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
5150Joker
rainzor said:
Seems like Gamersnexus got a lawyer to clarify some things. Hopefully i'm allowed to post their content here?


Well well well, looks like Kyle and that German site clickbaited more NVIDIA hate again, what a shocker.
Posted on Reply
#2
Rockarola
rainzor said:
Seems like Gamersnexus got a lawyer to clarify some things. Hopefully i'm allowed to post their content here?


THANK YOU!
To quote Jack The Lawyer... "It seems like making a mountain out of a molehill"

He basically inferred that every NDA is the same, this one just used a slightly strange (non-legal) term.

(you've just made quite a few conspiracy theorists very sad...congratulations!)
Posted on Reply
#3
Xzibit
cadaveca said:

I would, however, like to know the name of the law firm this lawyer works for, because anyone can "pretend" to be a lawyer.
Maybe its his real estate lawyer or his tax lawyer, the important thing is its a lawyer. /s

Even then he had issues with the wording. Which he went back and forth on during the Q&A.
Posted on Reply
#4
HTC
Xzibit said:
Maybe its his real estate lawyer or his tax lawyer, the important thing is its a lawyer. /s

Even then he had issues with the wording. Which he went back and forth on during the Q&A.
A question to those that signed NDA(s) (this NDA and / or others): this lawyer finds the wording "a bit weird" so, what if nVidia were to try and enforce this NDA "to the letter", as in, not what we (those that sign this NDA) think it means but rather what nVidia claims it means? Perhaps the wording is "a bit weird" on purpose.
Posted on Reply
#5
cadaveca
My name is Dave
Xzibit said:
Maybe its his real estate lawyer or his tax lawyer, the important thing is its a lawyer. /s

Even then he had issues with the wording. Which he went back and forth on during the Q&A.
No, he didn't have issues... he said it was "weird" but did not raise any red flags. He actually dismissed it. Said "ehuh.. yeah whatever", in fact. Also said "focus on the multiple terms, and not the 'solely for the benefit of'". Good job on skewing it to your perspective tho. :p

He also said "Seems like uh making a mountain out of a molehill" and "seems like a pretty boring NDA to me".

All roughly at the 27 minute mark. ;)
Posted on Reply
#6
Xzibit
cadaveca said:
No, he didn't have issues... he said it was "weird" but did not raise any red flags. He actually dismissed it. Said "whatever", in fact. Good job on skewing it to your perspective tho. :p
Oh silly you....

Do I need to time stamp it for you.

He then jumps to the other paragraph. No skewing needed if hes unsure. You saying trust an unsure lawyer. No thank you. Your welcome to do that.

[SIZE=6]
Jack The lawyer

Jack The lawyer
"Who knows what that means"
[/SIZE]
Posted on Reply
#7
cadaveca
My name is Dave
At your time stamp he said:

"I don't know exactly what that means" (because its not legalese is my guess). "I don't like it, but whoever is reading this shouldn't be terribly concerned about it", and then made all those statements I gave above.


Edit:
The thing is, as a lawyer, you know that things that are open to interpretation are not "legalese". What this means is that there is no defined legal definition for that term. As a average person, he said, you could interpret it in many ways. What matters, is how the person signing it interprets it, and as such, is not cause for alarm.

You see, this is what lawyers depends on... the things that aren't defined. It is their job to argue that definition, in regards to the law.
Posted on Reply
#8
Xzibit
cadaveca said:
At your time stamp he said:

"I don't know exactly what that means" (because its not legalese is my guess). "I don't like it, but whoever is reading this shouldn't be terribly concerned about it", and then made all those statements I gave above.
Yes, At the same time I wouldn't be dismissing those who have issues with it when the proof of dismissing such is by a lawyer who doesnt know what that means.

In the US you can always revise something if you don't like. Send it back see if they accept the changes or clarification. If they do or don't go from there.
Posted on Reply
#9
cadaveca
My name is Dave
Read my edit. As a business owner that has customers sign NDAs myself (I do not want my customers talking about what I do for them, as that knowledge is what gets me paid), I am far more familiar with legal proceedings for things like this than it might seem. As such, I FULLY understand what he was saying (see my edit above), but maybe you didn't?

Edit:

to clarify why I have people sign NDAs, I do social media roll-outs for small and medium businesses.
Posted on Reply
#10
Xzibit
HTC said:
A question to those that signed NDA(s) (this NDA and / or others): this lawyer finds the wording "a bit weird" so, what if nVidia were to try and enforce this NDA "to the letter", as in, not what we (those that sign this NDA) think it means but rather what nVidia claims it means? Perhaps the wording is "a bit weird" on purpose.
Its vague for a reason.

Its up to the individual what they are willing to accept. Its all fine and dandy to discuss this until your found in breach and if they decided to pursue.

The judge favoring the "disclosing party" will be almost a certainty.
Posted on Reply
#11
cadaveca
My name is Dave
Xzibit said:
The judge favoring the "disclosing party" will be almost a certainty.
Doesn't work that way. Hence the mention in that video of "reasonable person". "Reasonable person" is legalese. If a reasonable person would think otherwise, it doesn't matter what the judge thinks. That's also why that "lawyer" said it wasn't worth worrying about. (you can google "reasonable person".)

Our job as a reviewer is to judge both the good and bad, and relay it to our readers, and the bad things mentioned are a way of letting a company know how they can improve. That is to their benefit. This is acceptable to a reasonable person as true, since all reviews carry a list of pros and cons. That means there is no "control" to be had on a reviews outcome via this NDA, as some would like to infer.
Posted on Reply
#12
Rockarola
HTC said:
A question to those that signed NDA(s) (this NDA and / or others): this lawyer finds the wording "a bit weird" so, what if nVidia were to try and enforce this NDA "to the letter", as in, not what we (those that sign this NDA) think it means but rather what nVidia claims it means? Perhaps the wording is "a bit weird" on purpose.
That would require a judge to set a precedence, which is very rare in contractual law. Legalese is a very static language and legal professionals depend on speaking the same language. (there's nothing inferred in a contract, it's either there or it's not...that phrase is *not* there in a court)
Posted on Reply
#13
Xzibit
cadaveca said:
Doesn't work that way. Hence the mention in that video of "reasonable person". "Reasonable person" is legalese. If a reasonable person would think otherwise, it doesn't matter what the judge thinks. That's also why that "lawyer" said it wasn't worth worrying about. (you can google "reasonable person".
Care to put it to the practice

If a reasonable person "jack the lawyer" didn't know what it meant and went ahead and signed it.
Posted on Reply
#14
cadaveca
My name is Dave
Xzibit said:
Care to put it to the practice

If a reasonable person "jack the lawyer" didn't know what it meant and went ahead and signed it.
You obviously didn't look up what "reasonable person" means. I'll leave a link for those too lazy to google:

https://legal-dictionary.thefreedictionary.com/Reasonable+Person

And yes, I have put it to practice here in Canada, and lost. :p That's why I'm pretty familiar with this stuff. I learned the hard way... by literally paying for it :p

Further to this point, you must look at those terms as the person who would be signing it; a hardware reviewer. Any hardware reviewer knows that feedback to a product maker, both positive and negative, are not only normal and expected, but wanted. Our way of doing business is showing both good and bad of a product. If we have no bad, then it is not a review; it is marketing. ;)
Posted on Reply
#15
Xzibit
cadaveca said:

And yes, I have put it to practice here in Canada, and lost. :p That's why I'm pretty familiar with this stuff. I learned the hard way... by literally paying for it :p
Nvidia is in California and included Delaware Corp.

NDA is Delaware law governed. Should have drafted your NDA there they favor corporations.

Care to provide a draft of your NDAs to compare ? If your drafting NDAs that your loosing money on would you not then change them?
Posted on Reply
#16
cadaveca
My name is Dave
Xzibit said:
Nvidia is in California and included Delaware Corp.

NDA is Delaware law governed. Should have drafted your NDA there they favor corporations.

Care to provide a draft of your NDAs to compare ?
My NDA is more specific, so as to protect me. That's the only difference here, and what I learned about this... if you have specific expectations, you have to specify them in a specific way (which is pretty funny to me, but OK, I was wrong to expect my customers to look at things my way, just simply because we both own businesses. The truth is that we are usually in different industries, so that means my customers would not have the same knowledge to base their interpretations on). Because of those specifics, no, I cannot share my own NDA forms.

Contractual law is pretty awesome, and still way over my head.. all I can share is what I've learnt and my experience. Like that "Reasonable Person" is actually defined by law. Any terms that are not defined by law are what get you into trouble.

For example, this NDA. You'll note that they defined what "Confidential Information" was... because they had to. They did not define "for NVIdia's benefit", leaving it open to "Reasonable Person" arguments. NVidia's lawyers knew this when the NDA was drafted (as evidenced by the definition of "confidential information"), and they did not define what that meant... which means those claims about trying to control the outcome of a review are not "reasonable".
Posted on Reply
#17
btarunr
Editor & Senior Moderator
rainzor said:
Seems like Gamersnexus got a lawyer to clarify some things. Hopefully i'm allowed to post their content here?


Great so, even he says it's not a big deal.

TPU too has access to a Stuttgart-based corporate lawyer who can parse legalese.
Posted on Reply
#18
RejZoR
You don't need a bloody lawyer to understand the NDA posted in first post lol. I understand it and I'm neither lawyer or a native English speaker. Come on guys.
Posted on Reply
#19
W1zzard
RejZoR said:
You don't need a bloody lawyer to understand the NDA posted in first post lol. I understand it and I'm neither lawyer or a native English speaker.
Same here :)
Posted on Reply
#20
behrouz
Does it apply to GTX970's Fiasco? Yes or no.
Posted on Reply
#21
Alexandru Laslau
Doesn't this mean that cases such as 3.5 GB = 4 GB can NEVER be publicized by reviewers under NDA ?
Posted on Reply
#22
londiste
Alexandru Laslau said:
Doesn't this mean that cases such as 3.5 GB = 4 GB can NEVER be publicized by reviewers under NDA ?
No, unless Nvidia comes to reviewer and says 3.5GB = 4GB and this is Confidential Information. If this is found by reviewers themselves, they can by all means publish it.
Posted on Reply
#23
Alexandru Laslau
londiste said:
No, unless Nvidia comes to reviewer and says 3.5GB = 4GB and this is Confidential Information. If this is found by reviewers themselves, they can by all means publish it.
So if Nvidia states : We have a workaround for memory distribution in this line of cards which involves tearing down some of the silicon ....
Reviewer can't tell us this stuff, so the answer here is "Maybe".
Posted on Reply
#24
W1zzard
Alexandru Laslau said:
So if Nvidia states : We have a workaround for memory distribution in this line of cards which involves tearing down some of the silicon ....
Reviewer can't tell us this stuff, so the answer here is "Maybe".
See my response earlier on exactly that topic.
Posted on Reply
#25
Gasaraki
All the armchair quarterbacks here needs to shut up. The other sites already said this is a normal NDA, nothing to see. Only people who have never seen a NDA would have their panties in a knot.
Posted on Reply
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