Intel Included Gag-Order In Microcode Update – Update: Gag-Order Removed

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Aug 23, 2018
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[Editor’s Comment: See update below]

So something pretty detrimental to optics was included in Intel’s recent microcode update. A gag-order not to use any comparative or benchmarking software to test the new security patches was present in the licensing boilerplate. Needless to say, this is bad – very bad. I reached out to Intel and they let me know that the issue was being handled and the license is going to be updated post haste.

Intel responds to license update forbidding benchmarking: rolling out an updated version soon, welcomes all feedback

Originally spotted by Bruce Perens, the last clause in the microcode update that fixes critical side channel attacks – like spectre and meltdown – prohibits users from figuring out just how much difference the fix made. There had been (educated) speculation that a fix would not be possible without a decrease in performance and such a gag-order would curb the spread of information to the consumer. The rumored performance hit is in the range of 10%-15%. It goes without saying that now there will be even more people interested in benchmarking these updates than before.

Gag orders very rarely work of course, due to the Streisand effect, so its always interesting to see companies try – that said, I am hoping that this was the work of some over-zealous lawyer in their legal department and not an actual calculated decision by an exec. Here is the bare clause that’s causing the headaches:

The offending boilerplate: You will not, and will not allow any third party to (i) use, copy, distribute, sell or offer to sell the Software or associated documentation; (ii) modify, adapt, enhance, disassemble, decompile, reverse engineer, change or create derivative works from the Software except and only to the extent as specifically required by mandatory applicable laws or any applicable third party license terms accompanying the Software; (iii) use or make the Software available for the use or benefit of third parties; or (iv) use the Software on Your products other than those that include the Intel hardware product(s), platform(s), or software identified in the Software; or (v) publish or provide any Software benchmark or comparison test results.

And Intel’s reply to us:

Intel’s reply: “We are updating the license now to address this and will have a new version available soon. As an active member of the open source community, we continue to welcome all feedback.”

Intel did respond fairly quickly to my email and it looks like they will be rolling back the offending clauses in the license soon enough (we’ll let you know either way). It does look like this was an honest mistake, because I doubt any executive with know-how of the market would be dumb enough to think an order like this would actually work. Unless their aim was to make sure everyone benches the hell out of the new updates – in which case they were spectacularly successful.

Update: 10:44 AM, 23 August 2018: Intel’s full updated license and statement

Intel: We have simplified the Intel license to make it easier to distribute CPU microcode updates and posted the new version http://bit.ly/2w9RjtM. As an active member of the open source community, we continue to welcome all feedback and thank the community.

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