1. It's a mistake. Someone in legal got carried away.
2. The performance of the L1TF mitigation is so awful that someone at Intel thought it would be a good idea to try to keep the performance secret.
(Which leads to option 2b. The performance of the L1TF mitigation is so awful that somemone at Intel is afraid that Intel could be sued as a result, and they want to mitigate that risk.)
I would guess it's #1.
Anyhow, specifics aside, you do make a good point.
Isn't that a blessing?
* cease and desist orders. They could probably argue improper use of trademark or something. And by "could" I don't mean "they have a legitimate legal case" but rather "a flimsy one but one that is still scary enough that few people might want to take the risk / expense testing the argument in court.
* many benchmarks are ran by reviewers who might have access components before they hit the shelves. It would be trivial for Intel to end that relationship. If it's suppliers further down the chain who are providing samples to journalists and reviewers then Intel might put pressure on those suppliers to end their relationships with said journalists. This might break a few anti-competition laws in the EU but it's not like that's ever stopped businesses in the past.
On a tangential rant: I think the real issue isn't so much whether it is enforceable but rather the simple fact that companies are even allowed to muddy the waters about what basic journalistic and/or consumer rights we have. I'm getting rather fed up of some multi-nationals behaving like they're above the law.
It actually makes it easier for Intel to argue that chips are such specialized bits of equipment that even though your average joe can _get_ one, they won't understand how it works and so only highly trainer professionals who have been certified by Intel would be able to reliably benchmarks their products. "As the average user would interpret the results incorrectly, their publication would hurt intel's bottom line". And suddenly you're 95% of the way to having won the case already.
> Cloud Company: Your honor, the security flaws in the hardware and microcode provided by the defendant necessitated the installation of updates, also provided by defendant, which resulted in a 30% loss of overall performance. Since our business model is predicated on selling the processing power of computers that have CPUs manufactured by defendant installed, they are liable for this loss in productivity.
> Intel: Your honor, plaintiff could not possibly prove any loss in productivity. If you'll examine Exhibit A, the Intel microcode EULA, you will see that it expressly prohibits benchmarking. Whether plaintiff is claiming they did these benchmarks themselves or a third party did them is immaterial because our license expressly forbids doing so. Plaintiffs need to show a loss of productivity without relying on performance benchmarks and therefore need to show that the workloads prior to and after the microcode has been installed are equivalent and that the results are detrimental.
Now, I don't expect most judges would go for it since EULAs are notoriously weak, but it does give them ammunition to impugn the evidence. It's always possible a judge or jury would listen to that.
Looking at the license, the only thing it grants the end-user and which Intel could revoke is the license to use the software:
> Subject to the terms and conditions of this Agreement, Intel hereby grants to you a non-exclusive, non- transferable right to use the Software (for the purpose of this Agreement, to use the Software includes to download, install, and access the Software) listed in the Grant Letter solely for your own internal business operations. You are not granted rights to Updates and Upgrades unless you have purchased Support (or a service subscription granting rights to Updates and Upgrades).
So yeah, they could revoke your license to the update and leave you with a lot of insecure silicon...but that's what you had before the update (and, in all likelihood, what you still have after the update, just with a known flaw patched and the system lots slower). I don't even think they could sue you for copyright infringement, because you're not violating copyright, you're violating the EULA.
Weighed against the normal risks of someone actually reading the EULA, it seems like a minor thing that may help in some way.
(it disallows comparing the product against the competitors)
UPDATE: Intel has resolved their microcode licensing issue which I complained about in this blog post. The new license text is here (https://01.org/mcu-path-license-2018).