> agree to it to use the software

There's no "meeting of minds" and there's no exchange of value if I simply benchmark a piece of software and then don't use it any further.

This is a bit of a grey zone legally, and steps all over a bunch of consumer protection laws, free speech laws, etc... depending on the jurisdiction.

IMHO governments should explicitly ban these "gag clauses" because it prevents free market competition if customers are not allowed to benchmark software and publish the results.

I fully agree with you that governments should pass laws that restrict the rights of a copyright holder on what they are allowed to control by licensing.

However they haven't, so until they do, you're stuck with the license as is.

As for "meeting of minds" etc and exchange of value, that's irrelevant to the conditions of the license. It's not a contract. It usually starts off with something like "By using this software, you agree to the following terms...".

Only to the point it doesn't infringe on your statutory rights.

In the EU (and still the UK since they've not changed the law since) you have the right to benchmark software.

However, it doesn't include the right to publish the results, so you can only do it internally for Oracle and any software that has similar clauses.

There's freedom of speech missing somewhere in this, I guess, maybe, not sure where, just a hunch

The First Amendment doesn't prevent the government from enforcing contracts between private parties who have agreed not to speak.

There's still freedom of speech missing somewhere in this... it seems reasonable to me if we were talking about two businesses, but to prevent a john doe to publish benchmark results? Pardon me but that sounds a lot like corporate-sponsored state-backed censorship. Quite ironic considering Oracle is US-based.

If you're john doe, you have exactly the same standing as a business when agreeing to and complying with the conditions of the license from a copyright owner.

It's not the government restricting your right to speak (1st amendment in the US), it's a private corporate "person".

If you don't like the conditions of the license, you can do one of three things:

1. Don't use the software

2. Use the software in violation of the license, and face the consequences if the copyright owner takes action against you.

3. Get the laws of copyright changed so that conditions about publishing benchmarks is not allowed to be removed by a license.

That doesn't address the question of the limits of what should be enforceable in an EULA

Agreed, but that isn't what we're discussing.

The licensing laws around copyright have been developed over the last few centuries. They can be changed.

But until they are, the limits are what they are. Currently, Oracle can put conditions on benchmarking and publishing the results in their license and its not only legal for them to do so, but they have prevailed in court when enforcing those conditions.