A few notes on the OpenSolaris release [LWN.net]

A few notes on the OpenSolaris release

Posted Jun 16, 2005 12:12 UTC (Thu) by ekj (subscriber, #1524)
In reply to: A few notes on the OpenSolaris release by eru
Parent article: A few notes on the OpenSolaris release

License conditions like that are, if not outlawed, then atleast void in a number of jurisdictions.

Saying you may not /publish/ benchmarks is a restriction on speech. Anyone can do benchmarks, they're just not allowed to tell anyone about their results.

Atleast in Norway those are void. Restrictions on speech in contracts are only allowable in certain limited cases which in general require a "honorable reason".

Wishing that only benchmarks "approved" by you can be published is not "honorable". Wishing that an employee that work for you and learn about secret plans for a new product refrain from telling your competitors probably is.

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The right to give up benchmarking privileges

Posted Jun 19, 2005 0:10 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

A promise not to divulge information is very common in US business, and entirely enforceable under US law. I can't even think of a kind of promise of secrecy that isn't enforceable.

I like it that way. My promise of secrecy is valuable, and I demand the right to trade it.

Incidentally, at least one no-benchmark contract term I saw wasn't a restriction on divulging the benchmark results -- it was on actually performing the benchmark. That it's hard for the other party to know the benchmarker breached the contract unless the benchmarker says he did really doesn't make it a free speech issue.