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.
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.