Is it OK for Microsoft and others to forbid disclosure of benchmark results?

[James Edgar Twilley]

If the EULA is a contract, it is voided at the point of purchase if you have to
pay for the product before you can read the license.  This makes the transaction
an outright sale.

DCT Jared Smith wrote:

> > Man I just looked at this for the first time today.  What this ignores is
> > the fact that you can not sign away basic rights granted by the
> Constitution
> > in an agreement. This is clearly an obstruction of freedom of speech.
>
> A point of clarity might be made here: In truth, contracts are a way to
> specifically limit rights which are given to you by the Constitution. If you
> are under contract not to speak about a certain topic, no 'freedom of
> speech' clause in the Bill of Rights will intervene in your behalf.
>
> For the duration of the contract, you are liable to its terms: a contract is
> called 'private law' and while there are certain rights which can never
> be taken away (where those begin an end changes over time and has a
> lot to do with how informed about their rights a jury is), contracts simply
> are a way to take away rights for a duration. It's a good reason to be
> very careful about every contract you enter. The point that a shrink-wrap
> contract may not be valid, is a good one.  But the point that a contract
> cannot take away rights?  Sorry. If that is true, what is the purpose of a
> contract?
>
> Think about it. IANAL, but ICRTFM; it's all public-domain.
>
> Here's some legalese, from www.law.cornell.edu:
>
> <snip>
>
> Contracts: an overview
>
> Contracts are promises that the law will enforce. The law provides remedies
> if a promise is breached or recognizes the performance of a promise as a
> duty. Contracts arise when a duty does or may come into existence, because
> of a promise made by one of the parties. To be legally binding as a
> contract, a promise must be exchanged for adequate consideration. Adequate
> consideration is a benefit or detriment which a party receives which
> reasonably and fairly induces them to make the promise/contract . For
> example, promises that are purely gifts are not considered enforceable
> because the personal satisfaction the grantor of the promise may receive
> from the act of giving is normally not considered adequate consideration.
> Certain promises that are not considered contracts may, in limited
> circumstances, be enforced if one party has relied to his detriment on the
> assurances of the other party.
>
> Contracts are mainly governed by state statutory and common (judge-made) law
> and private law. Private law principally includes the terms of the agreement
> between the parties who are exchanging promises. This private law may
> override many of the rules otherwise established by state law. Statutory law
> may require some contracts be put in writing and executed with particular
> formalities. Otherwise, the parties may enter into a binding agreement
> without signing a formal written document. See ' 110 of The Restatement.
> Most of the principles of the common law of contracts are outlined in the
> Restatement Second of The Law of Contracts published by the American Law
> Institute. See Restatement (Second) of Contracts. The Uniform Commercial
> Code, whose original Articles have been adopted in nearly every state,
> represents a body of statutory law that governs important categories of
> contracts. The main Articles that deal with the law of contracts are Article
> 1 (General Provisions) and Article 2 (Sales). Sections of Article 9 (Secured
> Transactions) governs contracts assigning the rights to payment in security
> interest agreements. Contracts related to particular activities or business
> sectors may be highly regulated by state and/or federal law.See Law Relating
> To Other Topics Dealing with Particular Activities or Business Sectors.
>
> In 1988, the United States joined the United Nations Convention on Contracts
> for the International Sale of Goods which now governs contracts within its
> scope.
>