Editorial Revised NVIDIA Reviewers NDA Raises Eyebrows: Our Thoughts

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They really can't hide that kind of flaw. If tests shows that there's slower part of memory, it's easy to prove with showing test data that the flaw exists and you don't have to use nvidia given "Confidential information" as source. It's even actually said on that nda in chapter 3. Recipient shall not be liable for disclosure of Confidential Information that... c) is or was independently developed by employees of recipients.

Do you remember initial reviews showing anything? The issue was reported months after launch, and Nvidia had sold a shi*ton of cards by then.

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 NDA only hold the signatory individual as responsible. Just read it... and the only person who would sign an NDA is the person getting the hardware/information. The rest of our organization is not affected as long as there is no discussion between us about it.

Even if it is covered by NDA, there are ways around that. NDAs of this sort in this industry really do nothing but provide necessary protections for the stock market. They have a very specific purpose. I'm also not in the US, so not subject to US law directly. Of course, I mean myself, not TPU.

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.

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.

 

[ajc9988]

They really can't hide that kind of flaw. If tests shows that there's slower part of memory, it's easy to prove with showing test data that the flaw exists and you don't have to use nvidia given "Confidential information" as source. It's even actually said on that nda in chapter 3. Recipient shall not be liable for disclosure of Confidential Information that... c) is or was independently developed by employees of recipients.

So, that may be true, but without a so-called "Chinese Firewall" between the employees given the information by Nvidia and employees that discovered the flaw, you can run into issues. Specifically, if the employee was given information on the design and the flaw, but told they cannot disclose it, by knowing about the flaw, they cannot independently test for it because they had knowledge of its existence due to the Nvidia disclosure. If they ask for an employee to look for the flaw, generally, but not specifically, it still doesn't work because they already knew of its existence, so the entire direction to search for it came based on the underlying disclosure. This means to properly comply, there must be some employees that test products that have no connection or direction by anyone privy to the disclosures and no communication on the topic of products between those with and without the knowledge from the company. Law firms do this all the time. I don't think this setup is normal for tech journalism, though. Run this by your attorney in your jurisdiction, potentially.

 

[Casecutter]

I say this... If a site/reviewer signs such an NDA please just indicate that you could or might be termed as a "Product Influencer" as being subjugated to a long-term Non-Disclosure Agreement with the company, that's least an ethical thing to do.

 

[cadaveca]

I say this... If a site/reviewer signs such an NDA please just indicate that you could or might be termed as a "Product Influencer" as being subjugated to a long-term Non-Disclosure Agreement with the company, that's least an ethical thing to do.

Any "launch day" review is subject to NDA of some sort.

 

[W1zzard]

@btarunr: Imagine we are in September 2014 when GTX 970 was launched. You find out from a leaker that Nvidia knows about the 3.5GB RAM issue and you plan to publish an article. But Nvidia preempts your move by officially disclosing this info under NDA (perhaps attached to a sob story of how they're working to fix it to make it look less "covering tracks" and more "working for you").

Are you still allowed to publish this?

Because if not I can see why people are worried. You could become Nvidia's secret keeper for 5 years. And by the time the NDA expires people don't really care much about old news, do they? Not the same impact, definitely not on sales.

Nvidia didn't provide that information, so it's fine to post. And yes we would post it, probably talk to Nvidia before to get their thoughts and some possible explanation.

 

[mat9v]

Nvidia didn't provide that information, so it's fine to post. And yes we would post it, probably talk to Nvidia before to get their thoughts and some possible explanation.

What would happen if in such a case, Nvidia mentioned, or even openly stated in response to your query, that due to the memory configuration it would work slower then advertised and they are working on a software/firmware workaround? Would such an information about the existing problem be under NDA and would you be obligated to keep it secret?

 

[looniam]

this dog (NDA) is all bark and no bite.

it's funny but sad to think some folks' interpretation of it would be enforceable by law. but then again people think all EULAs are . . . .

 

[R-T-B]

I used the "popular" definition as "a person who writes for newspapers, magazines, or news websites or prepares news to be broadcast".

That was the definition I was going with as well.

I'm not taking anything away from certified journalists mind, I was on the track to be one. As you may have guessed by my lack of credentials, it isn't easy nor something to scoff at.

 

[close]

Any "launch day" review is subject to NDA of some sort.

But aren't run of the mill NDAs just preventing you from publishing the review for the part you received before the launch of said part? Which is fair, you get a sample in advance so you can prepare the review, not so you can ruin the launch. But it feels like this NDA goes well beyond that. It leaves the distinct impression that it's aimed at blocking a lot more than reviews before that actual launch.

 

[cadaveca]

But aren't run of the mill NDAs just preventing you from publishing the review for the part you received before the launch of said part? Which is fair, you get a sample in advance so you can prepare the review, not so you can ruin the launch. But it feels like this NDA goes well beyond that is leaves the distinct impression that it's aimed at blocking a lot more than reviews before tha actual launch.

Nothing in this NDA is non-standard. That's the thing. I think someone realized that if someone unfamiliar read this stuff, they'd get all uppity about it... and it seems they were right.

 

[Xzibit]

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.

Think HardOCP clarified their stance on chocolate

Fair enough You are both saying opposite things. And I'm not sure why. I trust you both actually. I don't understand the confusion. Tech power up is agreeing with my friend also. There could be more to this story.

As I said above, this is no big deal to "reviewers." They are NOT journalists and do not see it through that lens so I can see them thinking this is no big deal. It is not a hard thing to understand. They want their free cards to be able to get launch day clicks, and will sign whatever they need to in order to make that happen. It is that simple.

I'll stick to 3 Musketeers

I say this... If a site/reviewer signs such an NDA please just indicate that you could or might be termed as a "Product Influencer" as being subjugated to a long-term Non-Disclosure Agreement with the company, that's least an ethical thing to do.

It would also be dependent on how its signed. As an individual or as a company.

The majority of techsite (US based) aren't in compliance with FTC guidance on disclosures. Even if they been in business for several years. If they haven't cared about following certain rules for their existence, don't expect them to follow them now.

The most recent well known incident was involving PCPerspective.

 

[W1zzard]

What would happen if in such a case, Nvidia mentioned, or even openly stated in response to your query, that due to the memory configuration it would work slower then advertised and they are working on a software/firmware workaround? Would such an information about the existing problem be under NDA and would you be obligated to keep it secret?

"Work slower than advertised", that part I knew before contacting NVIDIA. So I could still run the story, with teh same information I had before contacting NVIDIA, so nothing lost, possibly something gained because NVIDIA might allow me to publish they additional information they provided.

If they openly state or their information is released by a 3rd party, it wouldn't fall under the NDA

 

[HTC]

Nothing in this NDA is non-standard. That's the thing. I think someone realized that if someone unfamiliar read this stuff, they'd get all uppity about it... and it seems they were right.

Would you not agree that not referring to a specific item / event for review as well as the length on the NDA are both non-standard?

I've never been under an NDA of any kind. That said, i'd expect an NDA to cover a product's launch (including it's launch date) or an event where one receives certain information to be disclosed only after (during?) the event in question.

This specific NDA is quite vague on what it encompasses and that seems to be the issue here, i think.

A question for @W1zzard : imagine the whole GPP thing came AFTER TPU signed this NDA. Would you be denied publishing some of the stuff that came to light by nVidia, as in, would it fall under this NDA?

 

[W1zzard]

Would you not agree that not referring to a specific item / event for review as well as the length on the NDA are both non-standard?

Not at all, for press/reviewers maybe. I'm also a software developer and have NDAs with many hardware companies that are exactly that: non-event/non-product specific, extremely long lived/automatic renewal, etc.

imagine the whole GPP thing came AFTER TPU signed this NDA. Would you be denied publishing some of the stuff that came to light by nVidia, as in, it would fall under this NDA?

I don't see why it would fall under this (or any) NDA, unless NVIDIA provided the GPP contract to me in some sort of early briefing AND no third party ever leaks it.

 

[HTC]

Not at all, for press/reviewers maybe. I'm also a software developer and have NDAs with many hardware companies that are exactly that: non-event/non-product specific, extremely long lived/automatic renewal, etc.


I don't see why it would fall under any NDA, unless NVIDIA provided the GPP contract to me in some sort of early briefing AND no third party ever leaks it.

Thanks for the reply.

Automatic renewal, for an NDA? Had never heard of such cases.

 

[close]

Nothing in this NDA is non-standard. That's the thing. I think someone realized that if someone unfamiliar read this stuff, they'd get all uppity about it... and it seems they were right.

Then again the NDA signatory is prevented from discussing the terms of the actual NDA . As someone who's signed plenty of NDAs including with companies like Intel, personally I can say that no other NDA that I have seen until now covers every single piece of information as "under NDA". In 99% of the cases they named the actual technologies that are under NDA, and the considerations for each. This is the first blanket ban on potentially everything. Maybe they are a common occurrence in some fields but it doesn't put the mind of the reader at ease.

And again, I have seen the NDA that game developers were asked to sign in order to use GameWorks and Nvidia used and abused it to the fullest extent. To the point where everyone was aware that what's happening is wrong but the financial incentives and legal deterrent of breaking it made it a moot point. Expect to hear more around 2020 if anyone still cares. And if the people who could report on it aren't under NDA .

But in my opinion this is newsworthy. Readers should know that you could be sitting on a pile of relevant information and not be able to act on it regardless of who prevents you from doing it.

And to the example above, if during a presentation for people under NDA Nvidia would tell you all about the GPP program you would be forced to keep quiet until someone leaks it to public domain. While an NDA doesn't prevent leaks it does raise the bar for one. Just enough to save some sales maybe.

 

[cadaveca]

Thanks for the reply.

Automatic renewal, for an NDA? Had never heard of such cases.

Oh, the things I cannot mention...

Then again the NDA signatory is prevented from discussing the terms of the actual NDA . As someone who's signed plenty of NDAs including with companies like Intel, personally I can say that no other NDA that I have seen until now covers every single piece of information as "under NDA". In 99% of the cases they named the actual technologies that are under NDA, and the considerations for each. This is the first blanket ban on potentially everything.

And again, I have seen the NDA that game developers were asked to sign in order to use GameWorks and Nvidia used and abused it to the fullest extent. To the point where everyone was aware that what's happening is wrong but the financial incentives and legal deterrent of breaking it made it a moot point. Expect to hear more around 2020 if anyone still cares. And if the people who could report on it aren't under NDA .

But in my opinion this is newsworthy. Readers should know that you could be sitting on a pile of relevant information and not be able to act on it regardless of who prevents you from doing it.

I guess you haven't signed as many as I have at the stages I have. Most product development NDAs (both inside and out of the tech industry) are almost copy-pasta of this one, with company names changed.

I myself make people sign such an NDA all the time. The terms are pretty much EXACTLY the same.

 

[W1zzard]

Automatic renewal, for an NDA? Had never heard of such cases.

Some courts don't allow infinite duration NDAs, so that's how lawyers get around that

 

[bug]

Some courts don't allow infinite duration NDAs, so that's how lawyers get around that

The alternative being having to sign an NDA for each and every product you want to talk about with the company that makes it. Not the most workable solution.

 

[5150Joker]

Kyle over at HardOCP is already suggesting everyone including TPU are shills. Personally I think he’s on an anti-nvidia crusade because he’s not getting preferential access anymore (nor should he) and now is resorting to banning long standing members on his forums that disagree with him. Sad to see the old man sink his website like that in a short amount of time.

 

[btarunr]

@btarunr: Imagine we are in September 2014 when GTX 970 was launched. You find out from a leaker that Nvidia knows about the 3.5GB RAM issue and you plan to publish an article. But Nvidia preempts your move by officially disclosing this info under NDA (perhaps attached to a sob story of how they're working to fix it to make it look less "covering tracks" and more "working for you").

Are you still allowed to publish this?

Yes, we won't be breaching NDA because the publicly reproducible screw-up won't be mentioned anywhere in NVIDIA's documentation (and hence won't be NDA-protected information).

[edit] W1zzard answered this.

 

[cadaveca]

Kyle over at HardOCP is already suggesting everyone including TPU are shills. Personally I think he’s on an anti-nvidia crusade because he’s not getting preferential access anymore (nor should he) and now is resorting to banning long standing members on his forums that disagree with him. Sad to see the old man sink his website like that in a short amount of time.

He's more than welcome too, but he's not saving any face by taking this position.


Here's the deal: We are hardware reviewers. That means we get the hardware, we test, and then we report those findings. There is nothing about an NDA that can hide performance figures. Anything else NVidia, well, that's not part of a hardware review, so why anyone would think that we or anyone would cover that... is beyond me.

Anything else relating to NVidia is "news", and is posted by completely different people. NDA does not apply to them, since the news posters don't do hardware reviews.

If that somehow makes any of us a shill... I guess the definition of what a shill is needs to be re-written.

 

[Rockarola]

I have been under a few NDAs and half of them aren't enforceable within the EU...hell, quite a few aren't even enforceable outside of the country/US state it's written in. Consumer protection trumps NDAs in the EU legal process, as far as I know.

Speaking of AFAIK, can we please have a proper lawyer in this thread? I am (very) inclined towards trusting Wizz, Dave, The Frog, etc, but I'm pretty sure I haven't seen a post by a proper business lawyer in here.
(could be a good follow-up to this editorial)

(edited for clarity and atrocious punctuation)

 

[rainzor]

Seems like Gamersnexus got a lawyer to clarify some things. Hopefully i'm allowed to post their content here?

 

[cadaveca]

Hopefully i'm allowed to post their content here?

We will never prevent someone from doing so from any review site... there's no reason for us to. I like to think that we are all working together, anyway, even when we don't agree on things. Posting something on-topic is far different than making a thread just to give another site some traffic.

I would, however, like to know the name of the law firm this lawyer works for, because anyone can "pretend" to be a lawyer.