[ghastmaster]

> Palo Alto Networks appears oblivious to the fact that the New York Attorney General’s office sued and won an injunction against McAfee from enforcing its contractual restrictions against publishing reviews or comparisons of its products without its consent more than 17 years ago. In enacting the Consumer Review Fairness Act, Congress has also prohibited businesses from including contract terms that prohibit consumers from reviewing products or services they purchase.

New York only matters if either party has standing in that jurisdiction. Palo Alto Networks(California) and Orca Security(Israel) would not, however there could be made a case that the video in question resides on servers(youtube) in New York.

The argument for the application of 15 U.S. Code § 45b appears to only apply to "form contracts".

> means a contract with standardized terms— (i) used by a person in the course of selling or leasing the person’s goods or services; and (ii) imposed on an individual without a meaningful opportunity for such individual to negotiate the standardized terms.

It appears as though the EULA is a form contract and Orca indeed falls under the protections of the Consumer Reviews Fairness Act.

EULA: https://www.paloaltonetworks.com/content/dam/pan/en_US/asset...

[otterley]

Maybe, maybe not. See my analysis elsewhere about the importance of the word "individual" as opposed to "person" in the language of CFRA.

[ghastmaster]

Good catch! It looks like the New York case does indeed have some relevance as well considering the code explicitly allows state's attorneys general to file suit using this statute. Because it did not proceed to the higher courts(that I know of) it is not of great significance, but still noteworthy.

[otterley]

I don't think People v. Network Associates (the McAfee case, 758 N.Y.S.2d 466 (2003)) is on point. That case involved a number of complex facts, like a difference between the license agreement (which did not contain the restrictive terms and contained an "entire agreement" clause) and the warning printed on the media; and whether consumers could be misled by the warning on the media.

The court did not hold that restrictions in license agreements were void due to public policy. Rather, it held that Network Associates could not bind customers to the language on the disks because the language deceived the customer.