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

#101
close
"jabbadap said:
They really can't hide that kind of flaw. If tests shows that there's slower part of memory, it's easy to prove with showing test data that the flaw exists and you don't have to use nvidia given "Confidential information" as source. It's even actually said on that nda in chapter 3. Recipient shall not be liable for disclosure of Confidential Information that... c) is or was independently developed by employees of recipients.
Do you remember initial reviews showing anything? The issue was reported months after launch, and Nvidia had sold a shi*ton of cards by then.

But that was given as an example: It was a defect that was known by Nvidia well before launch and as far as tech news goes this was of public interest. But there are plenty of such examples where you would be interested in knowing and can't be "independently proved" by a reviewer. Any details that you can't squeeze out of the actual board that you buy will stay buried fro 5 years.

What if you find out that Nvidia is actively manipulating the cryptomining market to keep prices up? One Nvidia rep sends you an email under NDA giving you a short overview of how they are "developing new ecosystems" and "nurturing innovation" and then tells you all of this is for your eyes only. Good luck reporting on that.

"cadaveca said:
The NDA only hold the signatory individual as responsible. Just read it... and the only person who would sign an NDA is the person getting the hardware/information. The rest of our organization is not affected as long as there is no discussion between us about it.

Even if it is covered by NDA, there are ways around that. NDAs of this sort in this industry really do nothing but provide necessary protections for the stock market. They have a very specific purpose. I'm also not in the US, so not subject to US law directly. Of course, I mean myself, not TPU.

I'll give you an example:

So, I post the launch day of the next VGA. I guess this date, based on the past (ie, my birthday, which is when they usually launch cards), and I get this date right. Maybe this date is covered by NDA< but since it was not disclosed to me directly, should I decide to post it on the front page, they can't be held responsible for what I do, because IT SPECIFICALLY SAYS THAT in the NDA.

This ensures that the worries you have mentioned here are not a real worry... it just means that whoever signed the NDA will not be the person to explore such subjects. Fortunately, there are many people that contribute here.
The signatory is also the only one receiving any information from Nvidia. The only way for anybody else at TPU to report on that information is if Nvidia allows it or it's public domain... Meaning someone else broke the NDA. Otherwise you will have to be just as out of the loop as I am since you would be receiving 0 sensitive information legally.

I also gave you an example where they could preempt your attempt at "guessing" anything by giving you just enough information to make it "not a guess". Or an industry source tells you Nvidia is having trouble getting something to work and may delay the launch... Not rightfully obtained. All Nvidia has to do is tell you under NDA that they might be delaying the launch to work on improving the tech an customer satisfaction. Again, good luck reporting on that and proving that you did not base it on info obtained under NDA.

People are taking this too lightly especially when it comes to companies that abused morality repeatedly and are already using the exact same tactics used now to gag people. Just as a hint: the NDA for developers using Nvidia Gameworks.
Posted on Reply
#102
ajc9988
"jabbadap said:
They really can't hide that kind of flaw. If tests shows that there's slower part of memory, it's easy to prove with showing test data that the flaw exists and you don't have to use nvidia given "Confidential information" as source. It's even actually said on that nda in chapter 3. Recipient shall not be liable for disclosure of Confidential Information that... c) is or was independently developed by employees of recipients.
So, that may be true, but without a so-called "Chinese Firewall" between the employees given the information by Nvidia and employees that discovered the flaw, you can run into issues. Specifically, if the employee was given information on the design and the flaw, but told they cannot disclose it, by knowing about the flaw, they cannot independently test for it because they had knowledge of its existence due to the Nvidia disclosure. If they ask for an employee to look for the flaw, generally, but not specifically, it still doesn't work because they already knew of its existence, so the entire direction to search for it came based on the underlying disclosure. This means to properly comply, there must be some employees that test products that have no connection or direction by anyone privy to the disclosures and no communication on the topic of products between those with and without the knowledge from the company. Law firms do this all the time. I don't think this setup is normal for tech journalism, though. Run this by your attorney in your jurisdiction, potentially.
Posted on Reply
#103
Casecutter
I say this... If a site/reviewer signs such an NDA please just indicate that you could or might be termed as a "Product Influencer" as being subjugated to a long-term Non-Disclosure Agreement with the company, that's least an ethical thing to do.
Posted on Reply
#104
cadaveca
My name is Dave
"Casecutter said:
I say this... If a site/reviewer signs such an NDA please just indicate that you could or might be termed as a "Product Influencer" as being subjugated to a long-term Non-Disclosure Agreement with the company, that's least an ethical thing to do.
Any "launch day" review is subject to NDA of some sort.
Posted on Reply
#105
W1zzard
"close said:
@[USER=43587]btarunr[/USER]: Imagine we are in September 2014 when GTX 970 was launched. You find out from a leaker that Nvidia knows about the 3.5GB RAM issue and you plan to publish an article. But Nvidia preempts your move by officially disclosing this info under NDA (perhaps attached to a sob story of how they're working to fix it to make it look less "covering tracks" and more "working for you").

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.
Nvidia didn't provide that information, so it's fine to post. And yes we would post it, probably talk to Nvidia before to get their thoughts and some possible explanation.
Posted on Reply
#106
mat9v
"W1zzard said:
Nvidia didn't provide that information, so it's fine to post. And yes we would post it, probably talk to Nvidia before to get their thoughts and some possible explanation.
What would happen if in such a case, Nvidia mentioned, or even openly stated in response to your query, that due to the memory configuration it would work slower then advertised and they are working on a software/firmware workaround? Would such an information about the existing problem be under NDA and would you be obligated to keep it secret?
Posted on Reply
#107
looniam
this dog (NDA) is all bark and no bite.

it's funny but sad to think some folks' interpretation of it would be enforceable by law. but then again people think all EULAs are . . . .
Posted on Reply
#108
R-T-B
"close said:
I used the "popular" definition as "a person who writes for newspapers, magazines, or news websites or prepares news to be broadcast".
That was the definition I was going with as well.

I'm not taking anything away from certified journalists mind, I was on the track to be one. As you may have guessed by my lack of credentials, it isn't easy nor something to scoff at.
Posted on Reply
#109
close
"cadaveca said:
Any "launch day" review is subject to NDA of some sort.
But aren't run of the mill NDAs just preventing you from publishing the review for the part you received before the launch of said part? Which is fair, you get a sample in advance so you can prepare the review, not so you can ruin the launch. But it feels like this NDA goes well beyond that. It leaves the distinct impression that it's aimed at blocking a lot more than reviews before that actual launch.
Posted on Reply
#110
cadaveca
My name is Dave
"close said:
But aren't run of the mill NDAs just preventing you from publishing the review for the part you received before the launch of said part? Which is fair, you get a sample in advance so you can prepare the review, not so you can ruin the launch. But it feels like this NDA goes well beyond that is leaves the distinct impression that it's aimed at blocking a lot more than reviews before tha actual launch.
Nothing in this NDA is non-standard. That's the thing. I think someone realized that if someone unfamiliar read this stuff, they'd get all uppity about it... and it seems they were right. :P
Posted on Reply
#111
Xzibit
"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.
Think HardOCP clarified their stance on chocolate

SickBeast
Fair enough You are both saying opposite things. And I'm not sure why. I trust you both actually. I don't understand the confusion. Tech power up is agreeing with my friend also. There could be more to this story.
Kyle Bennett
As I said above said:
I say this... If a site/reviewer signs such an NDA please just indicate that you could or might be termed as a "Product Influencer" as being subjugated to a long-term Non-Disclosure Agreement with the company, that's least an ethical thing to do.
It would also be dependent on how its signed. As an individual or as a company.

The majority of techsite (US based) aren't in compliance with FTC guidance on disclosures. Even if they been in business for several years. If they haven't cared about following certain rules for their existence, don't expect them to follow them now.

The most recent well known incident was involving PCPerspective.
Posted on Reply
#112
W1zzard
"mat9v said:
What would happen if in such a case, Nvidia mentioned, or even openly stated in response to your query, that due to the memory configuration it would work slower then advertised and they are working on a software/firmware workaround? Would such an information about the existing problem be under NDA and would you be obligated to keep it secret?
"Work slower than advertised", that part I knew before contacting NVIDIA. So I could still run the story, with teh same information I had before contacting NVIDIA, so nothing lost, possibly something gained because NVIDIA might allow me to publish they additional information they provided.

If they openly state or their information is released by a 3rd party, it wouldn't fall under the NDA
Posted on Reply
#113
HTC
"cadaveca said:
Nothing in this NDA is non-standard. That's the thing. I think someone realized that if someone unfamiliar read this stuff, they'd get all uppity about it... and it seems they were right. :p
Would you not agree that not referring to a specific item / event for review as well as the length on the NDA are both non-standard?

I've never been under an NDA of any kind. That said, i'd expect an NDA to cover a product's launch (including it's launch date) or an event where one receives certain information to be disclosed only after (during?) the event in question.

This specific NDA is quite vague on what it encompasses and that seems to be the issue here, i think.

A question for @W1zzard : imagine the whole GPP thing came AFTER TPU signed this NDA. Would you be denied publishing some of the stuff that came to light by nVidia, as in, would it fall under this NDA?
Posted on Reply
#114
W1zzard
"HTC said:
Would you not agree that not referring to a specific item / event for review as well as the length on the NDA are both non-standard?
Not at all, for press/reviewers maybe. I'm also a software developer and have NDAs with many hardware companies that are exactly that: non-event/non-product specific, extremely long lived/automatic renewal, etc.

"HTC said:
imagine the whole GPP thing came AFTER TPU signed this NDA. Would you be denied publishing some of the stuff that came to light by nVidia, as in, it would fall under this NDA?
I don't see why it would fall under this (or any) NDA, unless NVIDIA provided the GPP contract to me in some sort of early briefing AND no third party ever leaks it.
Posted on Reply
#115
HTC
"W1zzard said:
Not at all, for press/reviewers maybe. I'm also a software developer and have NDAs with many hardware companies that are exactly that: non-event/non-product specific, extremely long lived/automatic renewal, etc.


I don't see why it would fall under any NDA, unless NVIDIA provided the GPP contract to me in some sort of early briefing AND no third party ever leaks it.
Thanks for the reply.

Automatic renewal, for an NDA? Had never heard of such cases.
Posted on Reply
#116
close
"cadaveca said:
Nothing in this NDA is non-standard. That's the thing. I think someone realized that if someone unfamiliar read this stuff, they'd get all uppity about it... and it seems they were right. :p
Then again the NDA signatory is prevented from discussing the terms of the actual NDA :). As someone who's signed plenty of NDAs including with companies like Intel, personally I can say that no other NDA that I have seen until now covers every single piece of information as "under NDA". In 99% of the cases they named the actual technologies that are under NDA, and the considerations for each. This is the first blanket ban on potentially everything. Maybe they are a common occurrence in some fields but it doesn't put the mind of the reader at ease.

And again, I have seen the NDA that game developers were asked to sign in order to use GameWorks and Nvidia used and abused it to the fullest extent. To the point where everyone was aware that what's happening is wrong but the financial incentives and legal deterrent of breaking it made it a moot point. Expect to hear more around 2020 if anyone still cares. And if the people who could report on it aren't under NDA :).

But in my opinion this is newsworthy. Readers should know that you could be sitting on a pile of relevant information and not be able to act on it regardless of who prevents you from doing it.

And to the example above, if during a presentation for people under NDA Nvidia would tell you all about the GPP program you would be forced to keep quiet until someone leaks it to public domain. While an NDA doesn't prevent leaks it does raise the bar for one. Just enough to save some sales maybe.
Posted on Reply
#117
cadaveca
My name is Dave
"HTC said:
Thanks for the reply.

Automatic renewal, for an NDA? Had never heard of such cases.
Oh, the things I cannot mention... :roll:

"close said:
Then again the NDA signatory is prevented from discussing the terms of the actual NDA :). As someone who's signed plenty of NDAs including with companies like Intel, personally I can say that no other NDA that I have seen until now covers every single piece of information as "under NDA". In 99% of the cases they named the actual technologies that are under NDA, and the considerations for each. This is the first blanket ban on potentially everything.

And again, I have seen the NDA that game developers were asked to sign in order to use GameWorks and Nvidia used and abused it to the fullest extent. To the point where everyone was aware that what's happening is wrong but the financial incentives and legal deterrent of breaking it made it a moot point. Expect to hear more around 2020 if anyone still cares. And if the people who could report on it aren't under NDA :).

But in my opinion this is newsworthy. Readers should know that you could be sitting on a pile of relevant information and not be able to act on it regardless of who prevents you from doing it.
I guess you haven't signed as many as I have at the stages I have. Most product development NDAs (both inside and out of the tech industry) are almost copy-pasta of this one, with company names changed.

I myself make people sign such an NDA all the time. The terms are pretty much EXACTLY the same.
Posted on Reply
#118
W1zzard
"HTC said:
Automatic renewal, for an NDA? Had never heard of such cases.
Some courts don't allow infinite duration NDAs, so that's how lawyers get around that
Posted on Reply
#119
bug
"W1zzard said:
Some courts don't allow infinite duration NDAs, so that's how lawyers get around that
The alternative being having to sign an NDA for each and every product you want to talk about with the company that makes it. Not the most workable solution.
Posted on Reply
#120
5150Joker
Kyle over at HardOCP is already suggesting everyone including TPU are shills. Personally I think he’s on an anti-nvidia crusade because he’s not getting preferential access anymore (nor should he) and now is resorting to banning long standing members on his forums that disagree with him. Sad to see the old man sink his website like that in a short amount of time.
Posted on Reply
#121
btarunr
Editor & Senior Moderator
"close said:
@[USER=43587]btarunr[/USER]: Imagine we are in September 2014 when GTX 970 was launched. You find out from a leaker that Nvidia knows about the 3.5GB RAM issue and you plan to publish an article. But Nvidia preempts your move by officially disclosing this info under NDA (perhaps attached to a sob story of how they're working to fix it to make it look less "covering tracks" and more "working for you").

Are you still allowed to publish this?
Yes, we won't be breaching NDA because the publicly reproducible screw-up won't be mentioned anywhere in NVIDIA's documentation (and hence won't be NDA-protected information).

[edit] W1zzard answered this.
Posted on Reply
#122
cadaveca
My name is Dave
"5150Joker said:
Kyle over at HardOCP is already suggesting everyone including TPU are shills. Personally I think he’s on an anti-nvidia crusade because he’s not getting preferential access anymore (nor should he) and now is resorting to banning long standing members on his forums that disagree with him. Sad to see the old man sink his website like that in a short amount of time.
He's more than welcome too, but he's not saving any face by taking this position.


Here's the deal: We are hardware reviewers. That means we get the hardware, we test, and then we report those findings. There is nothing about an NDA that can hide performance figures. Anything else NVidia, well, that's not part of a hardware review, so why anyone would think that we or anyone would cover that... is beyond me.

Anything else relating to NVidia is "news", and is posted by completely different people. NDA does not apply to them, since the news posters don't do hardware reviews.

If that somehow makes any of us a shill... I guess the definition of what a shill is needs to be re-written.
Posted on Reply
#123
Rockarola
I have been under a few NDAs and half of them aren't enforceable within the EU...hell, quite a few aren't even enforceable outside of the country/US state it's written in. Consumer protection trumps NDAs in the EU legal process, as far as I know.

Speaking of AFAIK, can we please have a proper lawyer in this thread? I am (very) inclined towards trusting Wizz, Dave, The Frog, etc, but I'm pretty sure I haven't seen a post by a proper business lawyer in here.
(could be a good follow-up to this editorial)

(edited for clarity and atrocious punctuation)
Posted on Reply
#124
rainzor
Seems like Gamersnexus got a lawyer to clarify some things. Hopefully i'm allowed to post their content here?

<div class="youtube-embed" data-id="7SXmkk_yVMU"><img src="https://i.ytimg.com/vi/7SXmkk_yVMU/hqdefault.jpg" /><div class="youtube-play"></div><a href="https://www.youtube.com/watch?v=7SXmkk_yVMU" target="_blank" class="youtube-title"></a></div>
Posted on Reply
#125
cadaveca
My name is Dave
"rainzor said:
Hopefully i'm allowed to post their content here?
We will never prevent someone from doing so from any review site... there's no reason for us to. I like to think that we are all working together, anyway, even when we don't agree on things. Posting something on-topic is far different than making a thread just to give another site some traffic. ;)

I would, however, like to know the name of the law firm this lawyer works for, because anyone can "pretend" to be a lawyer.
Posted on Reply
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