Software ‘Licence’ Compliance - It’s Your Legal Obligation?

My interest is in the second part of the title - “It’s Your Legal Obligation”. This eye catching statement is the heading of the paraphrased paragraph following – and the original. Firstly however, it is the contents of the paragraph I will address as it is important to have a correct view of the statements within to understand why I believe the title is misleading.

“1. It’s Your Legal Obligation

The Developers’ End User License Agreement (EULA) is a contract between you and ‘The Developer’. It governs and protects your right to use ‘The Developer’s’ software. Knowing and complying with the terms of the EULA keeps you from breaching this contract, and on the right side of the law”.

Used as the opening paragraph - in a handout distributed by a software developer – the paragraph makes a very definite statement relating to the contractual nature of the EULA which is, in most cases, relating to software, far from factual. It goes on to say the EULA "governs and protects" a users rights, concluding; “knowing and complying with the terms of the EULA”, somehow keeps the customer(s) “on the right side of the law”.

Handed out at a promotional event this attempt at hoodwinking customers might appear to have been a good idea; but was it? Are the statements correct? I have already demonstrated many/most software EULA are not contracts, despite what software developers would like us to believe. In saying that, it then follows ‘knowing and complying’ does not ‘protect’ a user nor keeps the customer(s) on the ‘right side of the law’.

The one comment going close the real function of the EULA is the mention it “governs” your right to use ‘The Developers’ software. It has long been my opinion ‘click thru EULA’, found in many pieces of software, are nothing more than a – desired - code of conduct provided by the ‘The Developer’. It does not actually govern the user; it only outlines how ‘The Developer’ wants the customer to behave after ‘purchasing’ and, whilst using their software.

So, given EULA, in the main, are NOT contracts, provide no protection – for the customer/user – and, play no ‘real’ role in keeping the user on the ‘right side of the law’; it seems somewhat contradictory to headline those statements with “It’s Your Legal Obligation”

To say, “It’s Your Legal Obligation”, is a ‘smoke and mirrors’ statement – made by ‘The Developer’ for no better reason than to cloak the EULA in credibility it does not deserve and cannot support. Like other magic tricks; if the user wants to believe they have agreed to a contract that is what they see. The reality however is considerably different. The dangers of not fully understanding how ‘The Developer’ is performing the ‘trick’ could be considerably more costly – to the user - than watching coins disappear and re-appear in a magic show.

EULA, as found in software, have undergone considerable change; in some cases those changes have not always been made in the best interests of the customer. That fact, in itself, is of no surprise; after all, ‘The Developer’ would argue, ‘it’s our software therefore we can do what ever we want’ – and they do! Their statement might be true except for the fact ‘The Developer(s)’ wants to insist the EULA is a contract: I argue it’s nothing more than an unenforceable, suggested, ‘code of conduct’.

As a ‘code of conduct’ I would agree ‘The Developer’ can outline any conditions of use s/he chooses and the users will decide – without penalty – if s/he complies or not. However, if a EULA is to be accepted as a contract, it MUST be negotiable and an agreement between parties. Failure to comply, by the user and or ‘The Developer’, once the terms have been agreed on by both parties, is no longer an option and penalties may apply to both parties. Simply stating the EULA is a contract, or selecting the “I Agree” button does not make a non-negotiable EULA a contract!

So, the statement that caught my eye, “It’s Your Legal Obligation”: as a heading performed the function of drawing my attention; but as it is misleading it also draws my criticism. Misleading because it wrongly primes the reader prior to reading the statements that follow, which are, misleading and or downright false!

Now, to vendors and ‘The Developer’ I say this; “It’s Your Legal Obligation”, to be truthful in promotions; about your products and what you believe are your customers’ obligations in relation to you and your products. Furthermore, “It’s Your Legal Obligation”, to ensure you are not abusing your very privileged position by conducting surreptitious activity and using customers computing systems for your own purposes!

It might have seemed a good idea - ‘Developer’ - to infer how your customers might stay “on the right side of the law”; but are you?

“Eh! What on earth you getting at? Are you suggesting ‘The Developers’ are using their customers computing systems for their own purposes”? Stay tuned; all – or more likely only part – will be revealed, next!

In the interim here is a question for readers to consider, answer and or comment on: “At what point does it become legal for ‘The Developer’ to use their software products – critical business software – as the vehicle to collect and remove data, of any kind, from your business and design computing systems without your authorization and oversight?”

Is Autodesk’s EULA Enforceable – NIMO – Part II.

or put another way;

I invite Autodesk to prove its Subscription and Licence Terms and Conditions are enforceable.

In my previous post I suggested Autodesk’s Subscriptions and Licences documents could not be considered legally binding or enforceable contracts and why. Autodesk did not respond to that posting - nothing new there - but there is some further news from that front.

Let’s look at two never before asked - by me - questions recently put to Autodesk Australia;

a) Does Autodesk believe their Subscription and EULA are enforceable? “Yes, else why would we put them out there”.
b) If I continue to use Autodesk software and reject the terms and conditions am I complying with what Autodesk believes is the law in relation to its terms and conditions? “No” was the answer.

From these answers we can see Autodesk ‘believe’ their terms and conditions are enforceable. I disagree!

As I have said before, the best Autodesk can say is that their Subscription and Licence Terms and Conditions define a ‘code of conduct’. That view, of mine, was formed by Autodesk’s initial ‘over-the-top’ reaction to my early questions relating to the audit clauses and was reinforced by subsequent reviews of why the audit clauses may have been added and to what uses they could be put; which in turn raised more questions, all of which remain un-answered - 1200+ days later - by Autodesk and their legal representatives.

Much of this territory has been covered in other earlier postings. Suffice to say, recent phone conversations (with Autodesk) have left me more concerned than I was previously and they are the catalyst for the decisions I have made, this post and the declarations I make in it.

In its simplest form my declaration is: I reject, in full, Autodesk’s Subscription and Licence Terms and Conditions and will continue to use Autodesk’s products*.

At the core of my rejection is Autodesk’s demand that they have access to my premises, design and business computing systems – for the supposed purpose of ensuring I am complying with their licence terms and conditions. Not ‘unreasonable’ Autodesk believes: but as my questions and time have proven, Autodesk are not prepared to reveal any information relating to the access they are demanding (why?) and that is why their requirement IS unreasonable.

Central to my concern is the inability to validate Autodesk’s actions. If I cannot validate Autodesk’s actions they are not going to get access. If I cannot get the information I request before I must ‘agree’ to the Subscription and licence documents, then I will not agree. As Autodesk’s audit demands have been made long after my commitment to use their products, neither will I stop using their products.

As Autodesk will not co-operate nor negotiate their terms and conditions, and as there is no mechanism to accept only a portion, I am left to make the only sensible decision I can for the continuance of my business. At the end of the day decisions about how my business is to function, who has access to my premises, computing systems, documents and data held within these areas are for me to make not Autodesk.

Had Autodesk chosen to be more sensible about the issues I have raised there is no doubt a solution would have been found that would have ensured Autodesk got what it says it wants and I would have the security and control that is rightfully mine. That this has not happened is entirely of Autodesk’s making. 1200+ days is long enough for any customer to spend trying to resolve an issue with a recalcitrant supplier. It says volumes about the lack of abilities of, and the motives of Autodesk.

Autodesk’s credibility is at risk in this issue: “if you have nothing to hide (Autodesk) why don’t you just give me the information I have requested”? Equally, “trust us” is not an answer and cannot be used as a substitute for transparency.

So, if the Subscription and EULA documents are unenforceable what about the issues of copyright and the protection of Autodesk’s intellectual property? Is a ‘code of conduct’ sufficient?

There will be those who may choose to argue but, from my point of view I treat Autodesk’s software as importantly as customers’ design data, and similar to a book or music I have purchased. I do not need to, nor is it necessary to accept Autodesk’s terms and conditions to understand and adhere to the intent of ‘rules’ relating to copyright.

Autodesk’s intellectual property is however a much more difficult thing to protect: I accept no responsibility to do so and neither should it be expected. Autodesk’s audit clauses - and Autodesk’s belief I should accept their conditions without question – ensures the protection of their intellectual property is not possible. Simply put, if Autodesk believes it is appropriate for me to allow them uncontrolled, unsupervised and non-verifiable access to my business, computing systems, documents and data then they MUST accept that it is reasonable for others to expect the same…..nothing more needs to be said here except, wake up Autodesk!

Autodesk’s inclusion of audit clauses is an attempt at social engineering and a poor attempt at that! What Autodesk’s actions have achieved though is to demonstrate exactly why their software Subscription and Licence documents cannot be taken seriously and why they are most definitely unenforceable.

Autodesk’s reaction to my disclosure of the audit clauses, their failure to allow me to negotiate their terms and conditions and the chameleon nature of their documents all reinforce these facts; Autodesk’s Subscription and Licence documents are not binding contracts and are not enforceable.

The position I have adopted, and outlined herein, is not my preferred option. I believe there are legitimate reasons and a place for realistic terms and conditions but to abuse these tools renders their intentions void, calls into questions their value and in the resulting confusion many users choose to ignore them. A situation that may have its advantages for vendors but it is not one that is in the best interests of vendors, customers and the software business as a whole.

Until now, all my comments and suggestions to Autodesk have been made in an attempt to make Autodesk’s documents applicable and of value to all parties, this is (or maybe was) my preferred option.

Autodesk’s intentions for the audit clauses ‘may have been honourable’ but their surreptitious inclusion into the terms and conditions and, Autodesk’s subsequent efforts in denying me the information I have requested has removed any opportunity Autodesk may have had to claim their intentions were, or are, honourable; that customers’ rights are of any importance to Autodesk, and their Subscription and Licence documents are in any way enforceable.

Autodesk is a company built on ‘innovation’ and ‘innovative’ products but it would appear innovation is only to be found in its products; it is certainly not to be found in Autodesk’s bureaucracy and its dealings with small customers!

With this post I have firmly ‘nailed my flag to the mast’; if I am wrong consequences must follow. However, I believe I am correct: I also believe the position I have been forced to take is appropriate under the circumstances and, it will not be challenged; thus making my declaration(s) applicable to all but a few of Autodesk customers.

R. Paul Waddington.
Proprietor – cadWest.

*In detail I have declared, to Autodesk, the following;

- I have no commercial, contractual or legal obligations to Autodesk Inc., or any subsidiary company.
- I will continue to use Autodesk’s software in a manner I believe is appropriate for business software, design and draughting tools.
- I accept no responsibility to protect Autodesk’s Copyright and or Intellectual Property.
- Receipt of and installation of purchased, or supplied, Autodesk software products and access to subscription tools and services is not an acceptance, by me, of any published, embedded or non-negotiable terms and conditions.
- I do not give my permission to Autodesk, any subsidiary or agent, to supply additional software as part of the products purchased, that are additional to, or embedded in, the software purchased or software supplied and or received as part of additional services, that has a role or functionality other than for which the subscription and software has been expressly purchased to do.
- I do not give my permission to Autodesk, any subsidiary or agent, to load or attempt to load software supplied as part of, or embedded within, products purchased, that has a role or functionality other than for which the subscription and software has been expressly purchased to do.
- I do not give my permission to Autodesk, its subsidiaries or agents, to create, collect, or collate data or information, of any kind, in any form, on my business, design and computing systems that has a role or functionality other than for which the subscription and software has been expressly purchased to do.
- I do not give my permission to Autodesk, its subsidiaries or agents, to transmit to or from, or remove data or information, of any kind, in any form, from my premises or from my business, or my design and computing systems.
- I do not, and will not, accept any terms or conditions relating to Autodesk’s products, and services, that form part or all of Subscription and Software Licence Terms and Conditions that can be, or have been changed and or added to without notice, are non-negotiable and or ill-defined.
- I do not, and will not, accept any terms or conditions relating to Autodesk’s products that form part or all of Subscription and Software Licence Terms and Conditions that can be applied, or used, in intrusive ways and or used to prevent me from conducting my business in a sound and safe commercial manner, or that would prevent me retaining full and absolute control, at all times, of all aspects of my business, including who and what accesses my premises, my business records and documentation and my design and computing systems.

Is Autodesk's EULA Enforceable? - NIMO

For many years legitimate customers, exercising goodwill, have viewed Autodesk’s Subscription and Licence Terms and Conditions as contracts. Those who read the Terms and Conditions used them as I believe they were intended - as a guide that detailed – how we users were to implement and use Autodesk’s software products.

Due to changes made to these Terms and Conditions; customers may continue to see them as they have in the past but the fact is the only way these documents can be viewed is as a quasi code of conduct.

Autodesk’s Subscription and Software Licence Agreements cannot be considered legally binding documents or contracts*! Ill-defined, ill-considered and un-fair clauses, Chameleon in nature and non-negotiable! These are just some of the reasons preventing these documents being considered as binding or enforceable.

Users could be forgiven for thinking they are bound by these documents when reading these clauses;

found in the Licence document***;
“BY SELECTING THE “I ACCEPT” BUTTON AT THE END OF THIS AGREEMENT OR BY COPYING, INSTALLING, UPLOADING, ACCESSING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU AGREE TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN AUTODESK AND EITHER YOU PERSONALLY, IF YOU ACQUIRE THE SOFTWARE FOR YOURSELF, OR THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACQUIRING THE SOFTWARE;”

and in the Subscription document;
“YOUR PURCHASE OF SUBSCRIPTIONS WILL BE SUBJECT TO THE TERMS AND CONDITIONS SET OUT BELOW, AND ALL SUBSCRIPTIONS SET OUT BELOW, AND ALL SUBSCRIPTIONS PURCHASED BY YOU NOW OR AT ANY TIME HEREAFTER WILL BE SUBJECT TO THE TERMS AND CONDITIONS SET OUT BELOW…..”

Considered in isolation these clauses give the impression of applying an enforceable commitment on the user; however when viewed in context, within the whole document(s), with knowledge of the non-negotiable and Chameleon nature of these documents it is easy to conclude, as agreements, they are not enforceable.

Ask yourself the following questions;
…are you prepared to grant un-supervised access to your personal and business premises, design and business computing systems, to any individual, organisation, company and tool or business equipment supplier?
…are you prepared to allow the un-supervised removal of any personal and or business data from your premises, design and computing systems?

…do you accept it is good individual and business practice to enter into contracts that can be amended and published without notice; contracts that make you responsible to discover, if, and what, changes may have been made, and comply?

Just as many of you will be aware of my previous comments, on this topic, you will also be aware of the fact that I have always stated I have a firm belief software developers have a right to protect their intellectual property. Additionally, it is widely known and understood, the protection of intellectual property is not exclusively the right of software developers: it is the right of all and; as software is a primary tool used for the creation, storage, presentation and distribution of CAD and other business data it is imperative those rights be protected using co-operative, transparent and verifiable – business and contract - practices.

Autodesk’s ‘take it or leave it’ approach and access requirements, as defined in its Subscription and Licence documents, are not co-operative, are not transparent and cannot be verified. The access requirements were added in a manner that masked their appearance and at a point in time that makes it extremely difficult – if not impossible, and costly, for existing customers to change to alternative products. Many business software users are, commercially, heavily dependant on their software tools and cannot change these tools with the same ease Autodesk can change its Subscription and Licence documents.

The reality of suddenly finding you are being held a ‘commercial hostage’ adds another reason why Subscription and Licence documents can only be viewed as virtual codes of conduct, not enforceable contracts!

"when liberty becomes license dictatorship is near"- Will Durant.

At the commencement of this post I declared - Autodesk’s Subscription and Software Licence Agreements cannot be considered legally binding documents*; and I have outlined some of the conditions that support my argument.

Users, understand this, “bad things happen when good men won’t speak up”: the situation we currently have is untenable; we need Subscription and Licence Agreements that are fair to both developers and users, negotiable, concise and transparent.

Autodesk’s Subscription and Licence Agreements can be used as effective tools: guiding users’ application of software and as a form of IP protection; however goodwill between both developer and users is needed if this is to be successful. I believe legitimate Autodesk customers have always extended that goodwill; Autodesk, on the other hand, has taken advantage of its customers’ inattention, altruism and commitment to their products, attempting to mould an environment for itself - using its Subscription and Licence documents – to control, inhibit and gain access they would otherwise have found very difficult to obtain. (Opportune to mention here the use, by software developers, of Trojan data collection software embedded within their software products, CIP)

The ‘ball is now squarely in Autodesk’s court’: if Autodesk wants customers to accept their Subscription and Licence documents as contracts Autodesk MUST now make it possible for existing and new users to challenge, discuss, negotiate, amend and or tailor these documents to customer requirements and in doing so they may become ‘effective contracts’: additionally Autodesk MUST be prepared to provide complete and transparent details relating to issues such as access; or, Autodesk MUST return these documents to ones that define only the supply and use of their software.

R. Paul Waddington.

Autodesk Responds to Caveat emptor.

Well, actually Autodesk’s lawyer did, via fax, and therefore it is left to me to post it to the blog as I indicated I would; in doing so I will comment simultaneously.

I quote to avoid misrepresentation, Autodesk’s lawyer says;

“Your most recent email of 19 August 2007 requests a response to your open letter directed to our client at http://miletter.blogspot.com dated 17 August 2007. Your open letter repeats the same ill-conceived grievance in relation to the audit clause in Autodesk’s End User Licence Agreement that our client has responded to fully in the past.

Our client will not be drawn into responding to your weblog and in any way validating your unfounded complaint. The weblog appears to have been established by you for the sole purpose of attacking our client.

We reiterate that any further communications with Autodesk, or its officers or employees should be directed to us.

Our client expressly reserves its rights in full should you take further action to harm its business reputation.”

So I guess I can assume from this response that it is not a response to my weblog because a response would in some way validate the ill-conceived grievance I don’t have :-)

Disclosure!, lawyers love words and expressions and the response detailed is only four paragraphs of nine, the other five paragraphs preceding those quoted are in the main irrelevant in terms of the open letter (as are two of these) and therefore have been omitted; though having said that I guess they all add important bulk to the letter.

On the lighter side, take note of the sales tool embodied in this paragraph. Starting with, “We reiterate….”, this sentence ensures, or at least hopes that further business will be following but as those of us in sales know repeat business is normally a function of customer satisfaction not instruction; weeell, it’s the thought that counts ain’t it**;-)

Another PR tool at work here is the “head in the sand avoids unhappy customers’ principle”. A policy that will work for a period of time but one that ensures the same problem customer will re-surface, as a problem, at some point in the future. Most truly customer oriented companies have a very different and much more ‘how can we help you’ approach: you all know which approach attracts and encourages repeat business.

I digress: what is actually very important in these paragraphs are these sentences; “…..unfounded complaint” and, “Your open letter repeats the same ill-conceived grievance in relation to the audit clause in Autodesk’s End User Licence Agreement that out client has responded to fully in the past.”; and why are these portions so important?

Two reasons, and to start lets look at the second part first; “that out client has responded to fully in the past.” Not so say I: in my reply to Autodesk and their lawyers I made the following statement; “This I found to be a very interesting statement and again it is in need of correction. My general questions relating to the Subscription and Licence contracts and those questions that have more specifically aligned with the Audit clauses HAVE NEVER BEEN ANSWERED. However as you believe that they may have been, else why would you have penned that sentence, then it might be a good idea if you were to look for copies of those answers and forward them to me as quickly as possible. For it would seem to be a pointless waste of time for us all to continue communicating in this form, and for me to continue to have the concerns I do and not be using my software because of those concerns, if the answers to my questions have simply been lost somewhere in the system.

If you cannot find these, previously supplied, replies and assurances, want to provide them to me, but have forgotten or cannot remember what the original questions, I asked, were then please do not hesitate to request me to re-ask the questions; or to make matters easier just reply to my Weblog, through the Weblog and again another problem, as you see it, may be solved. You see, the solutions are all so easy but, hey, why let facts or sensible discussion and effort get in the way of a verbal, time wasting stoush?”

That reply was sent on the 4th October 2007 and as I have not received a response, thus far, it is fair to say that I am right and that my Claytons “ill-conceived grievance” has never been answered.

“unfounded complaint “, “ill-conceived grievance in relation to the audit clause in Autodesk’s End User Licence Agreement.” These are, of course, the most important parts of each sentence; Autodesk seem to believe my questions and suggestions are an unfounded complaint and an ill-conceived grievance, do you?

Let’s look at the facts, reviewing again, one of Autodesk’s several audit clauses, it reads:

“Autodesk shall have the right to conduct an audit on your premises or by electronic means to ensure that your use of all/any versions of the Software complies with the provisions of this Agreement…” etc.

A small, significant, part of this clause clearly states - electronic means - does it not? And when read in context, Autodesk are ‘requesting’ we give Autodesk permission to use electronic means to access our premises, design and computing systems!

Now right at the very outset I had difficulty with this clause, it contradicts commonsense, raised my curiosity and initiated some thought, the results of which are laid out in my open letter and in the questions - that remain un-answered - and suggestions I have also made to Autodesk.

Make no mistake my concerns are neither an unfounded complaint nor an ill-conceived grievance: Autodesk is requiring you and me, their customers, to give Autodesk electronic access to our premises, our design and computing systems and they are refusing to accept that in doing so it is only reasonable that they allow US a measure of control, unconditional individual, and independent scrutiny of their audit processes - THEY ARE RESISTING THIS? – WHY? This HAS to be determined and seeking that answer will continue to drive what I do.

Consider this, is Autodesk REFUSING TO PROVIDE FULL DETAILS OF THE INFORMATION AND DATA THEY ARE INTENDING TO COLLECT and MORE IMPORTANTLY IS Autodesk REFUSING TO ACCEPT A USER SHOULD KNOW WHAT DATA IS TO BE COLLECTED, BY Autodesk, FROM A USERS COMPUTING SYSTEMS, BEFORE ACCEPTANCE OF THE CONTRACT AND THAT Autodesk MUST ALLOW THE INFORMATION BEING CREATED, COLLATED AND TRANSMITTED, ON and FROM A USERS COMPUTING SYSTEMS, TO BE INDEPENDENTLY VETTED, VERIFIED AND VALIDATED BEFORE IT IS SENT TO Autodesk?***

Additionally, DATA CREATED AND COLLATED FOR TRANSMISSION ON and FROM OUR COMPUTING and DESIGN SYSTEMS IS OUR DATA, ARE WE NOT THEREFORE FULLY ENTITLED TO KNOW AND SEE WHAT IT IS BEFORE A THIRD PARTY (Autodesk) DOES?***

To close these issues down all Autodesk has to do is accept the commonsense approach I have suggested, or similar, and they may have what they want. Alternatively Autodesk can continue to hold its current position in the trench and I will continue to bring the issues to the fore through Caveat emptor, and other venues, until Autodesk does see sense and accepts a position and process that gives more than just lip service to customers’ protection*.

~~~~~~~~

Three final comments, one of which I will expand on – what is actually collected by CIP*** - in a future posting on this blog;

One) Don’t be fooled by the ‘reasonable notice’ in some Audit clauses; it does not appear in all contracts. Staff love to throw this up as if it is some form of protective shield, it is rubbish, acceptance of the contract is notification, therefore;

Two) Understand, Autodesk’s Customer Involvement Program (CIP***) is a Trojan vehicle, of un-known un-controlled “electronic means”, accessing your computing and design systems; a software tool you should also be very concerned about. Until Autodesk cough-up, if you have not already done so turn Autodesk’s Customer Involvement Program off NOW, if not sooner, in all your Autodesk software and any other software that you have that has similar functionality; and there are others out there. Furthermore, delay no longer; check, read and make sure you understand ALL your software licence contracts, Autodesk are not the only ones to watch.

Three) *The following comments appears in an Autodesk web site;

“non constructuve and spread rumors that CIP was being used to track piracy.. He is also non constructive on the EULA.”

The spelling errors are the authors, have been repeated in the interests of accuracy and are a clue to ownership.

Who do you think the comments refer to and while you’re thinking, ask yourself these questions; why are the comments there and for what purpose? What other personal comments and information, about Autodesk’s customers, are floating around in Autodesk web pages?

And, in allowing this type of information, allowing it to be found, to remain after notification, on a company web site should we customers believe that data collected in Audits, and through the use of Error reports and CIP, should be entrusted to the same organisation and personnel?

R. Paul Waddington.
CAD Software Consumer WatchDog & Bone.


** “You WILL have fries…..riiight…..or else…I’ll…!”

*** “We have a load of instrumentation in our code that watches what customers really do with the software.” Buzz Kross – Autodesk Inc. Interview reported in mcadonline.com.

A Letter to the Directors and Chief Executive Officers of:

Autodesk Inc.
Cadgroup Australia Pty. Ltd.
Scholastic Australia Pty. Ltd.


As some of you will already know I have been trying, unsuccessfully, to arrange discussions with Autodesk and my Autodesk software suppliers for some time now in relation to changes made to Autodesk’s Subscription and Licence contracts dating back to 2004.

With this letter I am once again asking Autodesk and my software suppliers to meet with me to discuss the issues that can arise and affect my business as a result of accepting Autodesk’s Subscription and Licence contracts that contain Audit clauses.

An Autodesk’s Audit clause states, “Autodesk shall have the right to conduct an audit on your premises or by electronic means to ensure that your use of all/any versions of the Software complies with the provisions of this Agreement…” etc.

Clearly the word “your” in the clause quoted above refers to ‘ME’ as the licence purchaser, as it is ‘ME’ who has to accept Autodesk’s contract conditions before I can use and/or access Autodesk’s software and services. Of equal clarity, it is ‘MY’ premises, computing and design systems Autodesk wants to Audit for compliance.

Unfortunately, ascertaining what makes ME ‘compliant’ is not a simple task, whilst reading the contracts provides insight the reality remains compliance is currently an intangible.

As I have stated, to Autodesk and others, on previous occasions I fully understand Autodesk’s right to protect its Intellectual Property (IP). Furthermore I can understand using an ‘Audit’ of some sort to oversee the application of IP. The problem is however, an Audit in its current form is undefined, so by accepting the contract I am effectively giving Autodesk unfettered access to my premises and systems whilst having no idea what Autodesk are intending to do. Autodesk must understand that granting this type of access unaccompanied by discussion, explanation or detail is neither wise nor good business management. To allow another party (specifically Autodesk or its agent in this case), access to my premises and/or access to load and use software on MY systems that can create, collect, collate and/or transmit data from MY premises and/or computing and design systems to another party without my knowledge, control and/or oversight is simply illogical!

Without details of the Audit procedures and indeed the compliance checklist, it is simply incomprehensible for me to grant another party unfettered access to my systems or premises! Not only is it incomprehensible for me, it is incomprehensible for any user of software to accept such an undefined clause! Indeed, it would never be appropriate for me, any individual or company (Autodesk included) to allow another person or company access to load and use software than can create, collect, collate and or transmit data without the systems owners full knowledge, oversight, control and/or some form of validation.

Licencees such as ‘me’ have an acknowledged obligation to protect not only Autodesk’s IP, but the IP of others and my own and it is for this reason deciding who has access to my premises, computing and design systems and who can create, collect, collate, take or transmit data from my premises, computing and design systems IS FOR ME ALONE TO DECIDE. A Court of Law being the obvious exception.

**As it happens; The information Autodesk requires to determine whether ME and MY systems are actually compliant closely matches information collated when the Autodesk Product Manager* software is run. Few would disagree with this statement and if Autodesk was prepared to provide written assurance the printed output from, an Audit using, Autodesk Product Manager* was sufficient proof of my compliance that would be acceptable to me. Indeed acceptance, by us both, of the Autodesk Product Manager* printed output, satisfies a number of criteria, some of which are:

For Autodesk it provides;
- Proof ‘ME’ and ‘MY’ systems are compliant (after all the stated reason for the Audit is “..to ensure that your use of all/any versions of the Software complies with the provisions of this Agreement…” ).

For Autodesk and ME it provides;
- Being in the printed form only, it allows both parties to quickly agree the Audit was conducted as indicated and that the information sought, to determine ‘MY’ compliance, was the only information gathered and retained.
- Having matching printed records will considerably reduce the doubt that would automatically arise as a result of an Audit conducted without oversight or validation.

For ME it provides;
- Proof Autodesk (or its agent) have sought, from my systems, only the information necessary to ensure ‘ME’ and ‘MY’ systems are compliant.
- In printed form it also provides ‘ME’ a record of the Audit event that can be independently verified and validated.
- Of greater importance, to ‘ME’, the printed output provides a document that can be used to demonstrate to those who entrust me with their confidential design data and documents that I have taken all the necessary steps to ensure their data, is secure on MY systems, will not, and/or has not been compromised by an Audit event.

In summary; in “agreeing to” Autodesk’s contracts I am being asked to accept that Autodesk have a right to define my use of their intellectual property and with this basic premise I have no dispute. This has been the case with Autodesk’s licencing from day one and prior to the inclusion of the Audit clause. In good faith, and up until the inclusion of the Audit clause, I have always accepted Autodesk’s claim on its IP and its expectations that I should make every endeavour to protect their IP from improper use and access.

However the inclusion of the Audit clause(s) changed the Subscription and Licence contracts from being tools that defined how I can apply Autodesk’s intellectual property to ones that provide Autodesk an ‘unfettered right of access’ to MY premises and MY computing and design systems and potentially the data contained therein for the stated purpose of conducting a ‘compliance’ audit that is not clearly defined! With this change I have fundamental and well founded objections!

My requests have always been to speak with Autodesk with the purpose of achieving an outcome that satisfies Autodesk’s legitimate IP protection needs whilst also satisfying the equally legitimate IP protection needs that I and indeed all CAD software users have. Having outlined the reasons for my request and a solution I trust you (Autodesk’s management) will reconsider your current stance and in a reply on this forum provide me the opportunity and assurances I have requested.

I look forward to your favourable and speedy response,
R. Paul Waddington.
Proprietor – cadWest.

* - Autodesk Product Manager Version 2.

** - To determine a licencees compliance Autodesk needs only a printed document detailing the following information, and nothing more!

PC Name (of only computers on which Autodesk product is loaded)
Autodesk Products Name
Autodesk Product Version Number
Installation Location
Serial Number
Organization
Installation Type
Query Date