Nvidia EULA limits GeForce Data Center Usage *fork*

Discussion in 'Graphics and Semiconductor Industry' started by Grall, Dec 27, 2017.

  1. CSI PC

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    So how is it different with shareware that must be purchased by business entity not consumers or software that is more expensive with additional functionality for business entities compared to consumers?
    In both examples they are also sold and controlled by said software companies and are banning said use of products outside of their purpose; you cannot use the shareware version without buying and agreeing to the EULA, and if a consumer changes the use to that of commercial use they also need to buy a license.

    So how is shareware or other software that has different pricing/functionality between consumer retail and commercial/business entities work in Germany?
    Has Germany come down on number of cores per license agreements that can be very different from consumer to commercial business and workstations/servers?
    It has similar context because Nvidia narrative is coming from that position, they are using the retail consumer software argument limiting commercial use unless engaged with Nvidia - back to shareware and other software license type arguments.

    Well lets see if Germany kicks up a fuss next week/month, not expecting it tbh because like I keep saying Sakura bought these in a commercial business entity way and not consumer that has other considerations.
    I just feel some are approaching this from a retail consumer perspective and this is anything but that due to the way multiple Titans must also be purchased compared to retail-consumer.
    In essence Sakura thought outside of the box (that is being nice to them) and bypassed the correct procedures or at worst actually mislead the Nvidia partner, which then has meant Nvidia has now responded to shut down such a thing happening in future.
     
    #61 CSI PC, Jan 3, 2018
    Last edited: Jan 3, 2018
  2. Silent_Buddha

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    The distinction is between hardware and software.

    Up to the moment of sale a manufacturer can put restrictions on who the hardware is sold to. After the moment of sale, the manufacturer can do practically nothing to restrict how the product is used. Some examples,
    • Vehicles manufacturer restricts sales of X model of vehicle to Y country. However, they cannot legally prevent the vehicle, once purchased, from being use in another country. The same can be applied to how the vehicle is used.
    • Consoles manufacturer restricts sales of X console to Y list of countries. However, they cannot legally prevent the use of said console in other countries. The same can be said for how those consoles are used.
    • Television manufacturer restricts sales of X television to Y country...you get the idea. Said Television maker may also make specially designed displays for commercial kiosk use that costs significantly more than their consumer displays. However, they cannot legally prevent a company from buying their cheapest Television for use in a commercial kiosk.
    The one thing they can do in the above cases is refuse to service a vehicle that is used in a country other than the one it is sold in. But they can't legally prevent the vehicle from being used in any way the purchaser feels like using it.

    Software is a grey area and software developers have with varied success attempted to limit how their software is used after the point of sale. Some examples.
    • Software makers limit what countries software can be sold in. They have a difficult time actually restricting the use of said software in other countries.
    • Software makers limit what environments their software can be used in. Example, is software that is free for personal use, but must be purchased for commercial use.
      • This has had limited success based on what country the software is used in, and to what extent the software developer is prepared to attempt to defend those limitations.
      • Often, small businesses will use the personal edition rather than pay for the commercial edition. It is rare that a software developer will attempt to pursue legal action other than sending a cease and desist because the courts are unlikely to side with the software developer.
        • As such, developers will often only include X features in a paid version of the software and provide a more limited set of features in the free personal edition and/or only offer live support to paid licensees. Anti-virus suites, OS suites, etc. are all great examples of this.
    So, the point some are trying to make is.

    Once an NVidia graphics card is sold, they cannot legally prevent a person or company from using the hardware however they wish.

    What they may be able to do, however, is attempt to limit who can use their software (drivers). This is where the grey area comes in. If the software can only be used with X hardware, then there is no problem (for example, professional drivers on Quadro). Limiting the software based purely on how it is used is much more difficult to legally defend.

    To use a spurious example, how successful would Microsoft/Sony/Activsion/EA/etc. be in attempting to legally prevent their games from being used in a commercial setting? Not very. Back in the early days, some companies attempted to prevent their software from being rented (a commercial use). The courts struck that down quickly. Some developers attempted to prevent games being used in commercial gaming centers, that also failed. Instead developers were limited to requiring a license for each machine the software was installed on, but not how many users used it.

    It will be interesting to see if any companies challenge this attempt by NVidia to prevent non-professional cards from being used in a commercial setting and see how the courts rule on it. Or, if companies will just decide that the legal costs involved with challenging it isn't worth it even if they think they have a good chance of winning.

    Regards,
    SB
     
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  3. Shifty Geezer

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    That's software licensing. You are free to sell or give away your creation to whomever you want. A software creator can choose to sell their software to some people and give it away to others. The same could be said of GPUs, or any other physical product, that nVidia could give them free to consumers and charge data centres. Once possessed, though, the rights for the hardware are entirely yours.

    I don't know. I just know that in the past they've completely dismissed the EULA as a concept, though that may have been shrink-wrapped EULAs. I presume that means an EULA on a driver that comes with a GPU may be unenforceable? But a downloaded driver may not?

    Regardless, this is all an issue of licensing and EULAs, and not a matter of undermining consumer rights to not be free to do with their purchases whatever they want.
     
  4. CarstenS

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    One example how these two differ is that one is a digital good, the other one at least part physical. And how the limitations are made known to consumers. Software, you usually download and agree to pagelong EULAs before downloading, then once more during install. Yes, most people do not read those, but once you've done your mandatory scroll towards the end and click „ok“, you're supposed to know the legally binding contract you have just forged by mutual agreement.

    When I (hypothetically) bought a Titan in the past, I got to see that EULA stuff especially in the drivers only after the physical part of the product had been paid for, shipped, delivered and installed. Only then I would possibly informed about my purchase not being „licensed“ for my inteded use.

    The current ordering process for Titan V on nvidia.de only says „Du kannst maximal 2 bestellen“ (You can order a maximum of 2) - not that it's illegal or even unwanted if I placed a separate order 2 and another 2 and another 2 and another 2 and another 2 and another 2 and so on. In the informations given beforehand of a purchase, right now, there's no limitation of usage to be seen: https://store.nvidia.com/store/defa...e/eCommerceProvider.Digital+River+Ireland+Ltd. (CTRL+F: data center or german datenzentrum yield 0 results).

    My personal thoughts on this are, that drivers are such an integral part of a(ny) given hardware, that you cannot legally limit them in this way. It's a totally different matter for Deep Learning frameworks or math libraries Nvidia is also providing - although under special developers registration.
     
  5. CSI PC

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    And that is my point, most are approaching this just as an EULA and also as a consumer rather than a Business Entity that also bypassed the 2 per customer rule unless they do a specific purchase from Nvidia/partner that complies to a project and that usually involves contracts - yeah I appreciate one can say over time use changes but it does not get around the fact it looks like Sakura mislead a commercial sales channel partner or Nvidia.
    There are two aspects involved here with the Titan; one it is a consumer product with consumer software (fits my point regarding other software that also differentiates between consumer retail and commercial business entity) and 2nd is that this was not purchased as a consumer nor through consumer channels but commercial business channels.
    You still have a contract of sale when it involves business entity that is different to consumers, especially for larger projects.

    Try to order multiple times (say 10 times and that is still only 20 Titans) to your home address for Titan and let me know how you get on :)
    You have more chance/opportunity to buy Tesla V100 and P100 than you do Titans from a higher partner retailer that sales to consumers and businesses online.
    There is a reason the Titans are only available from nvidia and certain partners.

    I can give another example of software showing consumers/business do not have an automatic right; look at what Intel does with their CPU related software-functionality and solutions that integrate into them.
    The same goes with as I said earlier storage products and the firmware they use, or nearly any other tech product when considering both consumer and commercial.
     
    #65 CSI PC, Jan 4, 2018
    Last edited: Jan 4, 2018
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  6. CSI PC

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    Not the same type of example.
    Better to look at how Intel can restrict software/fimware/functionality between commercial and consumer, regional locking is very different and is not a differentiation between consumer and commercial/business entity related products.
    To my perspective anyway *shrug*.
     
    #66 CSI PC, Jan 4, 2018
    Last edited: Jan 4, 2018
  7. CarstenS

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    The Nvidia webshop does apparently not discriminate between consumers and business users. What Sakura may or may not have bargained for with Nvidia, I don't know and therefore not debate.
     
  8. CSI PC

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    Because you cannot order a ridiculous amount of Titans from that page while also mentioning 2 per customer nor can you purchase them from an online retailer; you can order Tesla V100 and P100 easier than you can the Titans.
    However if you drill down lookiung at products at bottom of page it does show the Titan Xp in context of games and DL while all other products such as Tesla/Quadro mention/link to professional and datacenter; I guess one could argue from a position of ignorance (not meaning you but someone looking to bypass Tesla/Quadro) and not checking any other information or pages from the site.
    Also from that same position of ignorance (again just to say not being insulting and directed at those looking to bypass correct channel) is the 2 per customer and someone not bothering to clarify does 2 per customer in total; I think they are in a weak position otherwise Nvidia would allow them to order more than 2 online and possibly pushed further back in queue, and like I said it is easier to order Tesla V100 and P100 than it is Titans.

    And really, how many commercial tech companies building servers or large scale projects do not know the differentiation Nvidia has put on their model segments....
    As Pharma linked earlier, it looks like Sakura engaged with Nvidia/channel partner in context of Blockchain and all of a sudden we have a totally different commercial use; this comes back to business entity and sales agreements/contracts.
    A grey area what they did but combined with the distinction between Geforce drivers and professional drivers I cannot see how anyone trying this in future can challenge what Nvidia has done.
    In essence one will need to speak to Nvidia if wanting to use Geforce drivers for datacenters and similar commercial business entity use.
     
    #68 CSI PC, Jan 4, 2018
    Last edited: Jan 4, 2018
  9. Shifty Geezer

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    In law, there's no difference. I can buy a mouse from eBuyer to use at home or in the office. Business products are only differentiated by features and price - a business product will either be simpler (cheaper, bulk-buy PC monitor), or more expensive with richer features (professional HD movie authoring display), but either you can buy and use at home. A business GPU will be sold in bare box packaging and with no software to keep costs down. The same GPU targeted for consumers will come in a flashy box and with a couple of bundled games. You can buy either to use either at work or at home.

    You cannot create a product and control how it's used when bought! You can only try to manage distribution channels. If the only place to get Titan's is nVidia's website and they expressly only sell for non-business purposes, and you circumvent that, you could be challenged for a breech of the sales contract. If a datacenter buys any the cards at whatever volumes they can from here, they generally would be expected to be able to use them however they want - in servers, office PCs, or at home in the gaming rig. And be able to swap the card between PCs if so desired.

    Edit - I think an important part of this discussion is how Sakura got enough Titans. If nVidia sold them the Titans without any such use caveats, and are now trying to change that, nVidia will be in the wrong. Without any limitations at the time of purchase, no limitations could fairly be imposed after the sale on the products bought.
     
  10. CSI PC

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    So now we are trying to make the case the GPU with its firmware and differentiation between consumer and commercial/business entity and sales agreement/contract is the same as buying and using a mouse.
    I guess we just ignore the cases from shareware/software companies and what Intel does as well.
     
  11. Shifty Geezer

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    The mouse is just an example showing there's no such thing as business and consumer level products in law. You can buy a Ford Van for running a plumbing business or taking the kids to school. You can buy a Sony movie camera for filming a Hollywood blockbuster or making home movies. You can buy a GPU to game or mine bitcoins. You can go onto the Dell website and buy an office PC for use at home, or a home PC for use in the office.

    The only way a business can exclude customers is through conditions of sale, managed through the sales channels. So how were the GPUs sold to Sakura? what were the conditions of sale? These can't be changed after the fact.
     
  12. CSI PC

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    Pharma linked awhile ago how Sakura were looking at Blockchain services, and it is interesting the change in the Geforce EULA strictly defines ok to use for Blockchain commercially.
    While not conclusive it does suggest Sakura changed or expanded the original sale/project agreement that would had been with an Elite/senior sales channel partner or Nvidia directly (although many projects is usually done through their higher partners, even includes such as Cray).
    Anyway buying that many GPUs would be under some kind of project contract and maybe caught Nvidia/partner out that Sakura changed the sales intention so quickly and at worst possibly mislead them; it takes time to setup such a contract and implementation and the Titan Pascal has not been out that long relative to such a project radically changing.

    The law does differentiate between consumer and business entities when it comes to agreements/contract, but I appreciate this changes with countries, and then of course it ties into the discussion about the EULA and those changes.
    Here is the UK
     
    #72 CSI PC, Jan 4, 2018
    Last edited: Jan 4, 2018
  13. Shifty Geezer

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    Yes. I hope you've noticed I've repeatedly said contract law can come into play. ;) If you agree a purchase of equipment for your company at a discounted price, you can't then use that at home, or resell it cheap, as that would go against the contract. If you don't specific a restriction of use at the time of sale, you can't then amend restrictions after the sale has completed.
    That's a possibility. Another is nVidia didn't care to specify any restrictions on use on purchase, then realised Sakura was using a cheaper part instead of the intended professional part and are now back-pedalling to try and force Sakura into paying more. We don't know without the specifics and it'd be wrong to assume one or other is in the wrong without evidence, unless there's good cause like plenty of prior history.
     
  14. CarstenS

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    Enlightened now, coming from my position of ignorance ;) , I see that on the bottonm of a Quadro-page in the Nvidia Webshop, there's the same nonsense paragraph stating I am not allowed to use it commercially without written permission: http://www.nvidia.de/object/legal-info-de.html
    (feel free to use an online-translator of your choice).

    Which, again coming from a renewed position of blissful ignorance, makes me feel like these pseudo-legal statements do in no way relate to either the product being sold or the driver I download in order to use it but rather are put in place to prevent people selling access to drivers etc.

    I recognize, however, that product lines specifically aimed at business users such as Tesla or Quadro, implicitly carry the permission to use them for business purposes. That's exactly where Titan blurs the lines and for me as a consumer it is in no way clear at the point of purchase, that I am not allowed to use those products in any way I might desire (from gaming - they are supported in game-ready drivers - to DL development to crypto-mining to will-it-blend-videos). Since any such limitation is in no way made obvious before purchase would make later imposed limitations void from my layman's understanding of local law.
     
  15. Silent_Buddha

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    It applies to Intel as well. They cannot, in general, legally restrict a corporation from using Atoms, Pentiums, Celerons, Core, or Xeon processors from being used in any environment that the purchaser wishes to use them in and whether they can be resold or must be recycled. All of the aforementioned processors have and are being used in a corporate environment (this includes datacenters and server farms).

    However, they can and do restrict who gets corporate/data center class support.

    Corporations that negotiate a "discounted" bulk purchase price direct from Intel, however, can find limitations placed on what environment that product is used in and whether they can be resold or must be recycled. Intel cannot, however, limit in any way how a consumer purchased product (at retail price or from another seller) is used. Even if that product is purchased by a corporation which intends to use it in a datacenter.

    Historically, the US Government has restricted which countries Intel could export certain processors to, but that is completely different from Intel being able to restrict how their CPUs are used.

    Just like Sony couldn't restrict the use of PS2/PS3 to consumers only, and thus some companies used them to a limited extent in server farms. Sony didn't like that as that generated no game licensing for them and in both cases meant they were taking a loss on each console sold to those companies. However, there was absolutely nothing they could do to prevent it outside of removing the ability to run Linux on the machines.

    So for instance.

    Paper contracts (like those used when negotiating a bulk discount purchase directly from a hardware manufacture) are far more legally binding than Software EULAs (which often are found to not be legally binding when contested in court) or website disclaimers.

    Regards,
    SB
     
    #75 Silent_Buddha, Jan 4, 2018
    Last edited: Jan 4, 2018
  16. CSI PC

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    I did try to emphasise the ignorance was not directed at you but if some buying this commercially and using ignorance as an excuse, same context as some use ignorance of the law to try and get out of what they did there.
    Putting aside even the legal info, look at the actual products.
    The 1st page if the webshop for me is this:
    https://www.nvidia.com/en-us/shop/
    Notice which is shown as professional product, then if you click on a product and then look again at products at the bottom such as Tesla/P100/etc either show they are professional page or aspects related to Datacenter.

    So sure if you ignore every page including legal and just look at Titan you could argue "hey it does not say commercial business entities can buy this and use commercially", albeit even there states 2 per customer.

    I am dropping this for now, but lets see if any business entities actually challenges what Nvidia has done, my position is not going to happen.
    Again to reiterate this is nothing to do with retail consumers....
     
    #76 CSI PC, Jan 5, 2018
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  17. CSI PC

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    My point is the combination of the business entity sale/project contract and the EULA-software (includes firmware) and differentiation between consumer and commercial and limitation of use that can be legal.
    There is also a different process and agreement/contract for purchases for consumer to larger commercial purchases.
    Nvidia can lock it down enough that anyone wanting to do a commercial data center with Titans/Geforce will need to negotiate with them.

    Edit:
    Look to the discussion with Carsten and Shifty Geezer.
     
    #77 CSI PC, Jan 5, 2018
    Last edited: Jan 5, 2018
  18. CSI PC

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    Well it is difficult to ignore the coincidence that the Geforce change allows for Blockchain commercial use, which Sakura was making noise about for some time - pharma linked to this earlier.
    Part of why I feel it is hard to be so critical of Nvidia without balancing against how this kicked off with Sakura-Nvidia and who it will affect generally going forward as only part of the narrative is being presented on publications/forums.
    But yeah we will never know either way as these are confidential agreements/sales; indicator will be how Sakura responds legally, if they can.
    And this has context going forward with other projects/business entities purchases via Nvidia/partners.
     
    #78 CSI PC, Jan 5, 2018
    Last edited: Jan 5, 2018
  19. CarstenS

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    I notice that Quadro is shown as a professional graphics cards and Tesla is not shown at all. Are those not professional products?

    I also notice how it says on the Titan V subpage: "NVIDIA’s supercomputing GPU architecture is now here for your PC, and fueling breakthroughs in every industry." and "NVIDIA TITAN users now have free access to GPU-optimized deep learning software on NVIDIA GPU Cloud." Great incentive for an intended use as a non-commercial home user.
    Yes, I recognize how it also say "your PC" - still, the message is VERY unclear as to the intended and "allowed" field of use.

    And apart from that, I've referred to the local offering on nvidia.de: "The current ordering process for Titan V on nvidia.de only says „Du kannst maximal 2 bestellen“ (You can order a maximum of 2)". Which is also very unclear in terms of wording - beginning with if this is just a limitation per order or per customer. And since this is the local site for ordering, it's part of the contract as per local law. Wonder how you argue with legal ignorance here.

    Yeah, keep putting words into my mouth I've never said... To the contrary, I explicitly referred to a corresponding paragraph in legal notices and pointed out how it absolutely does not make any sense in the context we're discussing here.

    I was ready to do this too, until you came up with ignorance and kept ignoring all that my postings were about. Over and out.
     
  20. CSI PC

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    Carsten.
    Those comments were not directed at you sigh, but if one like Sakura or another business tried to argue from a position of ignorance - I thought that was pretty clear how many times I emphasised in places not directed at you, I can only do that so much.
    I am dropping this because it is snowballing into semantics and grammar from Nvidia site in very select ways to argue now while going nowhere, time will tell how this is interpreted by businesses and whether they challenge Nvidia.
     
    #80 CSI PC, Jan 5, 2018
    Last edited: Jan 5, 2018
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