Friday, 17 August 2007
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
Buyer Beware…’, was the title of a letter published in the Sydney Morning Herald on the 24th May 2005. It detailed a fundamental shift in the use of a particular EULA away from being a tool that defined the rules of use for software – reasonable - to a legally enforceable contract containing a number of questionable conditions including one granting the licensor, "the right to conduct an audit on your premises or by electronic means"; unreasonable!
The EULA moved from being a contract defining what you can and cannot do with software to a contract, if accepted unchallenged, that specifically gives the licensor access to your premises, business, design and computing systems!
Caveat emptor, the Blog, is an extension of that original letter and highlights my original, unanswered, requests relating to the addition of Audit clauses in my existing Subscription and Licence contracts. Requests for information and detail that I, as an established licence holder and customers, have every right to; and information the licensor should be compelled and obligated to provide!
If my goal is considered offensive, unjustified or unreasonable it will only be by those who believe protecting their IP is more important than that of others. To them I make no apology; if the issues raised previously had been broached correctly, and in the first instance, they would have long ago passed by.
Caveat venditor: ‘Like a dog with a bone’, I have absolutely no intention of letting go of these issues until they all are sensibly discussed and answered as I believe they should be!