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   Re: [xml-dev] Benchmarking forbidden?

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From: "Tim Bray" <tbray@textuality.com>
> Derek Denny-Brown wrote:
> > Adding no-public-benchmark clauses to the EULA is something largely
> > beyond the control of the Msxml team.  As to be expected in a large,
> > conservative company like Microsoft, the default is locked down,
> > raise-your-hand-to-visit-the-restroom type wording.  Anything else
> > requires jumps through flaming hoops of legalese.  The clause is there
> > to avoid the classic problem of people disregarding all published
> > best-practices, and write a test which shows that the product is X times
> > slower than some other product, i.e. it helps protect against overly
> > contrived benchmarks.
> This is *no* excuse.  What a complete utter unmitigated atrocity. -Tim

In a related case, McAfee/Network Associates was sued by Attorney General
Eliot Spitzer, New York, U.S., alleging consumer fraud because McAfee's
anti-review, anti-benchmark language misled consumers as to their rights.
The case was filed with the state supreme court Jan 10, 2003 and AFAIK is
still pending. The suit asks for an injunction to stop the misleading claims
(McAfee has offered to change the language to a mild request that people ask
the company if they have the latest version before publishing reviews) and
monetary damages. I'm guessing if Spitzer prevails, this will have a
dampening effect on such language in the future. This seems like a case that
folks who feel as you do should watch, as your local prosecuter wherever in
the world might like to pick up some easy money and free publicity suing



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