Intel's new microcode update forbids benchmark comparisons

[Sober2ndThought]

12 hours ago, Brooksie359 said:

My mother is a lawyer and she has talked about how UELA have little to no power. She says that alot of companies have EULAs that have part that would never hold up in court. At the end of the day this would be super illegal and wouldn't even make it to a court case. They would just throw out the case tbh. 

That's not what I learned in law school. I remember my first day they told us EULA are enforceable. 

Now I am not a contract lawyer and have not studied contract law for years, an actual contract lawyer can get into the nitty gritty. Plus most my education was in the common law in Canada, so what I say is mostly true for Canada and not true world wide.

 

The only type of EULAs which might not be enforceable are Shrink Wrap Contracts. In the U.S. the law is split, one court decisions ProCD, Inc. v. Zeidenberg, 86 F. 3d. 1447 (7th Cir. 1996) held that they are enforceable, while another Klocek v. Gateway, Inc 104 F. Supp. 2d. 1332 held they are not. It will depend on which state you live in. That is unless the UCC is updated to resolves the issue once and for all and the state legislatures all adopt the new UCC . 

 

All other EULAs are enforceable. In the U.S. they are called Click-Through License Agreements. EULAs are considered a form of a Standard Form Contract, and the Under the Article 2 of the UCC (in the U.S.) and under the Common Law (commonwealth countries) EULAs are enforceable as such. But because they are Standard Form Contracts, they are subject to several limitation which are not typically found in typical bilateral contracts. 

 

Generally, to be enforceable, a person must enter into the contract with the intent to be bound by the contract. With a typical bilateral contract which is negotiated and hammered out, all aspects of it are enforceable unless a limited number of exceptions apply. The assumption is both parties are equal in power, they probably discussed every clause in the contract, and they agreed to bound by every single term in the contract and agreed to every clause in the contract. So the contract is enforceable. There are a handful of limitations such as mistake (mutual and unilateral), duress or undue influence, unconscionability, misrepresentation or fraud, impossibility or impracticability, and frustration of purpose.

 

Standard Form Contract there is an unequal bargaining power, they are typically a take or leave it deal, they are imposed on us, and there usually is not enough time to understand the implications of each clause of the contract. For these reasons Standard Form Contracts have limited enforceability. 

 

The general rule is that anything in a Standard Form Contract are enforceable on the whole against the party which drafted it.  But on the other party (the party assenting to the EULA), the terms are only enforceable so long as those terms are normally expected to be found in such a contract. Any term that is unusual or particularly onerous, must be pointed out with particularly to be enforceable (i.e. bolded, in red, with the right to sign on the side, etc.) otherwise it will be unenforceable. Tilden Rent-A-Car Co. v. Clendenning (1978), 83 DLR (3d) 400,

 

For example, in your cell phone contract the clause about long distance calling being subject to a higher rate is generally enforceable because as consumers we expect this to be part of the terms of the contract. But a clause stating that you must pay your long-distance bill in pennies at a particular location would not be enforceable because that is considered unusual and onerous clause (pennies are heavy).  So unless it was pointed out to you with particularity and you assented it is not enforceable. 

 

With, EULAs since all we do is click agree and we have no right to negotiate the terms, they are considered Standard Form Contracts and are enforceable as such. In this case, the question will turn on whether the clause about publishing benchmarks is either particularly onerous or an unusual contract terms and whether Intel pointed it out with particularity. 

[Ryujin2003]

Intel backtracked: https://www.theregister.co.uk/2018/08/23/intel_microcode_license/

Quote

Intel has backtracked on the license for its latest microcode update that mitigates security vulnerabilities in its processors – after the previous wording outlawed public benchmarking of the chips.

 

[Kamina]

Is that a challenge, Intel?

[Brooksie359]

6 hours ago, Sober2ndThought said:

That's not what I learned in law school. I remember my first day they told us EULA are enforceable. 

Now I am not a contract lawyer and have not studied contract law for years, an actual contract lawyer can get into the nitty gritty. Plus most my education was in the common law in Canada, so what I say is mostly true for Canada and not true world wide.

 

The only type of EULAs which might not be enforceable are Shrink Wrap Contracts. In the U.S. the law is split, one court decisions ProCD, Inc. v. Zeidenberg, 86 F. 3d. 1447 (7th Cir. 1996) held that they are enforceable, while another Klocek v. Gateway, Inc 104 F. Supp. 2d. 1332 held they are not. It will depend on which state you live in. That is unless the UCC is updated to resolves the issue once and for all and the state legislatures all adopt the new UCC . 

 

All other EULAs are enforceable. In the U.S. they are called Click-Through License Agreements. EULAs are considered a form of a Standard Form Contract, and the Under the Article 2 of the UCC (in the U.S.) and under the Common Law (commonwealth countries) EULAs are enforceable as such. But because they are Standard Form Contracts, they are subject to several limitation which are not typically found in typical bilateral contracts. 

 

Generally, to be enforceable, a person must enter into the contract with the intent to be bound by the contract. With a typical bilateral contract which is negotiated and hammered out, all aspects of it are enforceable unless a limited number of exceptions apply. The assumption is both parties are equal in power, they probably discussed every clause in the contract, and they agreed to bound by every single term in the contract and agreed to every clause in the contract. So the contract is enforceable. There are a handful of limitations such as mistake (mutual and unilateral), duress or undue influence, unconscionability, misrepresentation or fraud, impossibility or impracticability, and frustration of purpose.

 

Standard Form Contract there is an unequal bargaining power, they are typically a take or leave it deal, they are imposed on us, and there usually is not enough time to understand the implications of each clause of the contract. For these reasons Standard Form Contracts have limited enforceability. 

 

The general rule is that anything in a Standard Form Contract are enforceable on the whole against the party which drafted it.  But on the other party (the party assenting to the EULA), the terms are only enforceable so long as those terms are normally expected to be found in such a contract. Any term that is unusual or particularly onerous, must be pointed out with particularly to be enforceable (i.e. bolded, in red, with the right to sign on the side, etc.) otherwise it will be unenforceable. Tilden Rent-A-Car Co. v. Clendenning (1978), 83 DLR (3d) 400,

 

For example, in your cell phone contract the clause about long distance calling being subject to a higher rate is generally enforceable because as consumers we expect this to be part of the terms of the contract. But a clause stating that you must pay your long-distance bill in pennies at a particular location would not be enforceable because that is considered unusual and onerous clause (pennies are heavy).  So unless it was pointed out to you with particularity and you assented it is not enforceable. 

 

With, EULAs since all we do is click agree and we have no right to negotiate the terms, they are considered Standard Form Contracts and are enforceable as such. In this case, the question will turn on whether the clause about publishing benchmarks is either particularly onerous or an unusual contract terms and whether Intel pointed it out with particularity. 

My mother is a contract lawyer and she reviews contracts for a living. She was saying they have little to no power because they have such stringent limitations on them. Yeah they can get you for obvious stuff like misuse of education grade software for commercial use but not for doing benchmarks. People think they are the same as legally binding documents when they aren't. If they have anything out if the ordinary they are not enforceable. If they conflict with any laws such as consumer protection laws they aren't enforceable. There are so many ways for a EULA to be considered unenforceable that they have little power. This case would be cut and dry. Intel would lose in a second because of consumer protection laws. 

[Brooksie359]

6 hours ago, Sober2ndThought said:

That's not what I learned in law school. I remember my first day they told us EULA are enforceable. 

Now I am not a contract lawyer and have not studied contract law for years, an actual contract lawyer can get into the nitty gritty. Plus most my education was in the common law in Canada, so what I say is mostly true for Canada and not true world wide.

 

The only type of EULAs which might not be enforceable are Shrink Wrap Contracts. In the U.S. the law is split, one court decisions ProCD, Inc. v. Zeidenberg, 86 F. 3d. 1447 (7th Cir. 1996) held that they are enforceable, while another Klocek v. Gateway, Inc 104 F. Supp. 2d. 1332 held they are not. It will depend on which state you live in. That is unless the UCC is updated to resolves the issue once and for all and the state legislatures all adopt the new UCC . 

 

All other EULAs are enforceable. In the U.S. they are called Click-Through License Agreements. EULAs are considered a form of a Standard Form Contract, and the Under the Article 2 of the UCC (in the U.S.) and under the Common Law (commonwealth countries) EULAs are enforceable as such. But because they are Standard Form Contracts, they are subject to several limitation which are not typically found in typical bilateral contracts. 

 

Generally, to be enforceable, a person must enter into the contract with the intent to be bound by the contract. With a typical bilateral contract which is negotiated and hammered out, all aspects of it are enforceable unless a limited number of exceptions apply. The assumption is both parties are equal in power, they probably discussed every clause in the contract, and they agreed to bound by every single term in the contract and agreed to every clause in the contract. So the contract is enforceable. There are a handful of limitations such as mistake (mutual and unilateral), duress or undue influence, unconscionability, misrepresentation or fraud, impossibility or impracticability, and frustration of purpose.

 

Standard Form Contract there is an unequal bargaining power, they are typically a take or leave it deal, they are imposed on us, and there usually is not enough time to understand the implications of each clause of the contract. For these reasons Standard Form Contracts have limited enforceability. 

 

The general rule is that anything in a Standard Form Contract are enforceable on the whole against the party which drafted it.  But on the other party (the party assenting to the EULA), the terms are only enforceable so long as those terms are normally expected to be found in such a contract. Any term that is unusual or particularly onerous, must be pointed out with particularly to be enforceable (i.e. bolded, in red, with the right to sign on the side, etc.) otherwise it will be unenforceable. Tilden Rent-A-Car Co. v. Clendenning (1978), 83 DLR (3d) 400,

 

For example, in your cell phone contract the clause about long distance calling being subject to a higher rate is generally enforceable because as consumers we expect this to be part of the terms of the contract. But a clause stating that you must pay your long-distance bill in pennies at a particular location would not be enforceable because that is considered unusual and onerous clause (pennies are heavy).  So unless it was pointed out to you with particularity and you assented it is not enforceable. 

 

With, EULAs since all we do is click agree and we have no right to negotiate the terms, they are considered Standard Form Contracts and are enforceable as such. In this case, the question will turn on whether the clause about publishing benchmarks is either particularly onerous or an unusual contract terms and whether Intel pointed it out with particularity. 

Also for context she was drafting a EULA at the time and was talking about how the limitations on what they could put in there that would actually hold up in court is pretty small. 

[James Evens]

@exetras you should add also the NDA and the Intel statement that they will update the EULA. It just looks like a human error and this is just the eula from the preview versions.

[Jurrunio]

Oh dear. My 2600k used to hit 820cb in Cinebench R15 back in 2013 at 4.7GHz, very slowly dropping clocks because CPU degrades over time (nearly always turned on and doing heavy work, so that's expected), until today it sits at 4.5GHz. After the past Spectre and Meltdown patches to the OS (no BIOS update fix released by mobo manufacturer), it's only doing 770cb now. Optimization going backwards here just because of hardware bugs.

20 hours ago, SC2Mitch said:

How badly did the microcode update cripple the CPUs if they're this terrified to allow benchmarks? 

I'm curious, but I dont want to slow down my system for testing, it's slow enough for Assassin's Creed Origins in its current state.

15 hours ago, Stefan Payne said:

If they continue this way, how long until a big class action lawsuit hits them?!

Can't be far...

 

And it would be interesting if Intel gets ordered to replace all the defective processors...

I'd like to receive something modern as well

[Dabombinable]

10 hours ago, aezakmi said:

CPU-Z

my old unpatched 8350k topped 470 points on CPU-Z sc bench, unpatched F3 BIOS (factory release)

a friend now has that 8350k and a similar board but with F6 BIOS version, his benchmark is hovering around 400 and 408

the CPU needs to run at 4.3GHz in order to hit 470 points

 

both tests done on freshly installed windows 7, with 8GB @2933 MHz single channel memory and using the iGPU

8350K score that low multi threaded? Unpatched my i5 4440 does 473CB in R15.

[Eroda]

21 hours ago, SC2Mitch said:

gl taking chinese people to CN courts and actually winning!!

that was literally the point, adding something like this is pointless because it wont stop anything. especially from chinese  sites intel has no chance of enforcing anything

[Col. Sandurz]

On 23/8/2018 at 3:45 PM, 2Buck said:

it's just another bandwagon of hate, another lynch mob.

Witch hunt!

[Ryujin2003]

9 hours ago, Col. Sandurz said:

Witch hunt!

Quit your yapping and get on the wagon!

 

[mr moose]

Any excuse to jump on the hate wagon, lets not think about this for a sec just in case there is a rational explanation.

[Fetzie]

On 24/08/2018 at 1:14 AM, Sober2ndThought said:

That's not what I learned in law school. I remember my first day they told us EULA are enforceable. 

With, EULAs since all we do is click agree and we have no right to negotiate the terms, they are considered Standard Form Contracts and are enforceable as such. In this case, the question will turn on whether the clause about publishing benchmarks is either particularly onerous or an unusual contract terms and whether Intel pointed it out with particularity. 

Another limitation of EULAs is that clauses are not allowed to restrict statutory rights. For example, if a EULA says I agree to not sue the company (instead going to an arbitrator), then that clause is not enforceable in Germany (that's why the "Dispute resolution" section of many EULAs and Terms of Use Agreements (for example Steam) is different for residents of the USA and Canada, and those of EU member states).

 

So you would have to argue that the clause in question contradicts a statutory or constitutional right (the most obvious being the first amendment in the USA). Probably not too hard to convince a court of that (assuming that the court doesn't throw Intel's case out to start with).

[mark_cameron]

On 24/08/2018 at 12:14 AM, Sober2ndThought said:

That's not what I learned in law school. I remember my first day they told us EULA are enforceable. 

Now I am not a contract lawyer and have not studied contract law for years, an actual contract lawyer can get into the nitty gritty. Plus most my education was in the common law in Canada, so what I say is mostly true for Canada and not true world wide.

 

The only type of EULAs which might not be enforceable are Shrink Wrap Contracts. In the U.S. the law is split, one court decisions ProCD, Inc. v. Zeidenberg, 86 F. 3d. 1447 (7th Cir. 1996) held that they are enforceable, while another Klocek v. Gateway, Inc 104 F. Supp. 2d. 1332 held they are not. It will depend on which state you live in. That is unless the UCC is updated to resolves the issue once and for all and the state legislatures all adopt the new UCC . 

 

All other EULAs are enforceable. In the U.S. they are called Click-Through License Agreements. EULAs are considered a form of a Standard Form Contract, and the Under the Article 2 of the UCC (in the U.S.) and under the Common Law (commonwealth countries) EULAs are enforceable as such. But because they are Standard Form Contracts, they are subject to several limitation which are not typically found in typical bilateral contracts. 

 

Generally, to be enforceable, a person must enter into the contract with the intent to be bound by the contract. With a typical bilateral contract which is negotiated and hammered out, all aspects of it are enforceable unless a limited number of exceptions apply. The assumption is both parties are equal in power, they probably discussed every clause in the contract, and they agreed to bound by every single term in the contract and agreed to every clause in the contract. So the contract is enforceable. There are a handful of limitations such as mistake (mutual and unilateral), duress or undue influence, unconscionability, misrepresentation or fraud, impossibility or impracticability, and frustration of purpose.

 

Standard Form Contract there is an unequal bargaining power, they are typically a take or leave it deal, they are imposed on us, and there usually is not enough time to understand the implications of each clause of the contract. For these reasons Standard Form Contracts have limited enforceability. 

 

The general rule is that anything in a Standard Form Contract are enforceable on the whole against the party which drafted it.  But on the other party (the party assenting to the EULA), the terms are only enforceable so long as those terms are normally expected to be found in such a contract. Any term that is unusual or particularly onerous, must be pointed out with particularly to be enforceable (i.e. bolded, in red, with the right to sign on the side, etc.) otherwise it will be unenforceable. Tilden Rent-A-Car Co. v. Clendenning (1978), 83 DLR (3d) 400,

 

For example, in your cell phone contract the clause about long distance calling being subject to a higher rate is generally enforceable because as consumers we expect this to be part of the terms of the contract. But a clause stating that you must pay your long-distance bill in pennies at a particular location would not be enforceable because that is considered unusual and onerous clause (pennies are heavy).  So unless it was pointed out to you with particularity and you assented it is not enforceable. 

 

With, EULAs since all we do is click agree and we have no right to negotiate the terms, they are considered Standard Form Contracts and are enforceable as such. In this case, the question will turn on whether the clause about publishing benchmarks is either particularly onerous or an unusual contract terms and whether Intel pointed it out with particularity. 

It's a principle of law that you cannot enforce unfair contracts.

 

Certainly in Europe consumers have fundamental rights. One of which is protection from being misled prior to a purchase. It's illegal for companies to mislead consumers. It's termed 'unfair trading'.

 

It's also illegal for a company to mislead consumers as to their legal rights. This is directly contradictory to EU consumer law.

 

If no one is able to independently compare the performance of a product, consumers cannot make informed choice and therefore are more easily misled. Thus the contract is unfair.

 

Good luck to Intel, AMD, Microsoft or anyone else trying to enforce an unenforceable contract.

[vorticalbox]

On 25/08/2018 at 2:02 PM, mr moose said:

Any excuse to jump on the hate wagon, lets not think about this for a sec just in case there is a rational explanation.

Can you think of any reason other than damage control? 

[mark_cameron]

On 24/08/2018 at 6:29 AM, Brooksie359 said:

My mother is a contract lawyer and she reviews contracts for a living. She was saying they have little to no power because they have such stringent limitations on them. Yeah they can get you for obvious stuff like misuse of education grade software for commercial use but not for doing benchmarks. People think they are the same as legally binding documents when they aren't. If they have anything out if the ordinary they are not enforceable. If they conflict with any laws such as consumer protection laws they aren't enforceable. There are so many ways for a EULA to be considered unenforceable that they have little power. This case would be cut and dry. Intel would lose in a second because of consumer protection laws. 

You're correct see my previous post.

 

In relevant European laws it actually says that if there is any doubt, the decision comes down in favour of the consumer.

 

It's an impossible clause that would make it impossible for a consumer to compare INTEL to AMD.

 

Such a clause could invariably in itself trigger a competition law investigation also. As it's net effect would undermine competition.

 

It's beyond ridiculous.

[mr moose]

1 hour ago, vorticalbox said:

Can you think of any reason other than damage control? 

 

Remnant of EULA for pre release code sent out to hardware vendors/clients for verification.

Something they wanted to put in for everything permanently because they had a brain fart and thought it would good for the company

First day on the job for a lawyer and he mis-read the requirements?

 

At any rate, I'd hardly call their response damage control.   It's about par for company with an unpopular whatever.