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Comment by GordonS | Hacker News Reader

> You may not: <<list of things you cannot do>>

I mean... does anyone here think this is in any way reasonable? Is this even legal?

In one of the Star Wars movies, there was a hooded and cloaked figure who, in response to that very same question, said, "I will make it legal."

There's no proof that figure wasn't Larry Ellison.

I can't argue with that. I suppose regardless of how ridiculous it is, Oracle has very deep pockets and is infamously litigious, and the US legal system doesn't help - given that, I doubt legality really matters...

You can't sue someone for violating ToS... right?

At worst, you can refuse to do business with them and revoke any current contracts.

You'd have to sue under actual law, which would presumably be libel, which is (in)famously hard to prove in the US [1]. If he had a good faith belief that what he reported was true, that case goes nowhere. Indeed, in lieu of a signed and dated note declaring his knowledge that his benchmarks are (a) false and (b) shared in an attempt to harm Oracle, that case goes nowhere.

[1] https://en.m.wikipedia.org/wiki/United_States_defamation_law

A company absolutely can sue someone for violating the terms of service. For huge amounts of money, too, and it might be both you and your organization who have to pay. In the US it would probably be at least considered a contract violation & a copyright violation, not just libel. Contract law has a lot of teeth, and copyright violations have massive statutory damages. Oracle has a massive legal department; they can probably find a thousand other laws it potentially violates without blinking an eye.

I really don't like DeWitt clauses, I think they're horrific. But there's a reason people generally avoid fighting them in court - it's very expensive with an uncertain outcome.

Disclaimer: I'm not a lawyer.

As far as I understand it you are correct about ToS not generally having much in the way of teeth in the US.

But once you download a piece of software you're no longer dealing with the ToS but rather a license granted to you under copyright law. Those do have (arguably too many) teeth in the US.

You could sue for damages arising from breach of contract I guess. And in the US you don't always have to substantiate your damages.

It's not about making it reasonable, it's an open threat to punish anyone who does decide to benchmark Oracle. Nobody's going to win the case, but whoever violates the term will surely wind up bankrupt defending themselves.

Publish benchmarks as an LLC, then just go ahead and declare bankruptcy.

Better yet, publish as a Russian or Chinese resident. Disclose results to a (preferably not Oracle-using) tech newspaper on the condition of anonymity.

Last time I checked, Oracle had some kind of branch in Russia. Not sure whether that clause is enforceable within Russia laws, but they could just bribe police, so they would make one's life quite miserable.

Money is money everywhere. May be even more so in Russia.

I have no idea about China, though.

Publish your paper directly to SciHub anonymously.

This is a very dangerous advice to follow in general.

expand on that

It's probably a reference to "piercing the corporate veil":

https://www.nolo.com/legal-encyclopedia/personal-liability-p...

TL;DR: If a judge thinks your corp was just a protective shell, you can be held personally liable for its debts, and your assets can be seized.

publish over tor with steps to replicate. lack of authority shouldn't be a problem because anyone can replicate it. reputable people might even be able to say they endorse the findings without running afoul of the EULA, considering they're just saying yes/no, not disclosing the results of the benchmark.

That is very wrong with the US system. It should be "loser pays"

Sometimes it is, but you still have to get to that point, and it can take years.

I think this clause is not reasonable and should not be legal. However, these clauses (they're called "DeWitt clauses") have been around for almost 40 years and they have not gone away.

For more, see my essay, "The DeWitt clause’s censorship should be illegal" https://dwheeler.com/essays/dewitt-clause.html (I mentioned it in another thread, but you might not have seen it).

A good read that explains the background, thanks!

VMware does it too. It's in the Eula.

I've heard of others prohibiting benchmarks before, which I can at least begin to comprehend (fair benchmarks are hard) even if I disagree. But prohibiting discussing things a product can't do is a new one on me.

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