Tuesday, June 26th 2018

Revised NVIDIA Reviewers NDA Raises Eyebrows: Our Thoughts

An "attack on journalism" exclaims German tech publication Heise.de, on NVIDIA's latest non-disclosure agreement (NDA), a document tech journalists and reviewers have to sign in order to receive graphics card samples and information from NVIDIA. The language of this NDA, released verbatim to the web by Heise, provides a glimpse of what terms reviewers agree to, in order to write launch-day reviews of new products. NDAs are sort of like the EULA you agree to before installing software. There are NDAs for even little things like new thermal pastes, and reviewers end up signing dozens of them each year. Over time, it becomes second nature for reviewers to not publish before a date prescribed by the manufacturer, NDA or not.

The spirit of an NDA is: "we are giving you information/a sample in good faith, don't post your review before date/time/timezone." Such an NDA casts no aspersions on the credibility of the review since it doesn't dictate how the review should be, or what it should say. It doesn't say "don't post your review before we approve what you wrote." NVIDIA samples usually ship with a PDF titled "reviewer's guide," which only politely suggests to reviewers something along the lines of "here's our cool new graphics card that's capable of playing this game at that resolution with these settings, just don't test it on something like Linux with Nouveau drivers, because that either won't work or won't show what our card is truly capable of." Heise's close inspection of the latest NDA by NVIDIA suggests to them that NVIDIA is mandating positive reviews now. We disagree.
Over the past several launch cycles, NVIDIA and AMD have slated product launch and market availability on separate dates, resulting in reviewers being unable to buy graphics cards from friendly stores a few days in advance, to post launch-day reviews. Retailers that sell cards on market-availability day usually begin stocking up only a couple of days earlier, leaving reviewers with not enough time to write reviews with retailer-sourced cards, if they intend to post their reviews on launch-day (there are very few exceptions to this). This restricts reviewers to sampling directly from manufacturers; because publications get a lot more readership on launch-day than publishing their work weeks later, after getting cards from a retailer (by which time the public is generally aware about the product, and is less likely to read the review). Reviewers don't mind signing onto NDAs which tell them "you must not leak before NDA expiry time, or else no more samples."

On June 20th, Heise, along with several other publications (including us), received a notice from NVIDIA that they have revised their NDA, and that they must read and sign it before the 22nd of June. This new NDA needn't be a prelude to anything (a product launch or an event), but rather NVIDIA proactively collecting NDA signatures for future reference, so it could send future invitations/samples on short notice. This happens from time to time. Close inspection of the NDA reveals sentences such as: "the receiver uses confidential information exclusively in favor of NVIDIA," which Heise interprets as "you can't write a negative review."

Not all information shared by NVIDIA (or any hardware maker for that matter), is free to be disclosed at the expiry of review publication restrictions. NVIDIA's technical marketing people can sometimes put out off-the-record remarks or details to help reviewers better understand the product they're reviewing. These are usually 1-on-1 verbal communications between people who have built years of trust.

"Notwithstanding the expiration of this Agreement, the recipient's obligations with respect to any Confidential Information will expire five years after the date of their disclosure to the recipient," the NDA continues. Heise also interpreted the NDA survival clause (a standard component of most NDAs) as meaning that any information deemed a "trade secret" by NVIDIA (which if any technical marketing person is dumb enough to disclose to the press), remains embargoed forever under this NDA. "The protection of information, which is a trade secret, never goes out," it writes. Here is a crash-course on survival clause by a law firm.

A good example of a survival clause would be the NDA signed by The Coca Cola Company and a third-party company that manufactures its concentrate (so they need access to the top-secret recipe). This concentrate is shipped to bottling plants around the world, to make Coke as we know it. If Coca Cola stops sourcing concentrate from a particular supplier, the latter is still obligated under law to never disclose the top-secret recipe.

When Heise and c't protested with NVIDIA, they were told that "many journalists" have already signed up. TechPowerUp is among those "many journalists."

TechPowerUp did receive this NDA around the 20th, and promptly signed it, because we aren't reading too much into the controversial lines pointed out by Heise. I'm sure you won't spare us the criticism in the comments of this article. We've come across the phrase "in favor of" in many NDAs, not just from NVIDIA, and never once interpreted it as "favorable." This NDA is not going to stop TechPowerUp from pointing out any shortcomings of NVIDIA products, and none of NVIDIA's NDAs in the past ever have. During the review process, all NVIDIA does is check on progress, and whether we have encountered any abnormalities that they might be able to help with. Completely ignoring that inquiry is fine, and we've done so many times. Whenever we've come across bad products from NVIDIA, such as the GeForce GTX 480, or bad implementations of NVIDIA cards by its AIC partners, we've never hesitated to bring them to the attention of our readers, and will never stop doing so. One could easily argue that the drama after the GTX 480 launch was for the benefit of NVIDIA, because it pushed them in the right direction, to improve their product, which has led to their market dominance today.

Over the years, NVIDIA has tightened its grip over product launch cycle to ensure non-signatories or violators don't have access to samples, and so the NDA cannot be interpreted as a directive to only post positive reviews (lest NVIDIA ends up killing the credibility of every launch-day review, and jeopardizing its own product launch). Also NVIDIA doesn't need any NDA to cut off media that they don't like to work with for whatever reason. They can simply stop providing information or samples, it's not like NVIDIA has any obligation to work with everyone.

Public perception of NVIDIA has already taken a beating in the wake of the GPP controversy, and it's the duty of press to point out similar misadventures by the company, but maybe not based on misinterpretations of internal documents. We feel that Heise is overreacting and possibly looking to become a martyr, by just following the trend of bashing NVIDIA. Source: Heise
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160 Comments on Revised NVIDIA Reviewers NDA Raises Eyebrows: Our Thoughts

#1
Vya Domus
it's the duty of press to point out similar misadventures by the company
I can't take that statement seriously, we all know that's not what happens and oddly enough this article and what Heise says is proof of that.
Posted on Reply
#2
DRDNA
W1zzard a man of his word......nice write up!
Posted on Reply
#3
dj-electric
Thanks very much for the input on this. I'm with TPU on this one. Nothing about this contract forces the exclusion of criticism, because that exact criticism "benefits nvidia".

PS. hope you had fun on your time off, bta. good to have you back.
Posted on Reply
#4
btarunr
Editor & Senior Moderator
dj-electric said:
PS. hope you had fun on your time off, bta. good to have you back.
I got lost on an island (Phuket). Was fun though.
Posted on Reply
#5
medi01
NVIDIA’s new NDA basically says that any confidential information provided to the party must be usedsolely for the benefit of NVIDIA‘.
But then:

btarunr said:
Heise's close inspection of the latest NDA by NVIDIA suggests to them that NVIDIA is mandating positive reviews now. We disagree.
Sad.
Posted on Reply
#6
harrisonjryan88
the drama after the GTX 480 launch
Can someone explain what the drama was about?
Don't know / remember anything about it.
Posted on Reply
#7
btarunr
Editor & Senior Moderator
harrisonjryan88 said:
Can someone explain what the drama was about?
Don't know / remember anything about it.
That year, there was an NVIDIA Radeon and an AMD GeForce.
Posted on Reply
#8
RejZoR
I see nothing controversial about NDA. If there is an embargo till specific date, that's nothing unusual. It's to prevent fancy exclusives and clickbaits. Everyone gets the same release schedule. They cannot enforce positive reviewing. They may suggest you write favorably about their spanking new product if it proves to be that way, but they can't force you to do it if product turns out to be second grade.

If they actually said that in the NDA and that gets out, they'd crash and burn with the force of million suns going supernova.
Posted on Reply
#9
lowrider_05
This Article is just Sad and Pro NVIDIA
Posted on Reply
#11
jahramika
RejZoR said:
I see nothing controversial about NDA. If there is an embargo till specific date, that's nothing unusual. It's to prevent fancy exclusives and clickbaits. Everyone gets the same release schedule. They cannot enforce positive reviewing. They may suggest you write favorably about their spanking new product if it proves to be that way, but they can't force you to do it if product turns out to be second grade.

If they actually said that in the NDA and that gets out, they'd crash and burn with the force of million suns going supernova.
Okay Nvidia Fanboy without a mind of his own.
Posted on Reply
#12
punani
It's the numbers and graphs i use when comparing products, and as long as the numbers are legit i don't much care if there are an abundance of kind words towards Nvidia in reviews.

harrisonjryan88 said:
Can someone explain what the drama was about?
Don't know / remember anything about it.
This ring a bell ? :D
Posted on Reply
#13
TheMailMan78
Big Member
@btarunr The way it reads is TPU will not use confidential information thats shows NVIDIA in a bad light. Basically if you "leak" it should only be to show NVIDIA in a good light. I don't see an "attack on journalism" anywhere. Just "Hey if you are going to leak stuff make sure its to make us look good!". Simple solution would be to just not leak anything and give honest reviews after the NDA. That other place sounds full of drama queens.

Also TPU doesn't favor any manufacture over another. People calling TPU biased should just leave. Seriously just leave. I mean why would you want to be a member of a review site thats biased? Leave while you still have your shining integrity. If you stay then STFU with such accusations OR go to Tweaktown and their Mexican storefront style website.
Posted on Reply
#14
bug
lowrider_05 said:
This Article is just Sad and Pro NVIDIA
Well, what does TPU staff know? They've only been doing reviews for 15 years or so. I value your opinion much more than theirs. :wtf:
Posted on Reply
#15
Mark Little
I have enjoyed reading Techpowerup for about four years now. I agree with almost every Editorial posted. Unfortunately this means today is a solemn day for me. I cannot support Techpowerup's position on this. I'm sure this also means I cannot read and enjoy other websites like Anandtech.

If this is the kind of legal documents that sites like Techpowerup are signing, then hardware review sites might be irrevocably lost. Not releasing a review before an NDA date has been the case since the beginning but if you guys are being given confidential information at all regardless of talking positive or negative about it then you are absolutely not journalists. Journalist report under their OWN integrity. Not the marching orders of those being reported on.

Now I understand that the ONLY reason you are doing this is to protect what generates the most page views for the site, graphics card reviews. But be up front about that. You HAVE to sign even if the NDA said you had to give away your first born. You have NO choice or you risk losing page views and therefore ad revenue. At least be up front about that before pretending this is acceptable.

Further to the point, I had to check TWO agreements in order to sign into my already created Techpowerup account in order to comment on this editorial. I have to agree about cookies on every website. I have to check agree to legal statements constantly all over the web. We are lost to a constant barrage of legal statements born out of fear and this editorial is just further evidence of this.

The ONLY way back from this is for hardware review sites to stop accepting ANY hardware from manufacturers that ask you to sign anything other than waiting for the official release date.
Posted on Reply
#16
TheMailMan78
Big Member
Mark Little said:
I have enjoyed reading Techpowerup for about four years now. I agree with almost every Editorial posted. Unfortunately this means today is a solemn day for me. I cannot support Techpowerup's position on this. I'm sure this also means I cannot read and enjoy other websites like Anandtech.

If this is the kind of legal documents that sites like Techpowerup are signing, then hardware review sites might be irrevocably lost. Not releasing a review before an NDA date has been the case since the beginning but if you guys are being given confidential information at all regardless of talking positive or negative about it then you are absolutely not journalists. Journalist report under their OWN integrity. Not the marching orders of those being reported on.

Now I understand that the ONLY reason you are doing this is to protect what generates the most page views for the site, graphics card reviews. But be up front about that. You HAVE to sign even if the NDA said you had to give away your first born. You have NO choice or you risk losing page views and therefore ad revenue. At least be up front about that before pretending this is acceptable.

Further to the point, I had to check TWO agreements in order to sign into my already created Techpowerup account in order to comment on this editorial. I have to agree about cookies on every website. I have to check agree to legal statements constantly all over the web. We are lost to a constant barrage of legal statements born out of fear and this editorial is just further evidence of this.

The ONLY way back from this is for hardware review sites to stop accepting ANY hardware from manufacturers that ask you to sign anything other than waiting for the official release date.
No just no. Thats not what TPU did and thats not the way this works. Thats not how any of this works.

Posted on Reply
#17
RejZoR
jahramika said:
Okay Nvidia Fanboy without a mind of his own.
A few weeks ago I was called AMD fanboy and now I'm NVIDIA fanboy. Lol. Make up your minds. I've signed NDA's before, they exist for a reason and they seem to be bitching over things that are most typical for NDA's. I've read the NDA from the images above and I don't see ANYTHING out of ordinary or controversial. I really don't get why ppl are bitching over.
Posted on Reply
#18
the54thvoid
TheMailMan78 said:
@btarunr If you stay then STFU with such accusations OR go to Tweaktown and their Mexican storefront style website.
Tweaktown on mobile was horrendous. Banners would slide across your screen like fat PR slugs.

Mark Little said:
I have enjoyed reading Techpowerup for about four years now. I agree with... every Editorial posted. ..this means today ... I ...support Techpowerup's position on this. I'm sure this also means I .... enjoy other websites like Anandtech.

If this is the kind of legal documents that sites like Techpowerup are signing, ... then you are absolutely ... journalists. .

Now I understand ...

Further to the point, I ... order ...Techpowerup ... to agree about cookies ... I have ... legal statements ... all over the web. We are... born out of ....her ....
Fixed a lot for you.
Posted on Reply
#19
TheMailMan78
Big Member
the54thvoid said:
Tweaktown on mobile was horrendous. Banners would slide across your screen like fat PR slugs.



Fixed a lot for you.
Yeah the owner of Tweaktown came in here all emo'ed out waving his D!$K around and was made quick work of when nobody cared what he had to say. It was quite funny. Anyway Im sure websites like that jokers will be all "OMG THIS IS AGAINST MY JOURNALISTIC INTEGRITY! WAAAAAAA" hoping for clicks on his Mexican storefront site. Glad TPU keeps its feet to the ground and why its as big as it is.

This planet needs a solid plague. People cry about the dumbest things.
Posted on Reply
#20
ironwolf
Not going to lie, I am somewhat saddened to hear that you signed that NDA. It won't keep me from enjoying the site though. I'll go kill some baddies in a few games and be all better. :p
Posted on Reply
#21
LDNL
Its so sad how easily Techpowerup dismissess this NDA like its a norm of this industry. Since when did REVIEW sites turn into marketing tools for a company. My guess is when the money starts rolling in and integrity is out the window. The real problem is that the review sites are dependant on companies and their product launches. If you don't sign a joke of an NDA within a day or two, youre out of a big release and you loose income which it all comes down to. And this is right on the heels of the GPP meltdown that happened so im guessing Nvidia wants full control on what so called "review sites" write these days.
Posted on Reply
#22
bug
RejZoR said:
A few weeks ago I was called AMD fanboy and now I'm NVIDIA fanboy. Lol. Make up your minds. I've signed NDA's before, they exist for a reason and they seem to be bitching over things that are most typical for NDA's. I've read the NDA from the images above and I don't see ANYTHING out of ordinary or controversial. I really don't get why ppl are bitching over.
It's got "Nvidia" and "NDA" in it. Enough to trigger reflexes in some.
Posted on Reply
#23
dj-electric
LDNL said:
Its so sad how easily Techpowerup dismissess this NDA like its a norm of this industry.
This NDA is the norm of this industry. There's nothing about it that dictates TPU's review towards NVIDIA's product. I have been a part of said industry since 2009, I'd know.

"This cooler is running too hot" benefits NVIDIA.
"The fan curve could be a little less aggressive" benefits NVIDIA.
Not leaking info prior to NDA is a given.

Get over it, this is exactly how the industry works.
What we see here in the comment section is people who love TPU and suddenly lose trust by TPU doing exactly what it has done for the past 14 years.
This NDA changes 0% of W1zz's way of making GPU reviews. It does not effect his words in any way.

You were told what's in your favorite salad, and now you hate it.
Posted on Reply
#24
TheMailMan78
Big Member
I think the only moral thing to do for people that think TPU sold out is to leave. I mean people surely that have such phenomenal reading comprehension as they do, should leave immediately. Just click that lil "x" in the corner of your browser and BOOM JOURNALISTIC INTEGRITY SAVED!
Posted on Reply
#25
RejZoR
Again, what's ACTUALLY controversial about it? NDA's actually help reviewers to be on a plain level. Would it be fair if some US review site gets samples already and European site like TPU gets them 2 weeks later because of shipping distances, that's a bit unfair isn't it? Meaning US reviewers would be enjoying an advantage over others because they got the cards sooner. Here, NVIDIA (or any company for that matter) declares the end of the embargo and if you don't make the review till that date, it's your fault. You get the material in advance. But everyone releases it at the same time when NDA is lifted. I see that as benefit for reviewers and not as tool of oppression.

The rest of non disclosure is pretty usual stuff. I've signed similar one before for one of games when I worked as beta tester for a game company and I also signed one when we were visiting AVAST Software headquarters in Prague.
Posted on Reply
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