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
rtwjunkie
PC Gaming Enthusiast
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.
You sir, totally nailed how important it all is in real life by using chocolate! Excellent schooling....I hope those “affected” paid attention.
Posted on Reply
#2
Xzibit
cadaveca said:
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.
I was curious about this and Heise.de is 3x bigger than TPU (traffic wise). Interesting stats. One statistical site says 20-30% of TPU traffic is for GPU-Z. Globaly Heise.de is ranked x6 higher than TPU.

They also own print so they have a lot more to worry about if they have to sign it as a company and not a 1man operation reviewer.

I would Imagine they can afford good legal advise given their size

cadaveca said:
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.
On page 2

Nvidia NDA
"The laws of the State of Delaware, without reference to conflict of law principles shall govern this Agreement"
Posted on Reply
#3
cadaveca
My name is Dave
Xzibit said:
I was curious about this and Heise.de is 3x bigger than TPU (traffic wise). Interesting stats. One statistical site says 20-30% of TPU traffic is for GPU-Z. Globaly Heise.de is ranked x6 higher than TPU.

They also own print so they have a lot more to worry about if they have to sign it as a company and not a 1man operation reviewer.

I would Imagine they can afford good legal advise given their size
Hmm, that's quite interesting! I am not aware of non-English sites, so was referring to that. AnandTech, Tom's are the top two, and us and guru3d swap spots regularly that I have seen. I use Alexa for checking this though, so if you used a different site that might explain things too. I just checked Alexa, and yep, they are HUGE!!! they rank about 1250 out of all sites, and usually I see us @ around 5000 (sometimes higher, sometimes lower). Heise.de is DEFINITELY bigger. But in the US, they are pretty much non-existent (naturally, so not in my scope of lookking). There's probably other non-English sites that are equally large as well, too, I suppose. I only look into this in by-passing while doing my actual job, as that's one of the metrics we use to verify we've done a proper job. :p

And yeah, W1zz and GPU-Z is the reason people come here for sure.


That said though... what I said about tort law still definitely applies.



Xzibit said:
On page 2
They specify that so you know what version of legalese you need to use, FYI. ;) Not pointing out anything I didn't see myself. :p This is why some things are done in certain states, since the legalese changes from region to region. A lawyer's job is by no means easy, since that have to navigate all that. Knowing how to do that properly is why they make the big bucks. :p You can then break that down into different sections of the law, since you know, lawyers specialize... and that's WHY they specialize...
Posted on Reply
#4
Xzibit
cadaveca said:

They specify that so you know what version of legalese you need to use, FYI. ;) Not pointing out anything I didn't see myself. :p This is why some things are done in certain states, since the legalese changes from region to region. A lawyer's job is by no means easy, since that have to navigate all that. Knowing how to do that properly is why they make the big bucks. :p
Yes, I know. some comments here (and elsewhere) even by some who may have signed it refer to other country laws. Gives the impression they haven't read the entire thing.
Posted on Reply
#5
medi01
heise.de: The NDA should apply to all information provided by Nvidia, so it did not refer to a specific product or information. There was also no concrete expiration date.

Gasaraki said:
The other sites already said this is a normal NDA, nothing to see.
Oh, right, sure thing. There was also a lawyer that said "I don't know what it means (so it should be fine". Those stupid Germans just worry about nothing...

5150Joker said:
Well well well, looks like Kyle and that German site clickbaited
Gamernexus has exactly 0 credibility in general, let alone in controversies like this one.
"That German site" is much bigger than you think, doesn't need cheap clicks, loses much more by not getting review samples in advance.
Posted on Reply
#6
John Naylor
We see the same logic every time in politics, whwre a person decides they want to be offended and creates a narrative a wild stretch from that was actually written. Im still pissed that nVidia backed down from the partnership program ...

If imitation is the sincerest from of flattery, than AMD is flattering the hell out of its competitors....

X370 is not intended to mimic Z370 ?
Where did AMD come up with the 5 and 7 nomenclature for Ryzen ... remind you have anything ?
Why did AMD whine like hell when nVidia offered partners benefits if they agreed to reserve naming conventions exclusively to cards containing the shared technology benefits ?

The strategy is old and it's purpose transparent. When Johnny asks Mom for say a MSI GTX 1060 Gamer X for his birthday and Mom comes home with a MSI Gamer X from AMD that was $75 cheaper, Mom is happy she saved money, AMD is happy but Jonny is invariably disappointed.

I am still rooting for an AMD product that brings home the numbers, not in core counts or nm's but something that actually matters, performance in the apps I run and power. If they had something that was better, they would be trying to distnguish their product from the competition not whining about their right to imitate its naming conventions.
Posted on Reply
#7
Xzibit
medi01 said:
heise.de: The NDA should apply to all information provided by Nvidia, so it did not refer to a specific product or information. There was also no concrete expiration date.


Oh, right, sure thing. There was also a lawyer that said "I don't know what it means (so it should be fine". Those stupid Germans just worry about nothing...


Gamernexus has exactly 0 credibility in general, let alone in controversies like this one.
"That German site" is much bigger than you think, doesn't need cheap clicks, loses much more by not getting review samples in advance.
Just don't point out what Steve says 4min in to the video

GamerNexus Steve
From the reviewer side. A lot of the time when a product comes out. I'd say probably [B]90% of the time we don't sing a literal NDA[/B]
Posted on Reply
#9
Xzibit
cadaveca said:
LuLz. Meanwhile, I've had to sign for every single one other than memory. They are too far down da totem pole :p
Wow. Wouldn't Heise.de be able to say the same for anyone ranked below them.
Posted on Reply
#10
cadaveca
My name is Dave
Xzibit said:
Wow. Wouldn't Heise.de be able to say the same for anyone ranked below them.
Smiley in my post = joke. But yeah, you could say that then. :slap: So what? :D

I'm more concerned that you might have taken me seriously. :wtf:
Posted on Reply