5 ms·

I'm really curious how Intel could even imagine this is enforceable. For instance, if I have a server with shell access for many users, am I supposed to forbid

I'm really curious how Intel could even imagine this is enforceable. For instance, if I have a server with shell access for many users, am I supposed to forbid my users from publishing benchmarks? If they do, am I liable since I "agreed" to the license? Or are they, even though they never "agreed" to the license? It just doesn't make sense.

muppetman 8y ago
Surely it's just designed to scare the big media websites from publishing numbers.
- 0x8BADF00D 8y ago
  This is censorship, plain and simple. They cannot command everyone to abridge their speech, even if their license terms say so. It is unenforceable and illegal.
  - lathiat 8y ago
    It's also crazy to my mind. The reality is these various issues are all having potentially significant impacts on performance -- and it's not just the microcode related changes, but also the kernel changes, etc. It is kind of ridiculous to require everyone to do their own testing and not allow basic numbers to be published. I also find it fascinating in that in theory your BIOS update can include these changes.. does this anti benchmark license apply if you reflash a new BIOS or just buy a new motherboard with the new bios and then use the same type of CPU to compare? Makes me want to look at some BIOS and motherboard EULAs now...
    - SmellyGeekBoy 8y ago
      This is a very good point. What about replacing a motherboard (but not CPU) due to motherboard failure or just to get some extra feature or other? If the new BIOS includes the microcode updates are you legally forbidden from benchmarking your old CPU?
    - catamorphismic 8y ago
      Very good point. I'd like to add that this is not just kind of ridiculous, it is just plain ridiculous. Also, we have the right to publish any benchmark numbers, not just basic numbers. This isn't a time for weak wording.
  - p1necone 8y ago
    I mean, they can probably say whatever they want, but this is not a legal thing - all they can do is refuse to sell you more hardware for violating their contract.
    - phyller 8y ago
      NDA's are legal right? This is like a permanent NDA. I wonder if people can refuse to download the microcode because of the license, and then sue Intel for the vulnerability. I'm thinking probably not. Might want to get your next chips from AMD.
  - TomMckenny 8y ago
    Given that the dissenting justice for "TransAm Trucking v. Administrative Review Board" is now on the supreme court, I'm thinking contracts will indeed supersede protections (unless every possible permutation is explicitly enumerated in legislation as if forever battling the "literal genie").
  - stock_toaster 8y ago
    They also basically sold a defective part, and to fix it you have to agree to something additional post-sale. That is pretty damn questionable.
- wtallis 8y ago
  It wouldn't work. Even online media gets pretty strong first amendment protections that mean Intel wouldn't have a complete open and shut case, and we tech journalists are smart enough to be able to get the same microcode updates through other channels that don't have the same strings attached. If it's meant to deter anybody, it's the big corporate customers and competitors.
  - Fzzr 8y ago
    Unfortunately, the First Amendment does not protect against private action, only government restraints on speech. Other mechanisms like anti-SLAPP laws might help with that, but either way that's a lot of legal effort to publish some benchmarks. Intel also operates all over the world, so they could eg. sue a Britain-based branch of some media outlet that also publishes the numbers if the laws there are more in their favor.
    - wtallis 8y ago
      The First Amemdment itself doesn't directly apply to Intel, but there are a lot of relevant legal protections pertaining to the general idea of protecting the press. In particular, this seems to be fundamentally a copyright license that's at issue. News reporting, scholarship and research are all explicitly listed as purposes that can qualify as fair use. Using copyrighted material to research and report on the nature of defective goods being sold to the public strikes me as pretty likely to be ruled as fair use, especially when using the copyrighted microcode in a manner contrary to Intel's license is necessary to properly fact-check a news story about their processor flaws.
  - hvidgaard 8y ago
    Online media often relies on hardware directly from the manufacture when they get to test it before official release. Nothing stops Intel from not sending them anything anymore, and then they have to buy it from the stores like everybody else.
    - wtallis 8y ago
      I'm well aware of the theoretical possibility of Intel blacklisting publications. In practice, it only works against smaller publications and would backfire spectacularly if they tried it against the larger publications. Intel has more to lose than any one tech publication.
- Fzzr 8y ago
  The license can't restrict third parties from sharing benchmarks, which is why it puts the onus on the user not to allow third parties to share them. If some news site was to publish benchmarks without disclosing the source, Intel would first have to take them to court to force them to disclose who provided said benchmarks. That's as far as I can see it directly impacting sites that don't run their own benchmarks. That said, the sites that do run their own benchmarks would be on the hook. Sadly, even if this is unenforceable, the potential legal battle to have it declared so would be scary enough to quash some criticism. This really makes me doubt if I should buy Intel products in the future (to the extent that I have a choice). If I can't get performance information because Intel has something to hide, I'll have to look elsewhere. Really, this is sufficiently distasteful behavior to make me avoid Intel even if the products work just fine.
  - msiyer 8y ago
    > Sadly, even if this is unenforceable, the potential legal battle to have it declared so would be scary enough to quash some criticism. I have seen this happen in so many cases all over the world. Supreme Court orders can be ignored by the government agencies and even private parties as long as no one drags them to court. Spending a 100 million dollars is nothing for the government or influential private parties as big as Intel. The small guy, however, will be bankrupted. Be it the government or the big corporate, it is effectively the public money being used against the public. How absurd. This shows that money is necessary for justice. This is dangerous. Why can we not have systems that detect such frauds and automatically discipline such entities? It is not like such violations are happening behind closed doors of a small house in an inaccessible jungle. These violations are public.
  - spacenick88 8y ago
    This becomes doubly interesting once those users are in a different jurisdiction. I highly doubt a EU court would be willing to uphold such a bullshit term for a US company. Especially since many EU countries have quite strong laws against unexpected/unreasonable licensing terms.
- Yokohiii 8y ago
  I'd rather assume that it is in place to keep kernel and distro devs at bay.
Someone1234 8y ago
Or you buy a CPU that was previously patched, even by Intel themselves.
- paulie_a 8y ago
  Or you outright ignore the stipulation and do whatever the hell you want. Quite frankly I hope to see some benchmark articles that literally start with profanity telling Intel where to stick it.
  - bionsystem 8y ago
    This, definitely. This whole thing is bullshit. What are they going to do, sue the hell out of absolutely everyone who publishes any sort of benchmark about their hardware ? What do they want for themselves, become a lawyer's cabinet like Oracle ?
- fuzzy2 8y ago
  The CPU isn't patched, not permanently. This update must be loaded after every processor reset.
lathiat 8y ago
Well the license specifically says you will not permit a third party to either. I don't really speak legalese, but does permit include having to then make all of your own users agree not to to avoid a penalty? As mentioned in the other comment thread though, I imagine the reality of this clause is to prevent media outlets (such as Phoronix who would traditionally do exactly this kind of benchmarking) from downloading the microcode and publishing numbers directly.
- ddtaylor 8y ago
  > Well the license specifically says you will not permit a third party to either. That might as well read as "you can't provide cloud computing" since you can't know what someone is going to execute on their server before they execute it!
  - aisofteng 8y ago
    And nobody releases production code to a cloud environment without performance testing of significant changes.
    - bionsystem 8y ago
      You could say they don't have to publish the results... Although it only differs the problem. If I build my SAAS on top of a cloud service that runs on Intel, and my customer complains about perf results of my software before and after, and makes the result available somehow (knowing that it's on updated microcode or not), who is responsible ? The cloud provider, myself, or my customer ? Etc etc. This is a legal mess and a strong attack on freedom.
  - ballenf 8y ago
    Not only that but standard development processes involve testing code against different environments. Comparing arbitrary code execution times on this platform versus another could easily be called 'benchmarking'. It's just so strange to sell a general purpose processor but then prohibit certain types of code depending on the state of mind of the developer. The same block of code could be permitted or prohibited based on the intent. It's nuts and a legal morass that is hard to imagine any lawyer proposing as a good idea.
alkonaut 8y ago
Has anything even remotely similar to this ever been enforced anywhere? (Apart from the US)? Once I have the application (or in this case, the microcode) it would seem the data I produce with it is mine to do as I please with? Otherwise it would be like microsoft saying that I couldn't publish any .docx files online that I produced with their software?
EGreg 8y ago
NDAs are stupid for the sams reason. Your rich uncle who never signed it can go use the idea, while you remain poor let’s say. Who are they gonna go after?
wemdyjreichert 8y ago
I would guess this is designed to Target tech news orgs who report benchmarks. Can't prevent every forum post; media is a bigger than. However, someone's going to go to a benchmarks database and look at new results compared with old ones and figure it out.

muppetman 8y ago

Surely it's just designed to scare the big media websites from publishing numbers.

0x8BADF00D 8y ago
This is censorship, plain and simple. They cannot command everyone to abridge their speech, even if their license terms say so. It is unenforceable and illegal.
- lathiat 8y ago
  It's also crazy to my mind. The reality is these various issues are all having potentially significant impacts on performance -- and it's not just the microcode related changes, but also the kernel changes, etc. It is kind of ridiculous to require everyone to do their own testing and not allow basic numbers to be published. I also find it fascinating in that in theory your BIOS update can include these changes.. does this anti benchmark license apply if you reflash a new BIOS or just buy a new motherboard with the new bios and then use the same type of CPU to compare? Makes me want to look at some BIOS and motherboard EULAs now...
  - SmellyGeekBoy 8y ago
    This is a very good point. What about replacing a motherboard (but not CPU) due to motherboard failure or just to get some extra feature or other? If the new BIOS includes the microcode updates are you legally forbidden from benchmarking your old CPU?
  - catamorphismic 8y ago
    Very good point. I'd like to add that this is not just kind of ridiculous, it is just plain ridiculous. Also, we have the right to publish any benchmark numbers, not just basic numbers. This isn't a time for weak wording.
- p1necone 8y ago
  I mean, they can probably say whatever they want, but this is not a legal thing - all they can do is refuse to sell you more hardware for violating their contract.
  - phyller 8y ago
    NDA's are legal right? This is like a permanent NDA. I wonder if people can refuse to download the microcode because of the license, and then sue Intel for the vulnerability. I'm thinking probably not. Might want to get your next chips from AMD.
- TomMckenny 8y ago
  Given that the dissenting justice for "TransAm Trucking v. Administrative Review Board" is now on the supreme court, I'm thinking contracts will indeed supersede protections (unless every possible permutation is explicitly enumerated in legislation as if forever battling the "literal genie").
- stock_toaster 8y ago
  They also basically sold a defective part, and to fix it you have to agree to something additional post-sale. That is pretty damn questionable.
wtallis 8y ago
It wouldn't work. Even online media gets pretty strong first amendment protections that mean Intel wouldn't have a complete open and shut case, and we tech journalists are smart enough to be able to get the same microcode updates through other channels that don't have the same strings attached. If it's meant to deter anybody, it's the big corporate customers and competitors.
- Fzzr 8y ago
  Unfortunately, the First Amendment does not protect against private action, only government restraints on speech. Other mechanisms like anti-SLAPP laws might help with that, but either way that's a lot of legal effort to publish some benchmarks. Intel also operates all over the world, so they could eg. sue a Britain-based branch of some media outlet that also publishes the numbers if the laws there are more in their favor.
  - wtallis 8y ago
    The First Amemdment itself doesn't directly apply to Intel, but there are a lot of relevant legal protections pertaining to the general idea of protecting the press. In particular, this seems to be fundamentally a copyright license that's at issue. News reporting, scholarship and research are all explicitly listed as purposes that can qualify as fair use. Using copyrighted material to research and report on the nature of defective goods being sold to the public strikes me as pretty likely to be ruled as fair use, especially when using the copyrighted microcode in a manner contrary to Intel's license is necessary to properly fact-check a news story about their processor flaws.
- hvidgaard 8y ago
  Online media often relies on hardware directly from the manufacture when they get to test it before official release. Nothing stops Intel from not sending them anything anymore, and then they have to buy it from the stores like everybody else.
  - wtallis 8y ago
    I'm well aware of the theoretical possibility of Intel blacklisting publications. In practice, it only works against smaller publications and would backfire spectacularly if they tried it against the larger publications. Intel has more to lose than any one tech publication.
Fzzr 8y ago
The license can't restrict third parties from sharing benchmarks, which is why it puts the onus on the user not to allow third parties to share them. If some news site was to publish benchmarks without disclosing the source, Intel would first have to take them to court to force them to disclose who provided said benchmarks. That's as far as I can see it directly impacting sites that don't run their own benchmarks. That said, the sites that do run their own benchmarks would be on the hook. Sadly, even if this is unenforceable, the potential legal battle to have it declared so would be scary enough to quash some criticism. This really makes me doubt if I should buy Intel products in the future (to the extent that I have a choice). If I can't get performance information because Intel has something to hide, I'll have to look elsewhere. Really, this is sufficiently distasteful behavior to make me avoid Intel even if the products work just fine.
- msiyer 8y ago
  > Sadly, even if this is unenforceable, the potential legal battle to have it declared so would be scary enough to quash some criticism. I have seen this happen in so many cases all over the world. Supreme Court orders can be ignored by the government agencies and even private parties as long as no one drags them to court. Spending a 100 million dollars is nothing for the government or influential private parties as big as Intel. The small guy, however, will be bankrupted. Be it the government or the big corporate, it is effectively the public money being used against the public. How absurd. This shows that money is necessary for justice. This is dangerous. Why can we not have systems that detect such frauds and automatically discipline such entities? It is not like such violations are happening behind closed doors of a small house in an inaccessible jungle. These violations are public.
- spacenick88 8y ago
  This becomes doubly interesting once those users are in a different jurisdiction. I highly doubt a EU court would be willing to uphold such a bullshit term for a US company. Especially since many EU countries have quite strong laws against unexpected/unreasonable licensing terms.
Yokohiii 8y ago
I'd rather assume that it is in place to keep kernel and distro devs at bay.

Someone1234 8y ago

Or you buy a CPU that was previously patched, even by Intel themselves.

paulie_a 8y ago
Or you outright ignore the stipulation and do whatever the hell you want. Quite frankly I hope to see some benchmark articles that literally start with profanity telling Intel where to stick it.
- bionsystem 8y ago
  This, definitely. This whole thing is bullshit. What are they going to do, sue the hell out of absolutely everyone who publishes any sort of benchmark about their hardware ? What do they want for themselves, become a lawyer's cabinet like Oracle ?
fuzzy2 8y ago
The CPU isn't patched, not permanently. This update must be loaded after every processor reset.

lathiat 8y ago

Well the license specifically says you will not permit a third party to either. I don't really speak legalese, but does permit include having to then make all of your own users agree not to to avoid a penalty? As mentioned in the other comment thread though, I imagine the reality of this clause is to prevent media outlets (such as Phoronix who would traditionally do exactly this kind of benchmarking) from downloading the microcode and publishing numbers directly.

ddtaylor 8y ago
> Well the license specifically says you will not permit a third party to either. That might as well read as "you can't provide cloud computing" since you can't know what someone is going to execute on their server before they execute it!
- aisofteng 8y ago
  And nobody releases production code to a cloud environment without performance testing of significant changes.
  - bionsystem 8y ago
    You could say they don't have to publish the results... Although it only differs the problem. If I build my SAAS on top of a cloud service that runs on Intel, and my customer complains about perf results of my software before and after, and makes the result available somehow (knowing that it's on updated microcode or not), who is responsible ? The cloud provider, myself, or my customer ? Etc etc. This is a legal mess and a strong attack on freedom.
- ballenf 8y ago
  Not only that but standard development processes involve testing code against different environments. Comparing arbitrary code execution times on this platform versus another could easily be called 'benchmarking'. It's just so strange to sell a general purpose processor but then prohibit certain types of code depending on the state of mind of the developer. The same block of code could be permitted or prohibited based on the intent. It's nuts and a legal morass that is hard to imagine any lawyer proposing as a good idea.

alkonaut 8y ago

Has anything even remotely similar to this ever been enforced anywhere? (Apart from the US)? Once I have the application (or in this case, the microcode) it would seem the data I produce with it is mine to do as I please with? Otherwise it would be like microsoft saying that I couldn't publish any .docx files online that I produced with their software?

EGreg 8y ago

NDAs are stupid for the sams reason. Your rich uncle who never signed it can go use the idea, while you remain poor let’s say. Who are they gonna go after?

wemdyjreichert 8y ago

I would guess this is designed to Target tech news orgs who report benchmarks. Can't prevent every forum post; media is a bigger than. However, someone's going to go to a benchmarks database and look at new results compared with old ones and figure it out.