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

#26
Recus
Recipient shall use Confidential Information solely for benefit of Nvidia and shall not: (a) post news stories based on Confidential Information;


So you can write only good things but can't write anything at all?

Could graphics card sample be confidential information?
Posted on Reply
#27
OrionFOTL
"btarunr said:
That year, there was an NVIDIA Radeon and an AMD GeForce.
What do you mean? I can't find anything about that.
Posted on Reply
#28
TheMailMan78
Big Member
"OrionFOTL said:
What do you mean? I can't find anything about that.
BWAHAHAHAHAHAHAHAHAHAHAHA

If you are trolling....AMAZING! Man after my own heart!

If not......um.
Posted on Reply
#29
ShurikN
If we take into account all nVidia's shitty business practices over the past decade and a half, I have no reason not to believe in Heise's story. We literally had GPP a month ago. How quickly people forget.
Journalism integrity doesn't matter, as long as you can pump out those day one reviews... get those YT views.

Also this made me chuckle.
That all said, NVIDIA has not contacted HardOCP about any upcoming information, which we believe to be in direct retaliation for discussing GPP with the world. NVIDIA did tell us before publication of the GPP information, that doing so "could damage the relationship" between HardOCP and NVIDIA.
Posted on Reply
#30
medi01
"RejZoR said:
Again, what's ACTUALLY controversial about it?
This part: ‘solely for the benefit of NVIDIA‘.
Posted on Reply
#31
Xaled
1st the GPP thing and then the low demand for gpu causing nVidia to delay announcement of next gen gpu and now this ..nVidia is really mad now..
Posted on Reply
#32
RejZoR
"medi01 said:
This part: ‘solely for the benefit of NVIDIA‘.
You know what's a critical component of English language? Context. Cutting that part out as stand alone sentence is not what document actually states. They literally go into explaining what is what under that point. And nowhere it says "write positive stuff about our product or else". It just states you're not suppose to abuse the given confidential info before they allow it.
Posted on Reply
#33
the54thvoid
I think we should equate tech news to sweet news. It would bring things into perspective.

Today Mars released a new chocolate bar, it's awesome. The NDA we signed meant we couldn't tell you about its super dooper sweetness earlier. But now we can, and yum, that brown shit is the dogs bollocks. Another sweety review site, called, HardOCP (Hard On Chocolate Prohibition), sold the secret recipe Mars were working on and got no new chocolate to review. Boo Fucking Hoo. Now HardOCP are hoping the other brand of chocolate, Nestle, will send them all their great stuff instead. Except we all know, nestle sucks.

Now it all sounds like a silly game doesn't it? I don't think anyone died in this whole escapade unless perhaps they missed the nets at Foxconn.
Posted on Reply
#34
TheMailMan78
Big Member
"the54thvoid said:
I think we should equate tech news to sweet news. It would bring things into perspective.

Today Mars released a new chocolate bar, it's awesome. The NDA we signed meant we couldn't tell you about its super dooper sweetness earlier. But now we can, and yum, that brown shit is the dogs bollocks. Another sweety review site, called, HardOCP (Hard On Chocolate Prohibition), sold the secret recipe Mars were working on and got no new chocolate to review. Boo Fucking Hoo. Now HardOCP are hoping the other brand of chocolate, Nestle, will send them all their great stuff instead. Except we all know, nestle sucks.

Now it all sounds like a silly game doesn't it? I don't think anyone died in this whole escapade unless perhaps they missed the nets at Foxconn.
SCREW YOU! Nestle Crunch is awesome!

Also missing the Foxconn nets......thats funny right there! lol
Posted on Reply
#35
jabbadap
"medi01 said:
This part: ‘solely for the benefit of NVIDIA‘.
Usually nda prohibits use of confidential information altogether, this wording seems to allow use of it if it's to benefit Nvidia. Albeit there's then list when one cannot use given confidential information at all. So it's more granting nda than usual.
Posted on Reply
#36
bug
At this point, it would be nice to have a copy of the NDA AMD has news sites sign and compare.
Posted on Reply
#37
cadaveca
My name is Dave
"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.
You don't understand that true purpose of these NDAs then.

We sign NDAs so that that company providing the product is protected should something unfavorable happen due to the release of the information they are providing. Should they give out unreleased tech (as they always do), and someone leaks info, and that leak affects the stock market, the company is protected from accusations of trying to manipulate the market. It also lets them control that information release to a specific date, again, so as to prevent market manipulations.


Once you get into actually doing business with bleeding-edge technology in any industry, such NDAs are common and expected. The kicker here is that English words and legal words do not always have the same meanings as well, so you cannot just take the words in the NDA at face value unless you are reading it in "legalese". When you do, you'd realize that NDAs don't really do much at all.
Posted on Reply
#38
medi01
"RejZoR said:
You know what's a critical component of English language? Context. Cutting that part out as stand alone sentence is not what document actually states.
That's exactly what it states, according to heise.de's lawyers, but let us not assume you know less than them.

Given your background, would you mind comparing it to nVidia's previous NDAs?

"cadaveca said:
...you cannot just take the words in the NDA at face value...
It is even cooler than "don't take it out of context".
Posted on Reply
#39
Xaled
"bug said:
At this point, it would be nice to have a copy of the NDA AMD has news sites sign and compare.
Why only AMD ? what about Intel, OCZ, Asus, Gibabyte, Apple ..and so on? stop using AMD to justify nVidias actions in every single post of yours. AMD being a bitch doesnt justify nVidia to be the biggest wh*re of all time ...
Posted on Reply
#40
RejZoR
I mean, the stated "benefit" to NVIDIA is solely for not leaking the data before the release date. They don't say benefit includes favorable review. There is NOTHING of such sort in the NDA. I don't know what Heise.de lawyers were reading. Some other version of NDA than the one provided in image form?
Posted on Reply
#41
Lobolawn
"TheMailMan78 said:
@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.
Every Past Ati Radeon Review:

Cons:
  • No support for CUDA / PhysX
lol.....
Posted on Reply
#42
bug
"Xaled said:
Why only AMD ? what about Intel, OCZ, Asus, Gibabyte, Apple ..and so on? stop using AMD to justify nVidias actions in every single post of yours. AMD being a bitch doesnt justify nVidia to be the biggest wh*re of all time ...
Because bringing unrelated themes into a discussion is both impolite and a documented means of derailing said conversation.
Posted on Reply
#43
Divide Overflow
How odd. NVIDIA doesn't seem to have offered Kyle Bennett this NDA.
Posted on Reply
#44
TheMailMan78
Big Member
"Lobolawn said:
Every Past Ati Radeon Review:

Cons:
  • No support for CUDA / PhysX
lol.....
So you signed up to TPU to point out what exactly? That AMD cards do not offer a feature thats clearly beneficial to a lot of people, therefore its a con? Notice how most of the reviews say nothing of the lack of G-sync being a con? Maybe because AMD offers an equivalent of Freesync?

Welcome to TPU.....good bye.
Posted on Reply
#45
birdie
"ironwolf said:
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
Are you an idiot?

You won't get product samples to write reviews for unless you sign an NDA. A good review takes a week to complete and oftentimes newly released products have very limited availability. If you don't sign an NDA, you'll then have to buy a product to review, your review will be published very late and thus most people will ignore your website altogether, which means no money to run your website or to earn a living.

Bashing NVIDIA has become so trendy, Heise.de has definitely lost their mind. There's nothing unusual about this NDA and they also broke this NDA by releasing it.
Posted on Reply
#46
jabbadap
"medi01 said:
That's exactly what it states, according to heise.de's lawyers, but let us not assume you know less than them.

Given your background, would you mind comparing it to nVidia's previous NDAs?

It is even cooler than "don't take it out of context".
He probably can't speaking of NDA agreements because they usually are prohibited by another nda. And you took it out of context. Whole sentence is:

Recipient shall use confidential information solely for benefit of Nvidia and shall not(list of things).

"Recus said:


So you can write only good things but can't write anything at all?

Could graphics card sample be confidential information?
You can't write good things or bad things if it's breaks confidential, it's prohibited on that list. And yes of course Unreleased Graphics card is confidential, but there's that 3rd point about termination confidential. So when graphics card is released it's on public domain.
Posted on Reply
#47
gamertaboo
"OrionFOTL said:
What do you mean? I can't find anything about that.
He means that year Nvidia had the GTX 480 which ran really loud and hot, and AMD had a card that was really good.

Now days it's usually the opposite.
Posted on Reply
#48
medi01
"birdie said:
There's nothing unusual about this NDA
This is getting very annoying.
Show us any other NDA with "only to our benefit" statement then.
Hell, show us nVidia's older NDA's with such statement!!!

"gamertaboo said:
Now days it's usually the opposite.
Nothing AMD has at the moment is even remotely as bad as Fermi was.
Posted on Reply
#49
OrionFOTL
"TheMailMan78 said:

[QUOTE="OrionFOTL, post: 3861975, member: 166030"][QUOTE="btarunr, post: 3861916, member: 43587"]That year, there was an NVIDIA Radeon and an AMD GeForce.
What do you mean? I can't find anything about that.[/quote]BWAHAHAHAHAHAHAHAHAHAHAHA

If you are trolling....AMAZING! Man after my own heart!

If not......um.[/quote]Are people not allowed to not know the details of drama surrounding a graphics card? Sorry, I'll call the police on myself.
"gamertaboo said:
He means that year Nvidia had the GTX 480 which ran really loud and hot, and AMD had a card that was really good.

Now days it's usually the opposite.
Thank you.
Posted on Reply
#50
ironwolf
"birdie said:
Are you an idiot?

You won't get product samples to write reviews for unless you sign an NDA. A good review takes a week to complete and oftentimes newly released products have very limited availability. If you don't sign an NDA, you'll then have to buy a product to review, your review will be published very late and thus most people will ignore your website altogether, which means no money to run your website or to earn a living.

Bashing NVIDIA has become so trendy, Heise.de has definitely lost their mind. There's nothing unusual about this NDA and they also broke this NDA by releasing it.
Yes, I am an idiot for reading the multitude of other sites who are not bowing down to this NDA. Shame on me. :nutkick:Guess TPU broke the NDA as well for releasing it/posting it?
Posted on Reply
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