this provision will apply to the average user. The only comparable use of a censorship clause in the EULA for a major consumer product that I know of was the McAfee VirusScan clause that was not only invalidated but deemed a consumer deception by the New York courts.

But the bigger problem is the fact that the actual censorship restrictions for Windows Vista are, in classic sneakwrap fashion, dependent on what a particular webpage says at a particular moment. That in itself could have a chilling effect on what people can say about Vista. Consumers who don’t even know what .NET Framework is will, if they want to make sure any public statements they make about Vista “comply with the conditions” of Microsoft’s license, have to first decipher what that webpage means. And, of course, Microsoft could change the conditions at any time, so you’ll have to check back anytime you make any more comments about Vista. Perhaps as written now it’s OK for you to tell your neighbor over the back fence that Vista seems to take twice as long to boot up as MacOS XI, but what if Redmond changes the conditions at some point in the future to prohibit such activities?

And the conditions as Microsoft states them now could inhibit legitimate benchmarking, particularly the requirement that the testing “be performed using all performance tuning and best practice guidance set forth in the product documentation and/or on Microsoft’s support Web sites, and uses the latest updates, patches, and fixes available for the .NET Component and the relevant Microsoft operating system.” I can imagine any number of scenarios where one might legitimately want to test a version of Vista that hasn’t been updated and performance-tuned to an unreal-world degree.

Just by way of example, what about a security researcher who a year or so from now wants to compare the buffer overflow vulnerabilities of the original version of Vista with the inevitable SP1? Under Microsoft’s rules, the researcher could not make public the results of the older version of the software. And if you think it highly unlikely Microsoft would actually object to the benchmarks in such circumstances, think again. In 2001 Microsoft came down on an independent lab that was about to go public with performance benchmarks comparing Windows NT and Windows 2000 (). Since neither the NT or Win 2000 EULAs had censorship clauses at the time, Redmond even went to the extreme of invoking the clause in SQL Server, since it was used in the lab’s tests.

The biggest problem of all though is that, if Microsoft has the right to put even the mildest of restrictions on a consumer’s rights to comment on their products, why can’t a carmaker or an appliance manufacturer have a censorship clause hidden somewhere on their website? There is nothing is copyright law that gives software publishers the right to restrict the rights of their customers to criticize their products – in fact, the McAfee case suggests it might actually qualify as abuse of copyright. Who knows, perhaps we’ll have to thank Microsoft for giving us such a clear vista of what unfettered licensing restrictions are doing to consumer rights.

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