digitalwanderer said:
Just thought I'd clarify me position for WaltC. I DO think that nVidia cheated, but I really think that FM would have been doing themselves a big favor had they played it differently and used a different word in their report.
I just didn't like the way the walked into that legal trap by using the word "cheat", they could have kept themselves in a much stronger position
legally by using "non-standard optimization" or some such and not have given nVidia the ammo to use lever against them.
I do believe nVidia cheated Walt, I'm just talking from a legal strategy hindsite perspective here.
I understand that, DW...
My thought here is that there was no "legal trap" for FM aside from receiving threatening letters from nVidia legal. Aside from FM's use of the word cheat (which they convincingly backed up with proof), I think FM would have received such letters from nVidia anyway--whether they used the word "cheat" or not. Lots of other people, including analysts, have gone on record with the word "cheat" in characterizing what nVidia is doing, but none of them to my knowledge has received threatening emails or letters from nVidia legal as a result. Of course not--nVidia wants to limit PR exposure on this topic to the greatest extent possible. (If the can is crawling with worms the last thing you want is to see the can opened.)
At most, even if nVidia sued FM and the issue went to court, it would not have revolved around use of the word "cheat" at all. Rather, nVidia would have to have proven first of all that FM had *erroneously* used the word "cheat," and even more importantly that FM's use of the word had damaged the company financially. So the focus would have been on the audit report and all of the other words used in it other than "cheat". In the absence of being able to prove that FM "lied" or "erred" when it used the word cheat nVidia would have had no case whatsoever (unless nVidia served up a libel suit, in which case it would have had to prove that FM deliberately fabricated the story and lied about it--which nVidia could never have proven.) Secondly, nVidia would have had to prove financial damages directly caused by the FM report, which would have been nigh impossible for them to do. This they would have had to do to have any hope of winning their case (no damages = no case.) Third, FM would then have had the option to countersue based on all the negative remarks nVidia has made publicly about FM's software since December of last year--and I daresay they'd have had an easier time showing damages than nVidia. Fourth, escalation in publicity of the matter was something nVidia absolutely did not want to see.
Basically, FM got threatened with a civil suit it was very unlikely nVidia might have received any positive benefit from pursuing. Moderation of the word "cheat" to "application optimization" in the 3DMark audit report was done by way of a compromise. On the face of it it appears nVidia didn't get very much out of its threats in the way of positives. However, as FM is being extremely tight-lipped about *what else* it may have agreed to in the course of its dealings with nVidia legal, we simply don't know to what degree FutureMark has compromised its integrity, if any. That's what is most troubling out of all of this.
It's much easier to talk about lawsuits than it is to engage in them. In this case nVidia never had to do anything more than just talk about it. There's another way the word "trap" can be spelled in this case--and that is "bluff"...
I think that what happened here is that FM executives are so leery of engaging in lawsuits of any type that if any company anywhere threatened a lawsuit they would quickly seek to placate that company to whatever degree it might take to stay out of court. Staying out of court is never a bad idea, of course, unless the underlying basics of your business are being threatened. In that case you might have to do it simply to protect your interests. It's difficult to imagine how nVidia's conduct toward FM's software products over the last six months might have been *more* threatening to the company, IMO. IE, if ever there would be a justification for FM going to court to defend the integrity of its products, nVidia's relentless attacks on the company's products over the past several months would be it. That's why I think FM should have called nVidia's bluff.
