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
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.
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.
159 Comments on Revised NVIDIA Reviewers NDA Raises Eyebrows: Our Thoughts
Well done @btarunr and @W1zzard - you have restored my faith in TPU. Please, keep this up!
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.
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
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.
If anything the press today is too sensationalist for my taste, not too cautious by any means.I assure you, it's more common than notI believe we agree. Oh my god that's scary.Oh good god yes, I feel vehement disagreement with you again! Was getting scary there for a moment.
Gang mentality I cant post the truth?
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. ;)
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."
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!
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.
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.
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.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%.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.
Are we that cool yet?
Can I be emperor?
Sorry, I must need more coffeee, it's becoming hard to entertain myself....
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...
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.
Are you still allowed to publish this?
Because if not I can see why people are worried. You could become Nvidia's secret keeper for 5 years. And by the time the NDA expires people don't really care much about old news, do they? Not the same impact, definitely not on sales.
My point was more to discuss the fears related to the document and certain coverage, such as the GPP and Nvidia basically gobbling up partner's brand IP and trademarks and that coverage like that can now be pre-empted by giving confidential information to all outlets at the outset. After that, hearing rumors on the effect of the agreement is pre-empted in the NDA. This is not just about reviews.
But I did want to make clear that this is not making statements related to the journalists here or their integrity and is solely related to potential uses of the agreement.