Monday, 1 March 2010

Is Autodesk’s EULA Enforceable – NIMO – Part III

Recently Deelip Menezes provided an opportunity: by asking Autodesk’s CEO Carl Bass a question relating to the issues I have raised he got an ‘interesting’ reply.

So I thought, lets see if he is also prepared to avoid supporting Autodesk’s EULA and its statement that it IS a contract.

After all if Autodesk says in its EULA it is a contract there can be no reason for Autodesk or its CEO to not support and confirm this position; or is there? So I asked the question, again, and for supporting documentation – the following letter remains un-answered!

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12 February 2010.

To: Mr. C. Bass. CEO of Autodesk Inc and Mr. D. Menezes CEO of SYCODE.

Cutting to the chase.

‘Salespersons’ are morally, and sometime, in some instances, legally required to tell the truth about their products, services and what they are offering. This point neither of you will dispute?

Using ‘telling the truth’ as a starting point let’s work with the concept Autodesk ‘software’ products are licences; Autodesk’s conditions of use being defined in their EULA and Subscription Terms & Conditions.

In reading the Autodesk’s licence documents and terms and conditions we encounter statements similar or the same as the following;

“BY SELECTING the “I ACCEPT” button bELOW this Agreement OR by copying, installing, uploading, accessing, or USING ALL OR ANY PORTION OF THE SOFTWARE you agree to be legally bound by 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.”

From reading these statements we can see Autodesk indicates their EULA and terms & conditions are contracts.

As a customer, with a purchasing background and, a particular point of reference relating to the application and acceptance of contracts; I am now going to ask you, Mr. Bass, to do a very simple ‘thing’. A task well within your scope as CEO (a salespersons) of Autodesk Inc. The task: support the statements found in Autodesk’s EULA and Subscription Terms and Conditions, by supplying me a response - in the form of either an Affidavit or Statutory Declaration - un-ambiguously stating Autodesk’s EULA and Subscription Terms and Conditions, in their previous, current, and complete states, are, in Australia, legally binding and enforceable contracts!

Please ensure, which ever, of the two forms of reply you choose, it is supplied to me - or at least an emailed or faxed copy of the document, with the original following - by the close of business on 19th February 2010 (AEDT).

In all respects this is a very minor chore: but, a very important one. A demonstration to, existing, and potential new, customers of the importance Autodesk’s places on its terms and conditions of use. Your declaration and will also remove, once and for all, the disparity in views currently held by Autodesk’s customers.

Furthermore, providing the Affidavit, or Statutory Declaration, will also demonstrate your personal commitment, as CEO of Autodesk, to provide customers with the truth!

Why by the appointed time? A schedule is needed and it is a reasonable period of time. Furthermore, at the moment, this communication is of limited circulation; however, after the nominated time it is my intention to publish these details in Caveat emptor. Therefore this is a unique opportunity for you and Autodesk to show leadership in the industry and, it would be of some advantage, to Autodesk, to have the response included in my post.

In closing; Autodesk and its dealers have, for too long, avoided handling this topic in a professional and truthful manner. This is your opportunity, Mr. Bass, to right that wrong; and, I am sure, on this occasion - whilst you may (probably will) delegate the task - you will ensure it is done, as requested and, done within the time constraint set.

I truly look forward to reply, Mr. Bass, and the resolution it will provide.

Yours sincerely,

R. Paul Waddington

Proprietor – cadWest

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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!