Sunday, 3 February 2008
Is Autodesk's EULA Enforceable? - NIMO
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.
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!