Hacker News Reader

Comment by johnklos | Hacker News Reader

I'm really curious how Intel could even imagine this is enforceable. For instance, if I have a server with shell access for many users, am I supposed to forbid my users from publishing benchmarks? If they do, am I liable since I "agreed" to the license? Or are they, even though they never "agreed" to the license? It just doesn't make sense.

View on HN

Well the license specifically says you will not permit a third party to either.

I don't really speak legalese, but does permit include having to then make all of your own users agree not to to avoid a penalty?

As mentioned in the other comment thread though, I imagine the reality of this clause is to prevent media outlets (such as Phoronix who would traditionally do exactly this kind of benchmarking) from downloading the microcode and publishing numbers directly.

> Well the license specifically says you will not permit a third party to either.

That might as well read as "you can't provide cloud computing" since you can't know what someone is going to execute on their server before they execute it!

And nobody releases production code to a cloud environment without performance testing of significant changes.

You could say they don't have to publish the results... Although it only differs the problem. If I build my SAAS on top of a cloud service that runs on Intel, and my customer complains about perf results of my software before and after, and makes the result available somehow (knowing that it's on updated microcode or not), who is responsible ? The cloud provider, myself, or my customer ?

Etc etc. This is a legal mess and a strong attack on freedom.

Not only that but standard development processes involve testing code against different environments.

Comparing arbitrary code execution times on this platform versus another could easily be called 'benchmarking'.

It's just so strange to sell a general purpose processor but then prohibit certain types of code depending on the state of mind of the developer. The same block of code could be permitted or prohibited based on the intent. It's nuts and a legal morass that is hard to imagine any lawyer proposing as a good idea.

> I don't really speak legalese, but does permit include having to then make all of your own users agree not to to avoid a penalty?

As a service provider, you will need to inform your existing users about this restriction and put the restriction in your user agreement for new users. After that you can relax, if any of your users publish benchmarks, you'll have to warn the user and then take the benchmarks out. You don't have to actively search for violations, but if you notice one on your own, or you get notified (for example via email), you'll need to take it down.

If we're not allowed to share the results of benchmarks and comparisons, the only action that comes to my mind is:

1) Never buy Intel again, if presented with a viable choice!

2) Prepare and share ready-made benchmarking live USBs/utilities, so people can see the horrors Intel has caused them without violating the license.

3) Dump benchmarking results online from countries, where the Delaware courts mentioned in the article has no jurisdiction upon.

4) Get every copy of this microcode license prepared for different countries, sue the license in each of them, and have Intel struggle with it.

5) Publish the benchmarks, dare Intel to sue. Make fun of them for publicity. May be a reasonable and cheap way to get some publicity for a startup. Obviously requires a deeper assessment due anyone looking into it...

Surely it's just designed to scare the big media websites from publishing numbers.

This is censorship, plain and simple. They cannot command everyone to abridge their speech, even if their license terms say so. It is unenforceable and illegal.

It's also crazy to my mind. The reality is these various issues are all having potentially significant impacts on performance -- and it's not just the microcode related changes, but also the kernel changes, etc. It is kind of ridiculous to require everyone to do their own testing and not allow basic numbers to be published.

I also find it fascinating in that in theory your BIOS update can include these changes.. does this anti benchmark license apply if you reflash a new BIOS or just buy a new motherboard with the new bios and then use the same type of CPU to compare?

Makes me want to look at some BIOS and motherboard EULAs now...

This is a very good point. What about replacing a motherboard (but not CPU) due to motherboard failure or just to get some extra feature or other? If the new BIOS includes the microcode updates are you legally forbidden from benchmarking your old CPU?

Very good point. I'd like to add that this is not just kind of ridiculous, it is just plain ridiculous. Also, we have the right to publish any benchmark numbers, not just basic numbers. This isn't a time for weak wording.

I mean, they can probably say whatever they want, but this is not a legal thing - all they can do is refuse to sell you more hardware for violating their contract.

NDA's are legal right? This is like a permanent NDA. I wonder if people can refuse to download the microcode because of the license, and then sue Intel for the vulnerability. I'm thinking probably not.

Might want to get your next chips from AMD.

Given that the dissenting justice for "TransAm Trucking v. Administrative Review Board" is now on the supreme court, I'm thinking contracts will indeed supersede protections (unless every possible permutation is explicitly enumerated in legislation as if forever battling the "literal genie").

They also basically sold a defective part, and to fix it you have to agree to something additional post-sale. That is pretty damn questionable.

It wouldn't work. Even online media gets pretty strong first amendment protections that mean Intel wouldn't have a complete open and shut case, and we tech journalists are smart enough to be able to get the same microcode updates through other channels that don't have the same strings attached. If it's meant to deter anybody, it's the big corporate customers and competitors.

Unfortunately, the First Amendment does not protect against private action, only government restraints on speech. Other mechanisms like anti-SLAPP laws might help with that, but either way that's a lot of legal effort to publish some benchmarks. Intel also operates all over the world, so they could eg. sue a Britain-based branch of some media outlet that also publishes the numbers if the laws there are more in their favor.

The First Amemdment itself doesn't directly apply to Intel, but there are a lot of relevant legal protections pertaining to the general idea of protecting the press. In particular, this seems to be fundamentally a copyright license that's at issue. News reporting, scholarship and research are all explicitly listed as purposes that can qualify as fair use. Using copyrighted material to research and report on the nature of defective goods being sold to the public strikes me as pretty likely to be ruled as fair use, especially when using the copyrighted microcode in a manner contrary to Intel's license is necessary to properly fact-check a news story about their processor flaws.

Online media often relies on hardware directly from the manufacture when they get to test it before official release.

Nothing stops Intel from not sending them anything anymore, and then they have to buy it from the stores like everybody else.

I'm well aware of the theoretical possibility of Intel blacklisting publications. In practice, it only works against smaller publications and would backfire spectacularly if they tried it against the larger publications. Intel has more to lose than any one tech publication.

> Intel has more to lose than any one tech publication.

I agree completely, but I wouldn't be surprised if waive threats of lawsuits around. And even though the media should be protected, it might still be relatively expensive for them.

The license can't restrict third parties from sharing benchmarks, which is why it puts the onus on the user not to allow third parties to share them. If some news site was to publish benchmarks without disclosing the source, Intel would first have to take them to court to force them to disclose who provided said benchmarks. That's as far as I can see it directly impacting sites that don't run their own benchmarks. That said, the sites that do run their own benchmarks would be on the hook. Sadly, even if this is unenforceable, the potential legal battle to have it declared so would be scary enough to quash some criticism.

This really makes me doubt if I should buy Intel products in the future (to the extent that I have a choice). If I can't get performance information because Intel has something to hide, I'll have to look elsewhere. Really, this is sufficiently distasteful behavior to make me avoid Intel even if the products work just fine.

> Sadly, even if this is unenforceable, the potential legal battle to have it declared so would be scary enough to quash some criticism.

I have seen this happen in so many cases all over the world. Supreme Court orders can be ignored by the government agencies and even private parties as long as no one drags them to court. Spending a 100 million dollars is nothing for the government or influential private parties as big as Intel. The small guy, however, will be bankrupted.

Be it the government or the big corporate, it is effectively the public money being used against the public. How absurd.

This shows that money is necessary for justice. This is dangerous.

Why can we not have systems that detect such frauds and automatically discipline such entities? It is not like such violations are happening behind closed doors of a small house in an inaccessible jungle. These violations are public.

This becomes doubly interesting once those users are in a different jurisdiction. I highly doubt a EU court would be willing to uphold such a bullshit term for a US company. Especially since many EU countries have quite strong laws against unexpected/unreasonable licensing terms.

I'd rather assume that it is in place to keep kernel and distro devs at bay.

Has anything even remotely similar to this ever been enforced anywhere? (Apart from the US)?

Once I have the application (or in this case, the microcode) it would seem the data I produce with it is mine to do as I please with? Otherwise it would be like microsoft saying that I couldn't publish any .docx files online that I produced with their software?

I would guess this is designed to Target tech news orgs who report benchmarks. Can't prevent every forum post; media is a bigger than. However, someone's going to go to a benchmarks database and look at new results compared with old ones and figure it out.

Or you buy a CPU that was previously patched, even by Intel themselves.

Or you outright ignore the stipulation and do whatever the hell you want. Quite frankly I hope to see some benchmark articles that literally start with profanity telling Intel where to stick it.

This, definitely. This whole thing is bullshit. What are they going to do, sue the hell out of absolutely everyone who publishes any sort of benchmark about their hardware ? What do they want for themselves, become a lawyer's cabinet like Oracle ?

The CPU isn't patched, not permanently. This update must be loaded after every processor reset.

NDAs are stupid for the sams reason. Your rich uncle who never signed it can go use the idea, while you remain poor let’s say. Who are they gonna go after?

Reply on news.ycombinator.com