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***;
“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.

4 comments:

Evan Yares said...

It's an interesting legal swamp. The fact that you, as a user, tried to get Autodesk to explain the terms of their agreements, and they were unresponsive, gives some credence to the thought that the agreements are unconscionable. But the cost to go into court and prove that, or defend against an Autodesk license suit, would be quite hight.

The thing is... it's not just Autodesk. It's most software vendors, worldwide. Autodesk just happens to be high-profile, and egregious.

Too bad most users don't seem to care all that much about this subject.

Deelip Menezes said...

See http://usa.autodesk.com/adsk/servlet/index?siteID=123112&id=4564716

If you have evidence that Autodesk actually steals information from customer's computers, violates their privacy, causes unwarranted disruption in their business processes, etc. you may want to disclose it on this blog. I am sure it will make up for some very interesting reading and bolster your case.

Anonymous said...

For most users they have little concern with the license agreement. The basic limitations, only one user per seat etc are all they need or care about.

This article is more about tipping at windmills than anything infomative or ground breaking.

Anonymous said...

First issue with the original EULA's was that to access them you had to open the packaging. Then if you didn't agree, how did you recoup the money already spent?

Second, what negotiation is there in this kind of contact. I agree with the poster. A really good attorney should find serious legal issues associated with EULA's especially as the software has long since gone past an option for others in the industry to conduct their business.

Third, as they attempt to prohibit and further restrict the DWG, which in many ways has become an industry standard. It eliminates the other parties for the opportunity to conduct their business. Fostering a complete and total monopolization of an industry and creating a sort of indentured servitude to Autodesk.

I don't think it an issue they don't care. but that they have no real choice indivually due to the market saturation.

Only if the market were to revolt and move to other platforms of if the software to return to being a tool than a noose can the EULA have a chance of holding up.

_________________________________________________________
24th May 2007

Why?
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!