If I didn't state upfront that I was the tech lead of Workers, someone would (rightly) call me out for astroturfing.
The clause says "Unless otherwise expressly permitted in writing by Cloudflare, you will not and you have no right to: [...] (f) perform or publish any benchmark tests or analyses relating to the Services without Cloudflare’s written consent;"[1]
IANAL, but this seems to very unambiguously prohibit benchmarking Cloudflare's services unless you have written permission. I know you don't want to get into an argument on HN, but could you like... bring it up to someone inside of CloudFlare who would be capable of changing it? You can point to this thread about how this clause is generating negative publicity.
[1] https://www.cloudflare.com/terms/ section 2.2
An unusual and excellent CEO stance. Now I like Cloudflare even more.
No JS required, just feed all web requests directly through them where they can see all first party cookies, encrypted contents, etc.
Not quite at the level of a public figure (Pres. Biden can't go around making flippant comments) but more than being just a private citizen or "I just work here". No amount of disclaimer can remove that, and for better or worse it's part and parcel with the job.
Without this in your T&Cs I could create the account for them in a couple of minutes. And avoid doing a screenshare to walk those who fail through the sign up process.
If you're an employee, yes. If you're a consultant, contractor, freelancer or similar then you are a third party doing as you do it on behalf of your client (the first party). This is for UK law, and the distinction of first/thrid party is important when it comes to tax (see IR35 for the mess created).
Fastly made it sound like contacting Cloudflare is "impossible", yet here you and one of your top devs are.
I've seen you reply about ToS issues before (specifically over caching of non-html assets): https://news.ycombinator.com/item?id=20791605
You verbally allowed it in that thread but have you considered officially adding that into the next revision of your ToS too?
As for "stand-up" with Fastly, I believe the whole situation brings only negative consequences on both parties. I always become wary towards any service that posts comparisons with its competitors (or simply with services of similar nature).
Good luck and wise decisions to you.
This - I mean even the conversation prior to this message - surely constitutes "expressly permitted in writing by Cloudflare"?
I don't want the following to come off as unnecessarily argumentative, but regarding the ToS, I'm not a lawyer either, but my "ability to read English" interpretation of the section on "perform or publish benchmarks..." certainly sounds like it is prohibiting folks from doing their own side-by-side comparisons. Which is, of course, nonsense, because any engineer worth their salt would do their own analysis, even if they didn't publish it.
Just sounds to me like the CloudFlare lawyers got a little too aggressive to the point of absurdity, but I still think it's fair to call out CloudFlare for this.
Even without the ToS language, if you're really going to stress test a service, it's probably a good idea to give them a heads up, lest you get marked a bad actor.
I'm assuming this isn't the only overly restrictive clause in the contract. Maybe it's an anomaly in an otherwise respectful ToS.
We aren’t owed a historical explanation, and yet we’ll likely receive one with what I presume will be a TOS update blog post in a few weeks.
I feel like this is that moment where someone lays on the car horn because they want to be sure the other driver understands that they’re a bad person, and should feel bad about themselves. It’s not about making you right by their actions, it’s about making sure they know the depth of your anger at them.
That has little value here. It’s socially valuable in interpersonal interactions, but it’s a tire fire when left uncurbed at Internet scale, and becomes vitriolic and harmful to discourse.
I may have misunderstood your specific intentions and desires from the CEO, and if so, I apologize; but I stand by my point in the general sense for all of us.
The ToS explicitly say that performing any benchmark analyses or test relating to the services is not allowed without written permission from CloudFlare.
99% of the people reading and attempting to abide by the CloudFlare ToS are not lawyers, but as a rule contracts mean what they say when they say it clearly and unambiguously as this seems to.
The way I usually see people handle this, and what I do myself, is to both state your relation to the company and clarify whether you're speaking for the company. Ex: "I'm the tech lead for Cloudflare Workers, but speaking in my personal capacity..." or "I'm the tech lead for Cloudflare Workers (speaking only for myself) ..."
On top of that, Kenton is a frequent commenter here, and I've never gotten the "air of superiority" vibe from him where such verbosity would be necessary.
I think the nuance is that you are presenting yourself as someone with responsibility/authority/control over the subject of these benchmarks. As a comparison, consider wording that skirts taking up that mantle:
Full disclosure, I work for Cloudflare, but ...
Not trying to be argumentative and really don't have any hostile feelings or intent. I understand where you're coming from.. just providing my outside take on how the interaction appears. You're within your right to defend your product. Nobody seems to have a problem with that. But you also decided to throw mud on the pile, metaphorically. You admitted you aren't plugged into the back and forth, that's fine. But this isn't news for Fastly and it's hard to take your side in this discussion when your solution is "go do your own tests" which is exactly what Fastly is would like to do. They clearly call attention to your ToS preventing them from doing that in the piece we're discussing here.