UPDATE: Intel has resolved their microcode licensing issue which I complained about in this blog post. The new license text is here.

This was my complaint:

Intel is updating its loadable CPU microcode to handle various side-channel and timing attacks. There is a new license term applied to the new microcode:

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.

Since the microcode is running for every instruction, this seems to be a use restriction on the entire processor. Don’t run your benchmarker at all, not even on your own software, if you “provide” or publish the results.

The security fixes are known to significantly slow down Intel processors, which won’t just disappoint customers and reduce the public regard of Intel, it will probably lead to lawsuits (if it hasn’t already). Suddenly having processors that are perhaps 5% to 10% slower, if they are to be secure, is a significant damage to many companies that run server farms or provide cloud services. I’m not blaming Intel for this, I don’t know if Intel could have forseen the problem. Since some similar exploits have been discovered for AMD and ARM CPUs, the answer is probably “no”. But certainly customers are upset.

Another issue is whether the customer should install the fix at all. Many computer users don’t allow outside or unprivileged users to run on their CPUs the way a cloud or hosting company does. For them, these side-channel and timing attacks are mostly irrelevant, and the slowdown incurred by installing the fix is unnecessary.

So, lots of people are interested in the speed penalty incurred in the microcode fixes, and Intel has now attempted to gag anyone who would collect information for reporting about those penalties, through a restriction in their license. Bad move. The correct way to handle security problems is to own up to the damage, publish mitigations, and make it possible for your customers to get along. Hiding how they are damaged is unacceptable. Silencing free speech by those who would merely publish benchmarks? Bad business. Customers can’t trust your components when you do that.

In writing this story, I used news in this article in The Register and this copy of the license. That’s all the information I have on this issue, at this writing.