Be it a database server or an air purifier, do you have the legal right to publicly criticize a product you've purchased? The good news is, yes, you apparently still do. The bad news is that we can't be sure for how much longer.
We owe the good news to Consumers Union's success last week in getting a SLAPP (Strategic Lawsuits Against Public Participation) lawsuit by Sharper Image thrown out of court. Sharper Image had accused Consumers Union of product disparagement due to reviews it published in Consumer Reports of the Ionic Breeze Quadra air cleaner. Consumers Reports deemed the product "ineffective" and said it produces "almost no measurable reduction in airborne particles." Sharper Image argued that the reviews were flawed and unfair because Consumer Reports failed to take into account how "vastly different" its technology is from other air purifiers. Under California's anti-SLAPP law, a federal judge ruled there was no reasonable probability of Consumer Reports' statements being proved false and dismissed Sharper Image's case. (For more background on the case and similar lawsuits Consumers Union has had to fight off in the past, visit their www.consumersrighttoknow.org website.)
Reading over Sharper Image's arguments, though, I was struck by how similar what they were saying is to what we we've just been hearing from those who defend censorship clauses in software license agreements. (For a taste of the pros and cons on those, see the reader commentary on my recent "Getting the Facts on Microsoft Benchmarks" story.) Like the Microsofts and Oracles, Sharper Image was essentially claiming that only they can judge how, where, and by whom their technology can be assessed. Only we understand our technology, so anyone who criticizes our products is unfairly disparaging us.
Now, as far as I know, Sharper Image doesn't have a EULA on its air purifiers saying you have to get their permission to publish reviews or benchmark performance results. And I don't know of any software companies that do have such EULAs ever having gone so far as to actually try to file a lawsuit against a customer for violating the censorship clause. Still, I have to believe it's only a matter of time until we see the combination -a SLAPP-type lawsuit based on violating a EULA censorship clause. What I don't know is whether the first one will be over middleware or a household item. More and more, SLAPP lawsuits are standard operating procedure for any number of corporate giants that care less about whether they win or lose the case than they do using their legal muscle to harass critics however they can. And EULAs have shown up on toner cartridges and woodworking tools, so why not air purifiers?
The bad news is that such a lawsuit almost surely won't be filed against Consumers Union or someone else with the ability to fight back. SLAPP lawsuits and censorship are identical in the respect that they are at their most effective in silencing those who don't have the legal means to resist the threats. And that's all the more reason why we need to raise our voices loud and clear against the companies that use them -- just to help make sure they get the tarnished image they deserve.
Post your comments about this story here or read what your fellow readers have to say. You can also write me directly at Foster@gripe2ed.com.
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