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
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.
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.
159 Comments on Revised NVIDIA Reviewers NDA Raises Eyebrows: Our Thoughts
People often spend money just to feel good after reading one review on a big website. Almost no one does in-depth research or fact checks their purchase after they have made it.
As long as Nvidia can get glowing day 1 reviews, they can be content that 90% of people will not notice anything that emerges after. I don't even have the time to give endless examples of this - but I will mention the fact that Nvidia STILL gets praise for "good drivers" even after it has been quantified by Microsoft crash logs that Nvidia cards crash more often than AMD on average. Oh, and after how many drivers from Nvidia brick cards or break youtube every year?
But let's see what happens here. The article states TPU will stay honest, and generally speaking TPU has indeed been pretty trustworthy in their reviews over the years. I hope that remains true.
But drop this utter BS about Nvidia not having a motive to force stuff down reviewers throats. That's hilariously naive, and in fact makes me immediately question TPU's ability to even notice when they are being maliciously used for anti-consumer practices.
"Yes, as long as you can prove you got the info another way besides from the NDA'd group"
Seriously, that benefits nothing.
PS: I need to stop using the "we" here. I am speaking theoretically and I'm sure it pisses some people off. I don't work here anymore, to be clear.Do not confuse me for anything normal. Frog god hates normal. I love frog god. I have to or he'll make drown in tadpole.
A) Release my findings in the Review after the embargo.
B) Submit to the company my finding and wait till they respond.
C) Submit to the company the findings and just release without my finding after the embargo is lifted.
D) Submit to the company my finding and say you have up and until the embargo is lifted to respond.
I would say the biggest issue was the 5 year term and the amount of time that is provided to research or get counsel as to my possible risk. What are the terms if I later say I no longer want the be subjugated or participate in this what does it actual take in signatures, disclosures and time to not be under the stipulations of the NDA.
And again, I'll fully admit though I do have some legal knowledge, I am an internet lawyer (AKA not a real one, so beware).
Anyone else want to chime in on that point? I don't see a way they could prevent the publication of something you learned entirely seperate from NDA sources, even if they clued you into the issue, but I could be wrong.I don't think anyone questions whether they have motive to do so. Every company has motive to do so. The question is whether it's even practical for them to really try and I'd argue it isn't practical for them to try to alter reviews directly.
The obligation of confidentiality removes liability only if the info was "rightfully received without restriction of NDA". So I would say you will not be able to publish ANYTHING that comes from unofficial sources if you were also told by Nvidia under NDA. Unless they become "public domain" first, and someone else broke the news.
Also you are no longer allowed to post any editorials/opinions regarding Nvidia since anything you say would be based at least partly on confidential information received from them. So an article like "Why 2020 will be a hard year for Nvidia" or "What to expect from the GTX 2080" will be impossible without basing at least one statement on details mentioned under NDA by Nvidia. And I'm sure they have ways of sneaking everything you're told under this NDA.
Moreover, after signing this NDA you will not even be allowed to take part in discussions such as this one on the forum unless everything you say is unrelated to info you received from Nvidia.
So do you think you will be able to post an official answer to my original question after maybe consulting TPU's legal counsel?
Let's say for example that Nvidia provides a journalist with information that some announced product will have 8 GB of memory but due to construction limitations it will have 6GB of fast memory and 2GB of slower memory - in that case said journalist will be unable to mention such a nugget of information regardless of the time of product release - it is a secret and if Nvidia does not specifically release such an information to the public, reviewer is unable to mention it in any way.
Sure, such a situation is not very likely, but blanket NDA without any expiration date is hard to explain. Just my 2 cents.
As journalists that should scare you. Yet TPU's official position as indicated by this article is that "all's good". Even though you may be forced to sit on information that could be of public interest and not be able to report it in any way.
I find it fair to be told if this is indeed the official position of TPU. While I don't really doubt the integrity of people writing for TPU, after signing an NDA all bets are off and legality will probably precede integrity. Want it or not your hands are tied after signing. And this has to have a bearing on my views related to future Nvidia related articles.
The concern is gagging the CEO's statement that no new cards will be coming for a long time at a press engagement without express permission from Nvidia to report such with permission being in writing, or the GPP, which was discovered due to a violation of another person's NDA, which actually was leaked to AMD which then farmed out the story, which AMD in that situation may have partially sterilized it to allow for reporting, but getting other sources to speak off the record about confidential information, with Nvidia having already given confidential information to the journalist, to fill out the story on the GPP to get it to the public, that would be more difficult when complying with this agreement, potentially. That is why I used the GPP as an example.
If there is something that might affect the end user, it is testable, and obvious, and as such, as soon as the card is released, is not subject to NDA clauses. I can run my own tests, since I didn't sign that NDA, and post my results, with no recourse for NVidia against TPU, by the NDA itself. I love how people will comment about stuff , but clearly didn't read what they are commenting on. Clearly, you read it.
Anyway, as posted above, even if I was, it wouldn't matter. All that matters is that I do my own thing, independent from what the NDA signatory does, without info provided by said party.
So then take my question as "to whom it may concern". I initially addressed it to @btarunr since his title is "Editor".
Guess my point is since I can expect TPU reviewers to sign the NDA, I should also expect any and all Nvidia related articles to be censored in one way or another in order to eliminate any possible info declared confidential because it does not benefit Nvidia.
I'll give you an example:
So, I post the launch day of the next VGA. I guess this date, based on the past (ie, my birthday, which is when they usually launch cards), and I get this date right. Maybe this date is covered by NDA< but since it was not disclosed to me directly, should I decide to post it on the front page, they can't be held responsible for what I do, because IT SPECIFICALLY SAYS THAT in the NDA.
This ensures that the worries you have mentioned here are not a real worry... it just means that whoever signed the NDA will not be the person to explore such subjects. Fortunately, there are many people that contribute here.
But that was given as an example: It was a defect that was known by Nvidia well before launch and as far as tech news goes this was of public interest. But there are plenty of such examples where you would be interested in knowing and can't be "independently proved" by a reviewer. Any details that you can't squeeze out of the actual board that you buy will stay buried fro 5 years.
What if you find out that Nvidia is actively manipulating the cryptomining market to keep prices up? One Nvidia rep sends you an email under NDA giving you a short overview of how they are "developing new ecosystems" and "nurturing innovation" and then tells you all of this is for your eyes only. Good luck reporting on that.The signatory is also the only one receiving any information from Nvidia. The only way for anybody else at TPU to report on that information is if Nvidia allows it or it's public domain... Meaning someone else broke the NDA. Otherwise you will have to be just as out of the loop as I am since you would be receiving 0 sensitive information legally.
I also gave you an example where they could preempt your attempt at "guessing" anything by giving you just enough information to make it "not a guess". Or an industry source tells you Nvidia is having trouble getting something to work and may delay the launch... Not rightfully obtained. All Nvidia has to do is tell you under NDA that they might be delaying the launch to work on improving the tech an customer satisfaction. Again, good luck reporting on that and proving that you did not base it on info obtained under NDA.
People are taking this too lightly especially when it comes to companies that abused morality repeatedly and are already using the exact same tactics used now to gag people. Just as a hint: the NDA for developers using Nvidia Gameworks.