back to article Hey, Atlantis Computing. What the heck is this in your EULA?

IT business customers are thrice-stuffed “see no evil, hear no evil, say no evil” monkeys. Why? Take a look at Atlantis Computing's EULA. Get this: "Licensees will not (and will not allow any third party to) ... (iv) publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative …

  1. hplasm Silver badge
    Devil

    Pity-

    that this doesn't stop them from advertising the kit too...

    1. Warm Braw Silver badge

      Re: Pity-

      I'd have thought such terms in an EULA were a perfect advertisement - a word, that at one time, meant "warning"...

      1. Triggerfish

        Re: Pity-

        Yep you're not allowed to talk about how crap we might be, should be a good warning of their faith in their own work.

        Just start of every review that you would compare similar products, by giving them a special mention on why they won't be tested and why you cannot compare them.

        1. Yet Another Anonymous coward Silver badge

          Re: Pity-

          The same wording is in Microsoft's EULA for SQLserver and Oracle's

          1. Ken Hagan Gold badge

            Re: The same wording...

            Is it? I don't have a Microsoft EULA handy, but my memory is that they forbid disclosure of test results but the one in the article forbids *opinions* as well, which strikes me as a new low. Maybe I'm just not paying attention, in which case the entire industry can go forth and multiply without me.

  2. Pascal Monett Silver badge

    Isn't that basically already banned ?

    I thought that abusive contractual clauses were always struck down by a judge.

    That clause is clearly abusive and in contradiction with Free Speech (enjoy it while you still have it), so I doubt very much that Atlantis Computing would have a snowball's proverbial to win such a case.

    And there is precedent on this kind of manoeuver, those wacky voting machine nutcases at Diebold were shot down for exactly that, if I'm not mistaken.

    Of course, it does mean going to trial, which companies have a general tendency to not like (except Microsoft), unless the judge throws the case out altogether before accepting the case. I think they can do that, can they ?

    1. frank ly Silver badge

      Re: Isn't that basically already banned ?

      Also, wouldn't damages awarded in any legal action depend on the harm that thad been caused to the plaintiff? If a plaintiff can be harmed by the truth being told about them, perhaps the jury would decide that they didn't deserve any 'damages'?

    2. Anonymous Coward
      Anonymous Coward

      Re: Isn't that basically already banned ?

      In the UK it's *NOT* a contractual term if it is something that is disclosed after the contract has been established and is therefore not enforcable.

      Rather like shrink-wrap software EULA's which you are asked to agree to after you have parted with your consideration.

      1. TeeCee Gold badge
        Meh

        Re: Isn't that basically already banned ?

        That's all right, the comment was obviously written from a Yank perspective.

        It mentioned free speech and we don't have that over here either......

        We have the totalitarian version, the Human Rights act. This is where the government gets to tell you what your rights are rather than you having the inalienable right to stand up and tell them.

        1. Anonymous Coward
          Anonymous Coward

          Re: Isn't that basically already banned ?

          Yanks love bleating on about their precious Constitution, but it didn't do much for the "inalienable rights" of much of the population until the 1960s Civil Rights acts. It was also easily ignored during the McCarthy era, and didn't do a damned thing to stop mass surveillance.

    3. Cuddles Silver badge

      Re: Isn't that basically already banned ?

      "I thought that abusive contractual clauses were always struck down by a judge."

      The trouble is that having something struck down by a judge requires actually taking it to a judge. Not many people, or businesses, want to waste their time and money being sued in order to do so. Given the cost of even such obvious open-and-shut cases, many wouldn't be able to do so even if they wanted to. Companies can get away with abusive EULAs like this because for the vast majority of people it's simply not worth the hassle of fighting.

      Of course, that's probably what they're relying on in the first place. Even if they have no intention of ever suing anyone, as long as a few people are discouraged from giving negative reviews it was worth the ink to print it. Occasionally the Streisand effect might kick in and cause more harm overall, but how many potential customers will actually hear of this case, let alone the thousands of others that no doubt exist?

    4. Anonymous Coward
      Anonymous Coward

      Re: Isn't that basically already banned ?

      Yes and in most jurisdictions one such clause means the whole contract is null and void.

      1. Nigel 11

        Re: Isn't that basically already banned ?

        in most jurisdictions one such clause means the whole contract is null and void.

        which is why in virtually all contracts you will find wording to the effect that you agree that if any particular clause of the contract is found to be unenforcible, the rest will stand in isolation on their own merits. Whether ir not that clause (meta-clause?) is itself abusive, I have no idea.

  3. Destroy All Monsters Silver badge
    Windows

    C-level Wet Dreams Of Power (WeDrOPs) often don't match reality

    Are these things even enforceable? You can't impose random bullshit in an EULA and expect it to be valid.

    Isn't the worse Atlantis Computing (who they?) can do, annul your support contract in spiteful anger?

    Sure, they might try to sue -- and become the laughing stock of the Internet in 12h flat. Might be expensive for the receiving end of course, unless there is a clear prior case on this.

    These clauses made appearances in the mid-2000 when companies noticed that their gear might be getting a good dissing in articles and lawyers tried to solve the problem with a clause pulled out of their arse. I never heard of anyone getting sued though.

    1. Anonymous Coward
      Anonymous Coward

      @Destroy all monsters... Re: C-level Wet Dreams Of Power (WeDrOPs) often don't match reality

      Actually depending how its written and interpreted, it may be enforceable in certain circumstances.

      From the article:

      "

      Get this: "Licensees will not (and will not allow any third party to) ... (iv) publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving any Product without the prior written consent of Atlantis Computing."

      "

      Scenario 1:

      You are a customer, who's used the product. You run an internal benchmark of their product and compare it to a competitor. You then publish a blog post comparing the two...

      You could be sued. It clearly a benchmark and fits the narrow limitation of your speech.

      Scenario 2:

      You are a customer and in a blog post you complain about the company, the product's support team and the performance.

      Depending on what you said, you could be sued, however you're within your First Amendment Rights. Note, IANAL, and you can still be sued, however you would ultimately win, but you will have a 5-10K legal bill.

      The truth is that they don't want people doing quasi benchmarks which may be slanted and not use the product as intended.

      This goes back to the TPC benchmarks in the 90's ...

  4. Steve Davies 3 Silver badge

    Cue Striesand Effect in

    10..9..8..7..6..5..4..3..2..1..0

    donning my lawyer tinfoil hat...

    Please can someone get sued by a company with these terms in its EULA. Then and only then can we get this sort of crap outlawed. Just like the clauses in the Windows EULA that absolves MS of any responsivility for anything ever.

    1. Anonymous Coward
      Anonymous Coward

      Re: Cue Striesand Effect in

      well, careful what you wish for. For some it's a Straisend effect, for others - free publicity.

      1. Mark 85 Silver badge

        Re: Cue Striesand Effect in

        well, careful what you wish for. For some it's a Straisend effect, for others - free publicity.

        I thought that's what the Streisand Effect basically is.. publicity. With the corollary that any publicity is "good" publicity.

  5. Little Mouse
    Facepalm

    It must be a Thursday.

    I never *could* get the hang of Thursdays...

  6. Anonymous Coward
    Anonymous Coward

    Fighting back

    So the tech press is hobbled, literally, in finding out from customers how the products they buy perform and compare to other products.

    How about making truthful statements which don't violate these EULAs, such as :

    "We asked customers how the product performed but they were unable to give us any positive feedback"

    1. Barely registers

      Re: Fighting back

      I like that.

      "Up to 100% of customers did not say they were satisfied."

      1. Anonymous Coward
        Anonymous Coward

        Re: Fighting back

        DECLINED to share positive feedback...

    2. oiseau Silver badge
      FAIL

      Re: Fighting back

      Hmmm ...

      How about something along the lines of this:

      "As a technical review journalist with many years in the IT business, I have long ago come to the conclusion that any company that has an EULA such as Atlantis Computing's most probably markets products of dubious quality (POS) that should be avoided at all costs."

      There you go.

      Cheers.

      1. Christoph Silver badge

        Re: Fighting back

        Quite - any company that is that terrified of reports on their product must be themselves convinced that their product is of very bad quality compared to those of their competitors.

        Why would you buy from Atlantis Computing when Atlantis Computing reckon their products are dire?

      2. Anonymous Coward
        Anonymous Coward

        Re: Fighting back

        Nutanix is famous for having the exact same thing... for 5 years now.

    3. Fatman Silver badge
      FAIL

      Re: Fighting back

      <quote>How about making truthful statements which don't violate these EULAs, such as :

      "We asked customers how the product performed but they were unable prohibited by the terms of their licensing agreement to give us any positive feedback about the performance of the product without explicit permission of the product manufacturer."</quote>

      That would tell it all in a heartbeat.

  7. Anonymous Coward
    Anonymous Coward

    It could be worse ...

    For example, one very popular scientific software vendor has been claimed to ban and threaten to sue people who report timings from their software, compare the results to other packages, or even happen to write and distribute independently developed scientific software packages (including open-source freeware) in the same broad field.

  8. Frank Zuiderduin

    In practice, EULAs often contain conditions which simply aren't legally enforcable (at least in this part of the world). It wouldn't surprise me if this was one.

  9. Anonymous Coward
    Anonymous Coward

    Atlantis are a competitor, so anon.

    This is very common and it's not fair to pick on Atlantis when there are many much bigger examples you could highlight.

    Just search in all of them for the word benchmark.

    http://www.cisco.com/c/en/us/td/docs/general/warranty/English/EU1KEN_.html

    https://www.techdata.com/business/emc/files/April2015/EMC%20EULA_Software%20License%20and%20Maintenance%20Agreement.pdf

    https://hcpanywhere.hds.com/portal/public/hdsEula.htm

    http://mysupport.netapp.com/NOW/public/apbu/oemcp/apbu_lic.cgi?dest=/public/apbu/oemcp/09.01.B5.07/Linux_RDAC_0901B507_readme.txt

    http://www.oracle.com/technetwork/documentation/connectedmobilesales-ios-20130513-1952116.pdf

    https://www.veritas.com/content/dam/Veritas/docs/eulas/netbackup-dlo-6.5-eula-eng.pdf

    Won't disagree with your argument that they should be banned, but they serve a purpose.

    Imagine two vendors, Vendor E and Vendor N. Those two vendors have a product that performs roughly the same, but vendor E knows how to tune vendor N's product so that it is 50% slower.

    If Vendor N doesn't have an EULA that prevents it, then Vendor E can publicly say that Vendor N has terrible performance, 'look.. here are the results'. At least this way, the worse these vendors can do is exactly what I did here, Vendor E, N, H etc and allow the customer to infer what it means.

    1. Destroy All Monsters Silver badge

      If Vendor N doesn't have an EULA that prevents it, then Vendor E can publicly say that Vendor N has terrible performance, 'look.. here are the results'. At least this way, the worse these vendors can do is exactly what I did here, Vendor E, N, H etc and allow the customer to infer what it means.

      "If you can't stand the heat, get out of the kitchen"

      These things cannot be avoided (unless you are in an environment managed via 5-year plans), after all I could always astroturf by dissing product X pseudonymously on forums (as is done in politics, and, no I am not antisemitic) so the way to go is to go to th trade press and sponsor fair&independent comparisons.

      Trying to given customers an EULA ENEMA instead is just plain stupid.

    2. Paul Crawford Silver badge

      "Those two vendors have a product that performs roughly the same, but vendor E knows how to tune vendor N's product so that it is 50% slower."

      Don't public benchmarks serve to stop this sort of knobbling? OK they don't address the real-world if your problem is not similar to the test, but they ate least have an open set of tests that each vendor can submit their own tuning to get the best from it.

  10. This post has been deleted by its author

  11. nematoad Silver badge
    Happy

    There is precedent.

    The company involved is not an IT company but did have a similar non-disparagement clause in the Ts&Cs.

    When several former customers fought back against the gagging , the company Roca Labs had their arses well and truly kicked.

    See, even in the "Land of the Free" there are limits on how far you can go in abusing your customers.

    See here

    1. Frederic Bloggs
      FAIL

      Re: There is precedent.

      That's interesting. The company is headquartered in California and any kind of "disparagement" clause is specifically BANNED in that state (scroll to the bottom of 1670.8).

      1. ratfox Silver badge

        Re: There is precedent.

        Do I read correctly that 1670.8 allows their Californian customers to sue them for $2,500? That could be a lucrative business…

        1. Mark 85 Silver badge

          Re: There is precedent.

          $2500 is peanuts to most corporates and even to most lawyers. Now a class action suit will be big money to a law firm and also to the sued corporate. But still peanuts to the aggrieved customers.

          Where do governments come up with these low-ball fines and limits? Other than the lobbyists getting to them, of course?

  12. Chris Miller

    Slow news day?

    Many, many vendors have similar clauses. I've seen it, for example, in contracts from large companies with two-letter and three-letter names (historically, I haven't dealt with such matters for many years, but I'd be surprised if things have changed). I've no idea whether they're legally enforceable or not.

    If you ask a lawyer to produce a contract, they're very unlikely to start with a blank screen. They'll take an existing contract that's known to have worked successfully and make any necessary amendments (cf programming). That's why such things tend to get longer and longer ...

    1. Nigel 11

      Re: Slow news day?

      I recently employed an estate agent. Of the two that made the cut, one offered me a contract that was a model of clarity, and the other, pages of legalese that I couldn't even parse. Since I couldn't find any good reason to choose between them, guess who got my signature?

      I think I'm unusual. I read the small print before signing, or not.

      A song I once heard, and the words stuck in my head:

      "As through this world I wander, I've met all kinds of funny men / some rob you with a six-gun, some with a fountain pen / Yet as through this world I wander, as through this world I roam / I've never seen an outlaw drive a family from their home".

  13. matchbx
    Mushroom

    Try this on for size

    Next time you need to purchase an Atlantis Computing product, just take your 3 year old kid with you to the store. Hand them the money and let them pay for it (video document this of course). then when you get to the EULA, have them click Accept button (again video document this).

    Next review their product to your hearts content, if they attempt to sue you, just send them the videos. You're not the one who purchased it or did you accept the EULA.

    1. Yet Another Anonymous coward Silver badge

      Re: Try this on for size

      Did this once to piss of a DEC salesweasel at university.

      When they did maintenance they always insisted that we opened the CDs so that we were agreeing to the license when they installed it.

      So we got a post-doc from a former soviet republic that didn't exist anymore and was now officially stateless - we introduced him to the salesdroid and him open the CDs.

      1. Nigel 11

        Re: Try this on for size

        When they did maintenance they always insisted that we opened the CDs

        Didn't do DEC much good, did it? How many years after that did they get Compaqted?

    2. DaddyHoggy

      Re: Try this on for size

      I've pondered this very thing myself for the last few days when I discovered that my 14yo daughter had upgraded (after getting sick of the nagging) *her* (bought with her own money) Win8.1 laptop to Win10. She accepted all the T&Cs and the EULA and Microsoft know how old she is because I'm the registered adult for her MS account - because we were truthful when we set up her account and said she was only 12 (which she was at the time of original purchase) - so while I get a weekly update of what she's doing on the laptop - Microsoft neglected to tell me that it was 1) Offering a Win10 upgrade 2) that she had accepted it.

      I don't see how Microsoft's T&Cs and EULA are legally enforceable against a child, especially when it can be shown that they know how old that child is!

      1. Ken Hagan Gold badge

        Re: Try this on for size

        So ... *she's* running an unlicensed copy of Windows and *Microsoft* upgraded the machine to Win10 without legal parmission. Piracy on the one side and unauthorised hacking on the other. Let's hope the lawyers never find out.

  14. greenwoodma

    Not unusual

    Unfortunately this isn't unusual. I've seen this in the ToC's of many of the online semantic web APIs. They restrict you from publishing any evaluations or comparisons with other systems etc. It's a real pain for doing academic work as reviewers will always ask "how well does your approach compare with <insert well known public API here>" and you just have to say you'd love to tell them but you can't.

  15. Stevie Silver badge

    Bah!

    Well since every EULA I've ever read contains language expressly denying that the product you just licensed will do what it says on the box I'd say a) that the three monkey clause is redundant and 2) there are bigger fisg to fry before the software industry's legal eagles can be said to have been putbin their place.

  16. x 7

    surely in the UK the rules over "unfair contracts" would kick in. Trading Standards would be highly interested

    1. Anonymous Coward
      Anonymous Coward

      Businesses are not covered by that, because the expectation is any contract you would have validated by a lawyer.

      The Unfair Contract Terms Act 1977 applies only to liability arising in the course of a business. It does not therefore provide comprehensive protection against unfair terms.

      However, a consumer, you should really quote the:

      Unfair Terms in Consumer Contract Regulations 1999, which actually come from an EU directive to extend consumer protection.

  17. Shadow Systems Silver badge

    Just ask a U.S. Californian to do it.

    As Frederic Blogg said above, California has already declared such clauses unenforceable, so hand one of us the money, ask us to buy the product, & we'll happily send back an exquisitely, excrutiatingly, epicly detailed report of every flaw, hiccough, UI derrangement, data losing, privacy screwing, Streisand Effect worthy bit to report. We won't mind, especially since it'll mean getting to twist the knife in their guts over a product that they can't stop us from reviewing.

  18. Roger Kynaston
    Coat

    The first rule

    The first rule about EULA is that you don't talk about EULA.

    I'm off. Got an office party of all things.

    1. This post has been deleted by its author

  19. Anonymous Coward
    Anonymous Coward

    I think the bigger issue here is not the EULA, but the fact that Atlantis had a very unhappy customer, they didn't make it right, the customer got pissed and blogged about the experience, and only at that point did Atlantis actually react and it wasn't focused on making the customer happy, but focused on making him shut up.

    1. Anonymous Coward
      Anonymous Coward

      Well....

      possibly, but as the complaint is not visible to all it is not possible to tell if in fact Atlantis were or were not doing all they could to help. The issue may not have been anything to do with not making it right. This is the problem with blocking such a thing, everybody jumps to conclusions, mostly incorrect ones.

      1. erniescar

        Re: Well....

        I was lucky enough to see the customer blog before it was pulled. It's a very interesting story that unfortunately is no longer available to those reading this article

  20. nautica

    A real CRISIS is what we have here...

    What we have here is a crisis of creativity.

    It is somewhat mind-numbing that all you creative Reg-types can’t see the ridiculously simple solution to put these as*-holes in their proper place. How’s this for starters: assume I’M writing a review on an Atlantis device, their high-handed attitude has really pissed me off, and I’m aware of all the ramifications of their EULA [review follows]--

    “What follows is a review of the Atlantis Computing Model ZZZ. It is not a ‘normal’ review, because of Atlantis’ high-handed and totally-beyond-the-pale EULA. ALL readers are urged to review Atlantis Computing’s EULA regarding their products for further enlightenment.

    “A few notes before getting started: (1) all information is strictly hearsay; (2) I do not own, nor do I have I in my possession, nor will I ever have in my possession any Atlantis Computing product; (3) there exist no written records of any alleged discussions I may possibly have had with any alleged owners of any Atlantis Computing alleged product.

    “It seems that the general consensus of opinion, based on memories of discussions held with people who may or may not have any knowledge of Atlantis Computing product, and this product specifically, is that Atlantis Computing products are, in general, pieces of sh*t. Aside from this slight technical detail, one is urged to deem this product worthy of one’s consideration when it comes to buying a piece of sh*t.

    “On a POS scale of five stars, Atlantis Computing’s equipment rates five stars.

    “Takeaway: you can’t get a more complete POS!”

  21. x 7

    just looked them up. They sell cloud services, no wonder they don't want anyone to evaluate them. It'd be a bit like the emperor's new clothes - we all know cloud services are a pile of bollox, but everyone is too confused to say it. All it would take is for someone to say the truth and the ass will drop out of the market

  22. Numen

    I've asked vendors why, and they say they're protecting themselves against users who don't know how to use their product, run a benchmark, or tune it properly. They publish their own benchmarks, because they know how to use their products. Of course, they can't publish benchmarks of their competitors products, but you can bet they run them (even if the EULA says they can't).

    So when we see an ad about performance, it refers to a competitor's published benchmark.

    Of course, unless you run benchmarks as your company's workload, a benchmark isn't really all that useful anyway.

    1. Allan George Dyer Silver badge

      "So, you're telling me you products are difficult to use, difficult to tune, and you don't provide easy-to-access user support? You'd rather shut up a customer with problems than listen to him."

      1. Anonymous Coward
        Anonymous Coward

        Benchmarking is an art and a science. For example, if you know the underlying block size of a given architecture you can tune your benchmark run to show the worst possible result.

        One example, do 4K writes offset by 1K. IOMeter will let you make that tweak in about 2 seconds. You'll find most arrays are forced to do 8KB writes, so performance will be poor but nothing visible will show that the benchmark is the culprit.

        Or if you know the cache size of RAM in the array, show a 100% random read workload that just happens not to go outside of the cache. Now before anyone crys foul, what is the acceptable cache miss rate? Overcommit by 100% (so 2x RAM?) 10x? 100x? No standards here... so you get the result you want .

        Another example is single threads vs. multiple. One thread will have you up against Little's Law. How many is the right number though?

        People doing benchmarks understand the need for long ramp up times, extended (24+ hour) benchmark runs, repeatability tests. They'll understand how to make sure that cache is and isn't the overriding factor.

        And they'll know how to interpret the results they're seeing.

        1. Anonymous Coward
          Anonymous Coward

          Reminds me of a certain hyperconverged vendor who tried to convince me they would make an excellent Splunk platform and threw white papers across with their reference architecture and SplunkIt results. Looking at the detail, the standard SplunkIT index of 50GB of data was used which would entirely fit within the SSD tier and not have to touch the spinning rust. No convincing answer from their pre-sales folks when challenged this would be in now way representative of a true enterprise deployment for multiple TBs of data.

  23. ATeal

    Nice one ElReg

    Like EA need ANY more ideas.

  24. Adrian 4 Silver badge
    Mushroom

    In related news

    It's pretty common for legal spats to end in secret agreements that don't admit to fault by either party. I'd like to ban those, too.

    1. Anonymous Coward
      Anonymous Coward

      Re: In related news

      And how many people reading this cannot say anything derogatory about a former employer, or even suggest in passing that the former employer might have paid them for an agreement to this effect?

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