Monday, 16 June 2008

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.

Sunday, 3 February 2008

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***;

and in the Subscription document;

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.
24th May 2007

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!