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
bug
medi01 said:
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!!!
Down boy! Down!


medi01 said:
Nothing AMD has at the moment is even remotely as bad as Fermi was.
Except for Polaris that couldn't be scaled to cover the high-end at all.
Posted on Reply
#2
Assimilator
It's refreshing and extremely heartening to see such a measured and thoughtful opinion piece from TPU. I know I've been complaining about what I consider clickbait journalism from this site for a while, but this article is the exact opposite of that - and in a climate where every tech "journalist" and their mother seems to be milking the "evil NVIDIA" train after the death of the deservedly-reviled GPP, such an article is both brave and welcome.

Well done @btarunr and @W1zzard - you have restored my faith in TPU. Please, keep this up!
Posted on Reply
#3
RejZoR
bug said:
Down boy! Down!



Except for Polaris that couldn't be scaled to cover the high-end at all.
Polaris was never meant to do that. It was a specifically targeted mid end card for a very specific price bracket. That got fucked up by miners, but AMD had good intentions for the gaming crowd.
Posted on Reply
#4
TheMailMan78
Big Member
medi01 said:
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!!!


Nothing AMD has at the moment is even remotely as bad as Fermi was.
Dude Im asking seriously, is english not your first language? If not I fully understand.

Ill quote myself and I hope this helps...

"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."

Nothing in the NDA says to hide anything after the NDA is lifted. NOTHING.
Posted on Reply
#5
Gasaraki
lowrider_05 said:
This Article is just Sad and Pro NVIDIA
LOL! Make TPU Great Again! /s

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.
OMG, people are so out there. If this NDA was really out of the norm, would you think that sites like Anandtech and Tom's would be signing it? Yet they probably are just like TPU. So people need to chill the F out.
Posted on Reply
#6
OneMoar
There is Always Moar
there are two kinds of people in this world
those who understand legalise
and those who don't
Heise does not
most of the people crying fowl in this thread also don't

all that being said this is a symptom of a larger problem

nvidia are bullies and its high time press banded together and refused to cover them until they shape up*
**right after AMD stop making shit graphics cards because this is what you get when there is no competition
Posted on Reply
#7
Lobolawn
TheMailMan78 said:
That AMD cards do not offer a feature thats clearly beneficial to a lot of people, therefore its a con?
It shouldn't be a con thats my point, not when its keyed to nvidia cards.
You are off. And your memory is poor.
I'm just saying i remember TPU being bias. I didn't want you to to forget.
On more than 30+ reviews. Not to say i hate tpu.
Your fanboy is too strong. :)

TheMailMan78 said:
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?
So tpu got a little better. Good for them. I dont hate tpu relax. :)

TheMailMan78 said:
So you signed up to TPU to point out what exactly?
I think I did it. You are mad enough. :)
Also no one here is a journalist.
Posted on Reply
#8
OneMoar
There is Always Moar
Lobolawn said:
It shouldn't be a con thats my point, not when its keyed to nvidia cards.
You are off. And your memory is poor.
I'm just saying i remember TPU being bias. I didn't want you to to forget.
On more than 30+ reviews. Not to say i hate tpu.
Your fanboy is too strong. :)



So tpu got a little better. Good for them. I dont hate tpu relax. :)



I think I did it. You are mad enough. :)
Also no one here is a journalist.
this isn't reddit kiddo
be gone you won't be missed
Posted on Reply
#9
R-T-B
birdie said:
and they also broke this NDA by releasing it.
Um no. You can't violate something you haven't agreed to yet. That's not how the world works. Furthermore, if the details of the agreement weren't public, it wouldn't even be legally enforceable. That whole idea is silly.

Vya Domus said:
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.
Oh it's certainly what happens.

If anything the press today is too sensationalist for my taste, not too cautious by any means.

medi01 said:
Show us any other NDA with "only to our benefit" statement then.
I assure you, it's more common than not

TheMailMan78 said:
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!
I believe we agree. Oh my god that's scary.

TheMailMan78 said:
This planet needs a solid plague. People cry about the dumbest things.
Oh good god yes, I feel vehement disagreement with you again! Was getting scary there for a moment.
Posted on Reply
#10
xkm1948
TheMailMan78 said:
No just no. Thats not what TPU did and thats not the way this works. Thats not how any of this works.


Don’t scare the snowflakes with facts man, you are gonna hurt their precious feelings. Pff who cares how real world works right?
Posted on Reply
#11
Lobolawn
OneMoar said:
this isn't reddit kiddo
be gone you won't be missed
You should be banned for flaming? No?
Gang mentality I cant post the truth?
Posted on Reply
#12
R-T-B
Lobolawn said:
Also no one here is a journalist.
You going by the college credential criteria? Even then we have a few.

If not, I'd still argue that's a very dated definition. The 21st century has made everyone a journalist... of course not everyone is a good journalist. Those are rare. ;)
Posted on Reply
#13
TheMailMan78
Big Member
Lobolawn said:
It shouldn't be a con thats my point, not when its keyed to nvidia cards.
You are off. And your memory is poor.
I'm just saying i remember TPU being bias. I didn't want you to to forget.
On more than 30+ reviews. Not to say i hate tpu.
Your fanboy is too strong. :)



So tpu got a little better. Good for them. I dont hate tpu relax. :)



I think I did it. You are mad enough. :)
Also no one here is a journalist.
Your response seems incoherent. Do you feel your left arm? Are you having a stroke?

Or are you trying to be all 4chan "Be me. Be 14. Bitch about TPU because thats what you do? Get caught wearing sisters underwear."
Posted on Reply
#14
Captain_Tom
"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)."

I am sorry, is the writer suggesting that Nvidia would never push for positive reviews because it would immediately jeopardize Nvidia's credibility? That's cute.

Yeah lol, Nvidia would never be silly enough to try to receive universal praise guys!
Posted on Reply
#15
ajc9988
Now, look at how Nvidia came to the press on GPP and gave what is covered as Confidential Information on the program. By doing so, the derivative information of rumors and speculation on the GPP can no longer happen because of the speculation being prohibited. That means that the GPP would have survived and this NDA acts as a gag order on you reporting on it. That is a simple example of how Nvidia will use this NDA.
Posted on Reply
#16
the54thvoid
xkm1948 said:
Don’t scare the snowflakes with facts man, you are gonna hurt their precious feelings. Pff who cares how real world works right?
It's got bugger all to do with snowflakes you melonhead. It's about people bandwagoning the anti-Nvidia train without checking the facts first. Also, it's being done by the usual anti TPU, pro AMD minority.

AMD had a kick-back some time ago with a formal review guide that was unfairly weighted against Nvidia. Someone find it quick, to put the AMD chappies to rest.
Posted on Reply
#17
Captain_Tom
the54thvoid said:
It's got bugger all to do with snowflakes you melonhead. It's about people bandwagoning the anti-Nvidia train without checking the facts first. Also, it's being done by the usual anti TPU, pro AMD minority.

AMD had a kick-back some time ago with a formal review guide that was unfairly weighted against Nvidia. Someone find it quick, to put the AMD chappies to rest.
And that makes this ok? That was crappy of AMD, and this is crappy of Nvidia. Duh.
Posted on Reply
#18
W1zzard
Captain_Tom said:
is the writer suggesting that Nvidia would never push for positive reviews
Not a single western company has ever tried to influence the outcome of my reviews in any way (including NVIDIA). Some Asia companies have tried (a little bit), but of course without success.

Why would you want to screw with reviewer results, and then get burnt by actual customers who encounter product flaws. Nowadays everybody can post their experience online. Results of hardware reviews can easily be reproduced, or are immediately noticed when comparing with other reviewers.
Posted on Reply
#19
R-T-B
the54thvoid said:
It's got bugger all to do with snowflakes you melonhead.
I think I love this comment.

We should start a "Society for the Appreciation of Snowflakes" with the goal of ending the use of "snowflake" as a derogatory term. You can be president.

W1zzard said:
Not a single western company has ever tried to influence the outcome of my reviews in any way (including NVIDIA). Some Asia companies have tried (a little bit), but of course without success.

Why would you want to screw with reviewer results, and then get burnt by actual customers who encounter product flaws. Nowadays everybody can post their experience online. Results of hardware reviews can easily be reproduced, or are immediately noticed when comparing with other reviewers.
The only reason I can think is if you have confidence you can spam common review sites with "fake reviews" but even this is unlikely to work 100%.

TheMailMan78 said:
Or are you trying to be all 4chan "Be me. Be 14. Bitch about TPU because thats what you do? Get caught wearing sisters underwear."
Be TPU.

People say you bias towards nvidia. People say you biased towards AMD/ATI. Be bias towards nobody.

Cancel out.

PS: I become 4chan.

Kill me.
Posted on Reply
#20
ajc9988
W1zzard said:
Not a single western company has ever tried to influence the outcome of my reviews in any way (including NVIDIA). Some Asia companies have tried (a little bit), but of course without success.

Why would you want to screw with reviewer results, and then get burnt by actual customers who encounter product flaws. Nowadays everybody can post their experience online. Results of hardware reviews can easily be reproduced, or are immediately noticed when comparing with other reviewers.
Look into the videos by AdoredTV. I think they cover Nvidia's activities well over the years, including influencing press coverage.
Posted on Reply
#21
cadaveca
My name is Dave
ajc9988 said:
Look into the videos by AdoredTV. I think they cover Nvidia's activities well over the years, including influencing press coverage.
We ARE that press. Your source of information is highly flawed, based on my own experiences, and what W1zz says is his experience. So the idea that NVidia tries to manipulate the press is proven wrong by our experience. Only the weak give in to such demands. :p That weakness might be financial, mental, whatever... but probably financial. That's all that NVidia can do, understand, is slightly affect a site's income, by various means. You make it seem like they have more power over things than they actually do. It's rather entertaining, to be honest.
Posted on Reply
#22
R-T-B
cadaveca said:
We ARE that press. Your source of information is highly flawed, based on my own experiences, and what W1zz says is his experience. So the idea that NVidia tries to manipulate the press is proven wrong by our experience. Only the weak give in to such demands. :p
I feel like shouting "I am the senate!"

Are we that cool yet?

Can I be emperor?

Sorry, I must need more coffeee, it's becoming hard to entertain myself....
Posted on Reply
#23
ajc9988
cadaveca said:
We ARE that press. Your source of information is highly flawed, based on my own experiences, and what W1zz says is his experience.
You two are two data points. It is the same as anecdotal evidence. It has been proven to have occurred at other outlets. Just because your personal experience has not yet been of the type DOES NOT mean that it will not be so in the future. There is an error related to your sample size, thereby making your statements experiential, but not necessarily that of the entirety of the tech press.
Posted on Reply
#24
R-T-B
ajc9988 said:
You two are two data points. It is the same as anecdotal evidence. It has been proven to have occurred at other outlets. Just because your personal experience has not yet been of the type DOES NOT mean that it will not be so in the future. There is an error related to your sample size, thereby making your statements experiential, but not necessarily that of the entirety of the tech press.
Seriously, you are correct if we can assume all data is gathered impartially and without bias, ie all data points are equal.

Unfortunately, you know as well as I do that nothing could be further from the truth in the online journalism world.

Take it from me, this place is better than most at reporting the true facts of matters. And honestly, me backing up Dave is seriously not my style... so this isn't something I say/do lightly. He said something about my testosterone not too long ago, or something...
Posted on Reply
#25
cadaveca
My name is Dave
ajc9988 said:
You two are two data points. It is the same as anecdotal evidence. It has been proven to have occurred at other outlets. Just because your personal experience has not yet been of the type DOES NOT mean that it will not be so in the future. There is an error related to your sample size, thereby making your statements experiential, but not necessarily that of the entirety of the tech press.
We and another website trade 3rd place for traffic for hardware reviews and news and such. Our sample size is much larger than you give us credit for. :p

but then, you need to look at that objectively. Maybe NVidia DOES try to manipulate smaller sites. But if they are, those sites are the ones you should be after for listening and being swayed, not NVidia.
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