The EULA is enforceable because you have to agree to it to use the software, and Oracle has large and well financed legal team who will descend from a great height on you and anyone who publishes the results of you doing performance testing.
The EULA is enforceable because you have to agree to it to use the software, and Oracle has large and well financed legal team who will descend from a great height on you and anyone who publishes the results of you doing performance testing.
There's no "meeting of minds" and there's no exchange of value if I simply benchmark a piece of software and then don't use it any further.
This is a bit of a grey zone legally, and steps all over a bunch of consumer protection laws, free speech laws, etc... depending on the jurisdiction.
IMHO governments should explicitly ban these "gag clauses" because it prevents free market competition if customers are not allowed to benchmark software and publish the results.
However they haven't, so until they do, you're stuck with the license as is.
As for "meeting of minds" etc and exchange of value, that's irrelevant to the conditions of the license. It's not a contract. It usually starts off with something like "By using this software, you agree to the following terms...".
In the EU (and still the UK since they've not changed the law since) you have the right to benchmark software.
However, it doesn't include the right to publish the results, so you can only do it internally for Oracle and any software that has similar clauses.
It's not the government restricting your right to speak (1st amendment in the US), it's a private corporate "person".
If you don't like the conditions of the license, you can do one of three things:
1. Don't use the software
2. Use the software in violation of the license, and face the consequences if the copyright owner takes action against you.
3. Get the laws of copyright changed so that conditions about publishing benchmarks is not allowed to be removed by a license.
The licensing laws around copyright have been developed over the last few centuries. They can be changed.
But until they are, the limits are what they are. Currently, Oracle can put conditions on benchmarking and publishing the results in their license and its not only legal for them to do so, but they have prevailed in court when enforcing those conditions.