Analyst organisation Gartner Group is advising organisations to
seek legal advice before they enter into 'gagging' contracts with
software companies.
Businesses should check the small print of their contracts and
ensure that they do not sign anything unless a freedom of speech
clause is present, Gartner recommended.
The advice has been issued after the New York's attorney general
launched legal action against Network Associates in a bid to lift
rules that prohibit it from talking about the company's software.
The case highlights a deep-seated problem in the IT industry. Many
large software vendors, such as Oracle and Microsoft, make
customers sign contracts that stipulate they cannot talk about the
performance of the product they have purchased without prior
consent.
"The vendors want to protect and control information about their
products," commented Tom Austin, a Gartner research fellow. "They
claim that they only want to ensure that misleading information
isn't published, and they have every right to protect their
property. However, Gartner believes performance information that
the enterprise gathers isn't their [the vendor's] property."
An Oracle contract states: "You may not disclose results of any
program benchmark tests without Oracle's written consent," while a
Microsoft contract declares, "You may not disclose the results of
any benchmark test to any third party."
However, Ronan Miles, chairman of the Oracle User Group (OUG)
thinks that whatever gagging clauses are contained in contracts,
information will always get out.
"As part of the user group, we're always sharing information on
best practice. I can't possibly envisage any instance where Oracle
could or would invoke any such clause," Miles said.
Gartner believes disclosure of such information could have saved
organisations from software problems. "Some of the damaging
information could have protected prospective buyers from selecting
the wrong product," Austin said.
Austin advised companies to check contracts thoroughly before they
purchase software, and recommends contract language that declares
that the customer is free to discuss the vendor's products.