Wednesday, 19 May 2010

CIP - The Deception Continues.

When I first reviewed, purchased and read RalghG’s book on AutoCAD 2011, I came across a screen capture of, a ‘new dialogue box’ of, Autodesk’s CIP (Customer Involvement Program). Toward the bottom of the dialogue box was the statement “Preview my CIP Data”. Imagine my surprise; over five years of trying to make Autodesk see some sense to their surreptitious and unauthorized removal of data from customers computers, was I now about to find Autodesk had listened (to a single customer) and made a concession along the lines I had been suggesting?

I was eager to find the answer – to that question - knowing full well, if, Autodesk had indeed ‘done the right thing’ I would have NO option (and would happily have done so) but to write positively about the change and accept one of initial reasons behind the creation of Caveat emptor had been achieved. All I needed now was for my ‘2011’ versions of Inventor or AutoCAD to arrive and, I would have my answer.

Inventor arrived first and it was not long after I received the answer to my question: Autodesk’s CIP’s Deception Continues.

I am not sure if I am disappointed or angry – it matters not – what is very apparent is the absolute distain Autodesk and it management have for their customers; the source of their lifestyle. Autodesk have, in one stroke, demonstrated they will use what ever tools of language (spin) they can to deceive and mislead.

The ‘changes’ we see in the CIP dialogue box have most assuredly been done in an attempt to disarm and desensitize their customers. What Autodesk has done is nothing short of rubbish; at best a dismal attempt to mask their long running unauthorized actions and unconscionable conduct!

I should have known better than to have expected Autodesk would have come to their senses, and seen the error of their ways; after all they are lead by management happy to infer I am a lunatic ;-)

Well, a lunatic I may be and will remain until I see Autodesk taken to task for their actions; or change. Autodesk’s customers have only themselves to blame for allowing Autodesk’s intrusive behavior to continue for as long as it has – unchallenged; in return Autodesk has spat in our faces.

As I have said on previous occasions, there are several simple solutions - available to Autodesk - not requiring the unconscionable behavior and the intrusive use of Trojan software and licence terms and conditions. Processes that would protect their customers and allow Autodesk to obtain the data they have stated they want (and recover some market credibility). Their problem: Autodesk simply refuse to consider the alternatives and or to sit down, talk and, take advantage of that fact; resulting in a further conformation, of my belief, Autodesk’s actions do not match their stated intentions and therefore cannot be trusted!

My first sighting of the ‘2011’ CIP dialogue box raised hopes I may be able to say the reverse but reality and the truth don’t permit me to do so – as I have said before – IF YOU HAVE NOT ALREADY DONE SO TURN CIP OFF and LEAVE IT OFF.

The Deception Continues!

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

Monday, 18 January 2010

An Autodesk Subscription Renewal Rejected? – Part 1 of…..

The Abridged version;

The short version of this convoluted 20 day saga starts 5 days after placing a purchase order, for my Inventor Subscription renewal, in the hands of my Autodesk Inventor dealer’s Sales Manager. It, the purchase order, was handed back 5 days later by the Sales Manager (the result of a decision made by the dealer Principal – the Sales Manager’s boss). Autodesk Australia was made aware of what was about to take place, before the order was returned, was asked to be involved but, and, 15 days later – in a letter to me (received on the afternoon of the day prior to Autodesk breaking for CHRISTmas ??? ) – Autodesk ‘wiped’ their hands of involvement; despite the fact Autodesk had sent me (the previous day) a third Subscription Renewal reminder; an email titled - Renew NOW.

That’s exactly what I was trying to do – with payment in hand!

There are two Autodesk dealers, ‘only’, who have the privileged position to trade Autodesk Inventor products, in my area (Sydney, N.S.W.); neither has accepted my renewal request.

Mr. Wolfe may have been denied entry to AU but have you ever heard of a customer being denied access to the software tools of his trade? Autodesk products may be “cheap and used for relatively un-important tasks”, in some eyes, but they happen to form the foundation of my business. Without them I have no business or job; in my case Autodesk products are extremely important. However, the separate action of individuals, taken within three companies, has now combined to make the running of my business much more difficult than, it should be and, it would be for any other person in my area, including my competitors.

Software supplier and dealer fury in full flight: no ‘real’ reasons given for the separate acts but, an educated guess, as to why, can probably be made!

The word, ethics, also springs to mind.

Importantly, it is always individuals, who make decisions, not companies. Individuals within software companies, choose to, surreptitiously penetrate customers computing systems using Trojan software - embedded in legitimate products; use non-negotiable invasive Terms and Conditions of Use in an attempt to take the high ground, refuse to have their actions scrutinized or validated and, to ‘wash their hands of a ‘customer of 25 years’ and;

Other individuals, owning and running software service companies, are now, also making decisions about which customers/individuals can, and will, access the products they ‘sell’ for and on behalf of the software companies. In effect, controlling/choosing who can work commercially, economically and or effectively in the market space they have chosen to SUPPLY; with protected and privileged dealer status!

Are these actions the price I now pay for speaking out about invasive licencing and the use of Trojan software? If so, ALL software users need to take stock and consider some long term ramifications.

Is the future, of (CAD) software use, a situation where it is not which software is suitable, easiest or the most cost effective for you to use; but whether or not the vendor(s) considers you a suitably submissive customer, person or company? If, initially approved of but, at a later date, you prove to be a ‘troublesome’ customer, and unrepentant, you too WILL have you access removed – GOD in the ‘cloud’.

Are we, as customers, going to continue ‘sitting on our hands’, allowing software developer led social engineering to continue or, do we heed the now ample warnings; take control of our market place and stop ALL the types of activity, I have spoken out about, in its tracks?

Caveat emptor, indeed!

Always look for the evidence to everything you’re asked to believe.....”
Richard Dawkins.




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The Long Version;

The following is a deliberate ramble linking several different instances and I make no excuses for that or its length. It has several purposes. One being, it is a record of the events; the people and companies involved, done to ensure I have a permanent reference for later use…..

Another; it is an open letter to the individuals involved, highlights their actions, poses several questions and, includes a challenge directed to the management of Autodesk. Who I would willingly, at any time – privately or publicly – discuss what ALL Autodesk employees, their legal people and agents have actively avoided doing now for over five (5) years, and that is; to meet and discuss in depth and negotiate, all to do with their application of unconscionable Software Terms and Conditions of Use; their use of Trojan software and, importantly, their refusal to meet and discuss their requirements relating to my concerns overseeing and validating their invasive actions!

Caveat venditor.

Don’t bother reading further it if you are looking for an outline, for correct grammar, spelling or are going to be offended by seeing your name in print and or dislike having your actions questioned in this forum!

On November 20, 2009 Ralph Grabowski wrote a piece in his blog titled “Should Wolfe Be Denied Entry to Autodesk University?”.

The comments that followed were interesting and showed varied opinion and thought; which is to be expected.

My comment, to Ralph Grabowski’s posting, took the line, refusing Mr. Wolfe entry was childish: ‘Autodesk’ would have been better to allow Mr. Wolfe to attend AU, using the opportunity to address his comments and ‘convert’ him; the professional approach. In doing so ‘Autodesk’ would have demonstrated managerial maturity, a respect for others opinions and, a strong knowledge, confidence and commitment to its products and customers being ‘derided’.

Like Ralph Grabowski & Mr. Wolfe I am no stranger to this type exclusion, with some significant differences. The first event I was excluded from, I was, initially, invited to attend. It was a presentation of Autodesk product; the event was organized by an Autodesk dealer supplying me product. However when the key speaker, the then current reining Autodesk product manager found out I was to attend he said he would not present if I was allowed in; resulting in the directors of the dealership stopping me at the door, refusing me – their invited customer – entry!

Missing out on that presentation meant missing out on information Autodesk’s dealer deemed important enough to organize and invite its customers to hear and for Autodesk to play a key role. But what is more important is that both the Autodesk employee and the directors of the dealership felt they had the right to deny an individual customer access to the same information others in the industry would get to hear and learn from? What it also showed me, and other attendees who ‘witnessed’ what happened, was just how immature the product manager was and how unsure he was about what he was about to present and, as for the directors, well what can you say about any person running a company with so little fortitude and ability as to not have been able to solve the problem they faced, sensibly and in favour of all parties.

Now, Mr. Wolfe made a comment it may have been prudent to avoid and, as I know absolutely nothing about the guy I looked at his comment and measured it against what I know I and my customers do, and see the situation, he outlined, differently. I guess I know what is important in mine and my customer’s context and as Mr. Wolfe is not part of our life, neither was his comment directly relevant, or worth ‘getting up any steam”. If missing AU was a result of his reported comments, at least it had a similarity to other exclusions.

But my exclusion this time around takes the process into new territory: enforced with no reasons given, it strikes directly at a persons (my) ability to access the ‘tools of his trade’ and, to continue to run a business; and, again it is an AutoCAD dealer metering out the pain by simply refusing to accept my purchase order and payment, on behalf of Autodesk, to renew my Autodesk Inventor Subscription!

As I said in my comment about Mr. Wolfe’s exclusion; it is individuals who make these decisions and, in the first instance, on this occasions it was the dealer principal; Jamie Delves, head of an Autodesk Premier Solutions Provider called Envision Solutions Pty. Ltd.!

Here is a rough outline of events; on the 27 Nov. 2009 I handed to Envision’s Sales Manager an order for my subscription renewal with the request it be processed and paid by mid December 2009. Five (5) days latter he returned and handed back the order, simple stating, Jamie (his ‘boss’) was not prepared to accept it – no reason was given. To his credit though, for his own reasons, I was told, before he came to my office he did ring Autodesk and outlined what was to occur and, he was of the ‘belief’ Autodesk would ‘assist in some way’. So, my response was simple; as a subscription is a deal between Autodesk and a customer*** - a dealer only being the booking agent – and given he had already made Autodesk aware of the situation, I said send the purchase order to Autodesk Australia, ‘with your covering letter’, and let them decide if they want to ‘accept it’ and or to hear what their suggestion(s) might be; this was done, I believe the next day.

It is easy to see what should have happened here, and I didn’t care who got the cheque; subscription is what it is so it matters little who takes the money, on Autodesk’s behalf, provided it is paid, in full and on time.

‘Nothing much happened’ for a week then several emails and phone calls solicited comments like, “Autodesk are trying to work out who can handle it..” and, “I have asked her to speak with you”. The phone call never came: what came instead, twenty (20) days after issuing the purchase order, on the afternoon of the day prior to Autodesk going into CHRISTmas recess, was a letter, from Autodesk’s Channel Program & Operations Manager, Clare Wharrier.

The letter started by incorrectly stating I had requested to renew my Subscription directly with Autodesk. It went on to say “Unfortunately in cases such as yours, we do not transact directly but have resellers to sell directly to customers such as yourself”. Well yes, I knew that was the case but, Jamie Delves - Envision, an Autodesk Premier Solution Providers and the dealer listed on Autodesk’s reminder email as the dealer to contact***, didn’t want to accept my order or payment on Autodesk’s behalf so, who would?

Well Autodesk had an answer for that question, the letter went on; “Please got (Clare’s words not mine) to our web site for the list of partners (sic’ there’s that partner thing again Ralph Grabowski) with whom you can renew your subscription”, followed by Autodesk’s web address listing dealers.

Now here’s the twist; Autodesk’s dealers are like many animals, territorial; and, like animals they choose and fight for a spot, in the world, to set up an office, and for Autodesk’s permission to do so. Now in Australia that means Inventor dealers trade ‘only’ in the state allocated, (in my case that is the New South Wales, Sydney is the capital), and ‘not outside’ this area ;-)

Autodesk list two dealers, for the State of N.S.W., as suppliers of the ubiquitous Inventor software. Envision I have already mentioned: Cadgroup Australia is the other; a company I dealt with for many years, the one who denied me access to their presentation at the behest of an Autodesk employee and, one who has not answered my request, or accepted my purchase order and payment to renew my Inventor subscription.

So, now we have THE two dealers ‘in my territory’ – authorized to sell Inventor and subscriptions – neither wanting to accept my money on Autodesk’s behalf? And Autodesk Australia in a position, it would appear, unwilling or unable to ‘encourage’ their privileged designated territorial Inventor dealers into accepting my money on Autodesk’s behalf?

The closing sentence, of Autodesk’s letter had this little gem; “Please be aware we cannot and do not make it mandatory for our resellers to do business, or refuse to do business with you or anyone else.” This may be true but you have to wonder at the ethics in play.

For one Inventor licence twelve month subscription - $1340.00 for Autodesk, $335.00 for the dealer, $167.50 for the government.

Not big biscuits, but these are the tools of my trade* and individuals within (remember it is always a person or people who make decisions, NOT companies) Envision, Cadgroup and Autodesk Australia have chosen, for their own undisclosed reasons – to not allow me to access, their software product and services, in a ‘normal’ manner, as others, including my competitors, can?

An aside: Anyone spot the business opportunity for some serious corporate customer relations training for the owners and managers in these three companies ;-)

* So here is something to ponder: outspoken I am about Autodesk’s licencing and the use of Trojan software but I have been selling and supporting Autodesk products since 1984 when first employed by the then and original distributor (of IBM versions) of AutoCAD and when that company closed (1990) I became self employed and continued selling and supporting Autodesk MCAD products, as a small niche support orientated dealer until Autodesk decided I no longer fitted by imposing un-attainable sales targets – support is only good in Autodesk’s eyes if it is backed by large in number NEW sales – so end of the MCAD dealership. They left me the ability to sell AutoCAD though, but, it had to be sourced through a secondary supplier** not Autodesk. MCAD customers stuck by me and some still do (over 23 years for one), I re-organized, support and training playing a larger role even in the MCAD space. Now this is a significant point; even whilst I do and will continue to speak out about Autodesk’s licencing and its use of Trojans – for as long as they continue what they are doing – I still continue to promote the use of their products (MCAD) and on any given week can be training between 10 to 16 individuals in the use of AutoCAD and Inventor in both my private work and in institutions. A critic; yes, but not one setting out to damage Autodesk, nor its products application and use.

My two subscriptions for Autodesk’s products are extremely important to me as being the only way I remain current - and ‘legal’ ;-) - to ensure the training I offer, and do, is as current as it can be. However it would appear 25 years of experience and dedication to Autodesk’s customers’ counts for naught if you are seen as not fitting the mould and can be bullied aside. What does this say about the individuals, who work at Autodesk and, those who own and run Envision and Cadgroup, about what they see as important for our/your industry?

**I said I was able to sell AutoCAD sourced through a third party distributor and at the moment I still can but, Autodesk are removing the ability for people like me to sell AutoCAD in February 2010 making it available, again, only to ‘qualified’ dealers. Yep, that’s correct, Autodesk let every man and his dog sell AutoCAD as a retail product and now want ‘qualified’ dealers again. Of course the ‘main qualification’ is meeting sales targets. Will I qualify, who knows – knowing the product(s), the business, having long standing loyal customers, training, supporting and introducing new users on a weekly basis to Autodesk products for 25 years is not the qualification required.

***Autodesk send emails directly to subscription customers reminding them of the impending renewal. I receive six reminders, the first being some three months ahead of the renewal date and the last one on the 15th December 2009 and it was titled RENEW NOW. Autodesk’s Pontius Pilate letter is dated 16th December 2009 and was delivered on the afternoon of the 17th December 2009. Autodesk went on leave, for CHRISTmas, on the 18th December 2009 – my order was placed in the hands of Adam Scully on the 27th November 2009.

Ralph Grabowski asked in his post, “Should Wolfe be Denied Entry..etc.”

I ask, should I (or any other person for that matter) be denied ‘normal’ access to Autodesk’s products because;

I am critical of Autodesk’s invasive licensing policies and use of Trojan software or;

Is there another reason my customers should be disadvantaged and my business be destroyed – if so, what is it, Jamie (Envision), John&John (Cadgroup), Clare and Carl (Autodesk)?

What do other software users think? Does being critical of any product you use mean you should no longer have access to it?

Please, before you inundate me with facts, and comments, relating to my ability to choose alternate software stop and think about what you are about to say in relation to my situation and business. At its simplest level, if you can demonstrate how, me, owning and using, as an example - Solidworks in my office would be a good advert for selling training courses in the use of AutoCAD and Inventor, I would be only too happy to listen to your reasoning.

At the other end of the scale and of more importance, consider; unreasonable and unconscionable Terms and Conditions of Use and the use of Trojan software is not confined to only one software developer; ‘out of the fat and into the fire’ in many cases it would be!

I indicated Autodesk’s actions in relation to Mr. Wolfe, reflects the behavior of children and in a recent comment about ‘The Orange Rectangle etc…’ Deelip Menezes said, “Frankly, my six year old and two year old fight over more reasonable things.” I tend to agree: when you look at some legal suits, software developer and dealer reaction to my comments about intrusive, unconscionable Terms and Conditions of Use and the unjustified use of Trojan software one can only conclude it is nothing short of behavior befitting children who ‘chuck tantrums to get their own way’!

Just how much power, and access, are you and society, prepared to give software companies, run by individuals who have agenda which may not match what is best for society as a whole; who have little respect for alternate view points and, who cannot separate their petty thinking from their business decisions?

I’ll conclude this epistle with a challenge to Autodesk’s Board of Directors and CEO Mr. Bass. Five years is long enough for your company, if it has nothing to hide, to have answered my reasonable questions and concerns. I challenge Autodesk to appoint a representative to meet with me and discuss what Autodesk has been avoiding for a very long time – what have you got to loose?

My quest for answers has always been about making our market place equitable, and you know that to be the truth; better for both software developers (Autodesk) and customers. Autodesk chose to believe it had a right to dominate and intrude on customers – and is perceived that way in the market place. Making it more difficult or destroying my business will achieve absolutely nothing for Autodesk and its dealers; the market has its opinion set and you cannot trade or profit from my loss, so why bother.

What stuff are you and your crew really made of Mr. Bass? I have said many times before; all the issues I have raised have very simple solutions. Are Autodesk individuals going to remain in the software industry as ‘childish bullies in short pants’ or are they going to grow up, face the reality customers are entitled to the same protections and rights as Autodesk and work towards that end or, is the value to be found in good customer relations a job too demeaning, too difficult or too complex for minds calibrated in sales.

What has Autodesk to gain by tackling my concerns? A considerable amount! Goodwill in business can, and is, measured and used in many ways. Address the situations I have raised, with your customers interests in mind, and the goodwill generated will be marketable and profitable!

Your call Mr. Bass, are YOU up to the challenge?

This latest action against me, by an agent of Autodesk, gives me considerable cause and good reason to continue my pursuit for the truth behind this latest action, those that have preceded it and the continued reticence of these companies, and individuals, to justify their unconscionable actions and their unending belief they have the right to abuse their customers trust and their privileged position.

“Like a dog with a bone”, I have absolutely no intention of letting go of my issues until they all are sensibly discussed and answered as I believe they should be.






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It is not the critic who counts: not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again…..who spends himself in a worthy cause; who, at the best, knows, in the end, the triumph of the high achievement, and who at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat…..”
President Roosevelt.

Thursday, 27 August 2009

Software ‘Licence’ Compliance - It’s Your Legal Obligation?

My interest is in the second part of the title - “It’s Your Legal Obligation”. This eye catching statement is the heading of the paraphrased paragraph following – and the original. Firstly however, it is the contents of the paragraph I will address as it is important to have a correct view of the statements within to understand why I believe the title is misleading.

“1. It’s Your Legal Obligation

The Developers’ End User License Agreement (EULA) is a contract between you and ‘The Developer’. It governs and protects your right to use ‘The Developer’s’ software. Knowing and complying with the terms of the EULA keeps you from breaching this contract, and on the right side of the law”.

Used as the opening paragraph - in a handout distributed by a software developer – the paragraph makes a very definite statement relating to the contractual nature of the EULA which is, in most cases, relating to software, far from factual. It goes on to say the EULA "governs and protects" a users rights, concluding; “knowing and complying with the terms of the EULA”, somehow keeps the customer(s) “on the right side of the law”.

Handed out at a promotional event this attempt at hoodwinking customers might appear to have been a good idea; but was it? Are the statements correct? I have already demonstrated many/most software EULA are not contracts, despite what software developers would like us to believe. In saying that, it then follows ‘knowing and complying’ does not ‘protect’ a user nor keeps the customer(s) on the ‘right side of the law’.

The one comment going close the real function of the EULA is the mention it “governs” your right to use ‘The Developers’ software. It has long been my opinion ‘click thru EULA’, found in many pieces of software, are nothing more than a – desired - code of conduct provided by the ‘The Developer’. It does not actually govern the user; it only outlines how ‘The Developer’ wants the customer to behave after ‘purchasing’ and, whilst using their software.

So, given EULA, in the main, are NOT contracts, provide no protection – for the customer/user – and, play no ‘real’ role in keeping the user on the ‘right side of the law’; it seems somewhat contradictory to headline those statements with “It’s Your Legal Obligation”

To say, “It’s Your Legal Obligation”, is a ‘smoke and mirrors’ statement – made by ‘The Developer’ for no better reason than to cloak the EULA in credibility it does not deserve and cannot support. Like other magic tricks; if the user wants to believe they have agreed to a contract that is what they see. The reality however is considerably different. The dangers of not fully understanding how ‘The Developer’ is performing the ‘trick’ could be considerably more costly – to the user - than watching coins disappear and re-appear in a magic show.

EULA, as found in software, have undergone considerable change; in some cases those changes have not always been made in the best interests of the customer. That fact, in itself, is of no surprise; after all, ‘The Developer’ would argue, ‘it’s our software therefore we can do what ever we want’ – and they do! Their statement might be true except for the fact ‘The Developer(s)’ wants to insist the EULA is a contract: I argue it’s nothing more than an unenforceable, suggested, ‘code of conduct’.

As a ‘code of conduct’ I would agree ‘The Developer’ can outline any conditions of use s/he chooses and the users will decide – without penalty – if s/he complies or not. However, if a EULA is to be accepted as a contract, it MUST be negotiable and an agreement between parties. Failure to comply, by the user and or ‘The Developer’, once the terms have been agreed on by both parties, is no longer an option and penalties may apply to both parties. Simply stating the EULA is a contract, or selecting the “I Agree” button does not make a non-negotiable EULA a contract!

So, the statement that caught my eye, “It’s Your Legal Obligation”: as a heading performed the function of drawing my attention; but as it is misleading it also draws my criticism. Misleading because it wrongly primes the reader prior to reading the statements that follow, which are, misleading and or downright false!

Now, to vendors and ‘The Developer’ I say this; “It’s Your Legal Obligation”, to be truthful in promotions; about your products and what you believe are your customers’ obligations in relation to you and your products. Furthermore, “It’s Your Legal Obligation”, to ensure you are not abusing your very privileged position by conducting surreptitious activity and using customers computing systems for your own purposes!

It might have seemed a good idea - ‘Developer’ - to infer how your customers might stay “on the right side of the law”; but are you?

“Eh! What on earth you getting at? Are you suggesting ‘The Developers’ are using their customers computing systems for their own purposes”? Stay tuned; all – or more likely only part – will be revealed, next!

In the interim here is a question for readers to consider, answer and or comment on: “At what point does it become legal for ‘The Developer’ to use their software products – critical business software – as the vehicle to collect and remove data, of any kind, from your business and design computing systems without your authorization and oversight?”

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***;
“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.

Tuesday, 4 December 2007

Autodesk Responds to Caveat emptor.

Well, actually Autodesk’s lawyer did, via fax, and therefore it is left to me to post it to the blog as I indicated I would; in doing so I will comment simultaneously.

I quote to avoid misrepresentation, Autodesk’s lawyer says;

“Your most recent email of 19 August 2007 requests a response to your open letter directed to our client at http://miletter.blogspot.com dated 17 August 2007. Your open letter repeats the same ill-conceived grievance in relation to the audit clause in Autodesk’s End User Licence Agreement that our client has responded to fully in the past.

Our client will not be drawn into responding to your weblog and in any way validating your unfounded complaint. The weblog appears to have been established by you for the sole purpose of attacking our client.

We reiterate that any further communications with Autodesk, or its officers or employees should be directed to us.

Our client expressly reserves its rights in full should you take further action to harm its business reputation.”

So I guess I can assume from this response that it is not a response to my weblog because a response would in some way validate the ill-conceived grievance I don’t have :-)

Disclosure!, lawyers love words and expressions and the response detailed is only four paragraphs of nine, the other five paragraphs preceding those quoted are in the main irrelevant in terms of the open letter (as are two of these) and therefore have been omitted; though having said that I guess they all add important bulk to the letter.

On the lighter side, take note of the sales tool embodied in this paragraph. Starting with, “We reiterate….”, this sentence ensures, or at least hopes that further business will be following but as those of us in sales know repeat business is normally a function of customer satisfaction not instruction; weeell, it’s the thought that counts ain’t it**;-)

Another PR tool at work here is the “head in the sand avoids unhappy customers’ principle”. A policy that will work for a period of time but one that ensures the same problem customer will re-surface, as a problem, at some point in the future. Most truly customer oriented companies have a very different and much more ‘how can we help you’ approach: you all know which approach attracts and encourages repeat business.

I digress: what is actually very important in these paragraphs are these sentences; “…..unfounded complaint” and, “Your open letter repeats the same ill-conceived grievance in relation to the audit clause in Autodesk’s End User Licence Agreement that out client has responded to fully in the past.”; and why are these portions so important?

Two reasons, and to start lets look at the second part first; “that out client has responded to fully in the past.” Not so say I: in my reply to Autodesk and their lawyers I made the following statement; “This I found to be a very interesting statement and again it is in need of correction. My general questions relating to the Subscription and Licence contracts and those questions that have more specifically aligned with the Audit clauses HAVE NEVER BEEN ANSWERED. However as you believe that they may have been, else why would you have penned that sentence, then it might be a good idea if you were to look for copies of those answers and forward them to me as quickly as possible. For it would seem to be a pointless waste of time for us all to continue communicating in this form, and for me to continue to have the concerns I do and not be using my software because of those concerns, if the answers to my questions have simply been lost somewhere in the system.

If you cannot find these, previously supplied, replies and assurances, want to provide them to me, but have forgotten or cannot remember what the original questions, I asked, were then please do not hesitate to request me to re-ask the questions; or to make matters easier just reply to my Weblog, through the Weblog and again another problem, as you see it, may be solved. You see, the solutions are all so easy but, hey, why let facts or sensible discussion and effort get in the way of a verbal, time wasting stoush?”

That reply was sent on the 4th October 2007 and as I have not received a response, thus far, it is fair to say that I am right and that my Claytons “ill-conceived grievance” has never been answered.

unfounded complaint “, “ill-conceived grievance in relation to the audit clause in Autodesk’s End User Licence Agreement.” These are, of course, the most important parts of each sentence; Autodesk seem to believe my questions and suggestions are an unfounded complaint and an ill-conceived grievance, do you?

Let’s look at the facts, reviewing again, one of Autodesk’s several audit clauses, it reads:

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.

A small, significant, part of this clause clearly states - electronic means - does it not? And when read in context, Autodesk are ‘requesting’ we give Autodesk permission to use electronic means to access our premises, design and computing systems!

Now right at the very outset I had difficulty with this clause, it contradicts commonsense, raised my curiosity and initiated some thought, the results of which are laid out in my open letter and in the questions - that remain un-answered - and suggestions I have also made to Autodesk.

Make no mistake my concerns are neither an unfounded complaint nor an ill-conceived grievance: Autodesk is requiring you and me, their customers, to give Autodesk electronic access to our premises, our design and computing systems and they are refusing to accept that in doing so it is only reasonable that they allow US a measure of control, unconditional individual, and independent scrutiny of their audit processes - THEY ARE RESISTING THIS? – WHY? This HAS to be determined and seeking that answer will continue to drive what I do.

Consider this, is Autodesk REFUSING TO PROVIDE FULL DETAILS OF THE INFORMATION AND DATA THEY ARE INTENDING TO COLLECT and MORE IMPORTANTLY IS Autodesk REFUSING TO ACCEPT A USER SHOULD KNOW WHAT DATA IS TO BE COLLECTED, BY Autodesk, FROM A USERS COMPUTING SYSTEMS, BEFORE ACCEPTANCE OF THE CONTRACT AND THAT Autodesk MUST ALLOW THE INFORMATION BEING CREATED, COLLATED AND TRANSMITTED, ON and FROM A USERS COMPUTING SYSTEMS, TO BE INDEPENDENTLY VETTED, VERIFIED AND VALIDATED BEFORE IT IS SENT TO Autodesk?***

Additionally, DATA CREATED AND COLLATED FOR TRANSMISSION ON and FROM OUR COMPUTING and DESIGN SYSTEMS IS OUR DATA, ARE WE NOT THEREFORE FULLY ENTITLED TO KNOW AND SEE WHAT IT IS BEFORE A THIRD PARTY (Autodesk) DOES?***

To close these issues down all Autodesk has to do is accept the commonsense approach I have suggested, or similar, and they may have what they want. Alternatively Autodesk can continue to hold its current position in the trench and I will continue to bring the issues to the fore through Caveat emptor, and other venues, until Autodesk does see sense and accepts a position and process that gives more than just lip service to customers’ protection*.

~~~~~~~~

Three final comments, one of which I will expand on – what is actually collected by CIP*** - in a future posting on this blog;

One) Don’t be fooled by the ‘reasonable notice’ in some Audit clauses; it does not appear in all contracts. Staff love to throw this up as if it is some form of protective shield, it is rubbish, acceptance of the contract is notification, therefore;

Two) Understand, Autodesk’s Customer Involvement Program (CIP***) is a Trojan vehicle, of un-known un-controlled “electronic means”, accessing your computing and design systems; a software tool you should also be very concerned about. Until Autodesk cough-up, if you have not already done so turn Autodesk’s Customer Involvement Program off NOW, if not sooner, in all your Autodesk software and any other software that you have that has similar functionality; and there are others out there. Furthermore, delay no longer; check, read and make sure you understand ALL your software licence contracts, Autodesk are not the only ones to watch.

Three) *The following comments appears in an Autodesk web site;

“non constructuve and spread rumors that CIP was being used to track piracy.. He is also non constructive on the EULA.”

The spelling errors are the authors, have been repeated in the interests of accuracy and are a clue to ownership.

Who do you think the comments refer to and while you’re thinking, ask yourself these questions; why are the comments there and for what purpose? What other personal comments and information, about Autodesk’s customers, are floating around in Autodesk web pages?

And, in allowing this type of information, allowing it to be found, to remain after notification, on a company web site should we customers believe that data collected in Audits, and through the use of Error reports and CIP, should be entrusted to the same organisation and personnel?

R. Paul Waddington.
CAD Software Consumer WatchDog & Bone.


** “You WILL have fries…..riiight…..or else…I’ll…!”

*** “We have a load of instrumentation in our code that watches what customers really do with the software.” Buzz Kross – Autodesk Inc. Interview reported in mcadonline.com.
_________________________________________________________
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!