Tag Archives: Legal

You can still buy Autodesk perpetual licenses in Europe

Yes, you really can still buy Autodesk perpetual licenses in the European Union. You just can’t buy them from Autodesk.

Where can you buy those licenses? From other customers who don’t need them any more. Unlike some jurisdictions, the EU respects the doctrine of first sale for computer software. This means sale of pre-owned software is allowed, and any EULA restrictions attempting to prevent that are invalid. This was established in 2012 by the EU’s highest court, The Court of Justice for the European Union (CJEU) in the case of UsedSoft v Oracle.

Autodesk and all other software vendors in EU countries have to respect that, so the perpetual license remains valid after transfer to the new owner. The previous owner must be able to document the validity of the license and must delete or disable their copy of the software upon transfer.

While I have no personal experience of the transfer process, according to what’s being said in this CGTalk thread*, it’s all very easy. Fill out a form and you’re done. However, I suggest you contact your local Autodesk office for the details. Don’t bother to ask AVA, she doesn’t know.

I’m no EU lawyer, but my reading of the judgement is that Autodesk is not obliged to transfer any maintenance contracts along with the perpetual license (clause 66). It is, however, obliged to consider the software to be upgraded to the original owner’s level under any maintenance arrangements (clause 67). This means the software license will be permanently stuck on the last activated release prior to the sale. Companies with a single license permitting use by 50 users and who want to shed 20 of them can’t split off and sell those 20 (clause 69). Again, check with your local Autodesk office for confirmation.

If you’ve been through this process, please comment on your experiences for the benefit of others.

Software licenses within the EU are valid in all EU countries, so it would appear there is nothing preventing, say, a German buying a used AutoCAD license from the UK, at least until Brexit is complete. It is unlikely that an EU license will be legally valid outside the EU, as outside Europe Autodesk only permits license transfers under certain circumstances described here.

It’s interesting that this market for perpetual licenses exists, but Autodesk has locked itself out of its own market! Indeed, by ending the sale of perpetual licenses, Autodesk has made them a rarer and more valuable commodity.

Not a topic to be debated publicly

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Over on the oft-entertaining Deelip.com, there was an interesting comment made by Autodesk’s Scott Sheppard. After going back and forth a few times over Autodesk’s then-failure to allow Indian customers legal access to certain free Autodesk software downloads, Scott said this:

I defer to Autodesk Legal on these matters which is where I get my guidance. This is not a topic to be debated publicly. As one of our most active Labs participants, I was just sharing some information with you and your readers.

On the face of it, Scott’s “not a topic to be debated publicly” comment seems pretty silly. Ralph Grabowski certainly saw it that way. In these blog-happy days, a lot of things that Autodesk may not like to see discussed are going to be discussed publicly. Autodesk needs to get used to that fact. Attempting to suppress public discussion of Autodesk policies is not just ineffectual, it’s counterproductive and harmful to Autodesk’s image. The very fact that this problem was fixed as a direct result of being discussed publicly shows that such discussion was not only appropriate, it was positively useful to everyone concerned.

That’s on the face of it. Actually, I don’t think the comment is anywhere near as sinister as it seems. I think it was more of a throwaway comment along the lines of, “I can’t continue discussing this because it really isn’t my area”.

Recently, I have noticed Autodesk opening up somewhat and demonstrating increased responsiveness to publicly aired concerns. I know that Scott is quite open to constructively discussing points of disagreement in public comments on his own blog. So I think we should cut him a bit of slack and just put this down as one of those “it may be what I said but it’s not what I meant” moments that we all have from time to time.

Ralph Lauren – genuinely dumb or trying to be clever?

Vernor wins (for now), customers don’t

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Don’t get too excited, because I’m sure Autodesk will appeal, but as reported at Owen Wengerd’s CAD/Court, Vernor has won the right to resell his used copies of AutoCAD. While this is seen by some as a victory for customers, it isn’t. This doesn’t open up a brave new world in which we are allowed to sell the software we buy once we’re finished with it. If it had, I would be rejoicing as loud as anybody, because Autodesk’s ban on software transfers is an unconscionable restriction and deserves to die. But that’s not what this decision means. There are specific and paradoxical circumstances here, which allowed Vernor to win this case despite being morally wrong in my view, but will not benefit legitimate software users.

Vernor won (for now, and in one jurisdiction) because the court found he was not a party to the EULA. He didn’t read it, he didn’t click on anything to indicate his agreement to it, nothing. He just bought a bunch of books and discs and wanted to sell them on eBay. The fact that the item being sold is a remnant from software that had already been upgraded was not considered relevant. Neither was the fact that Autodesk is not obliged to provide the buyer of the discs with the codes they will need to make the software work. The upshot is that this decision will allow a small number of people to buy and sell useless discs. What about the buyers of those discs who may not know they are useless until too late? Caveat emptor, I guess. Some other court can sort out that mess.

I agree with Ralph Grabowski that “software should be no different than any other consumer good: buy it, use it, resell it, or toss it”. I’d love to see Autodesk and other vendors forced to support a legitimate used software resale market (as they once did in pre-eBay days), but this decision won’t make that happen. It won’t help customers at all. If your firm has shrunk a bit and you have some spare licenses, you still can’t sell them because you are a party to the EULA (probably, although this area is still a bit fuzzy). But take heart! If you go bust, your creditors may be able to slip any discs left over from your upgrade history into a garage sale and hope that Mr. Vernor drops by. Mr. Vernor will be allowed to sell them, and the new buyers will be allowed to put them on their shelves and look at them.

Is that really a win for customers? I don’t think so.

Should you read software license agreements?

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Evan Yares has raised an interesting point about the insolvency clause in Autodesk’s End User License Agreement. Please read the whole thing, but the gist is that there’s a clause where if you get into financial difficulties, Autodesk will do its bit to help you out in times of trouble by taking away your software licenses.

This clause extends as far as making an arrangement with your creditors, which is a common enough phrase but can mean several things and isn’t defined within the agreement. So, if your cash flow is a bit tight and you have to ask your phone company for another month to pay your bill, you’ll be sure to stop using all your Autodesk software, won’t you? Never use it again, because otherwise you’ll be a thief.

OK, maybe that’s a bit extreme, but I’m sure it could be interpreted that way by an aggressive and/or inventive lawyer, and Autodesk doesn’t appear to be short of those. Who knows? Why would Autodesk put that kind of thing in its EULAs if there is no intention of ever using it?

That’s an interesting aside, but it’s not my main point. Autodesk EULAs have traditionally contained unreasonable, unconscionable and arguably unenforceable clauses, so there’s nothing particularly remarkable there. My main point relates to reading EULAs in general, not just Autodesk’s. As a general rule, should you do it?

Looking at the polls I’ve done on this subject, lots of you don’t read them. In fact, over two thirds of poll respondents either never read them, or rarely do so. It would be interesting to find the reasons behind that. Do you not have the time? Is it pointless because it’s all legal gobbledygook? Do you trust the software maker to be reasonable? Do you consider click-throughs to be unenforceable? Or are there other reasons? Please let me know. I may do another poll once I have a reasonable set of choices to offer up.

There’s an argument that can be made that you are actually better off not reading these “agreements”. According to this argument, if you don’t read it, how can you have agreed to it? There’s no meeting of the minds. Better still; get somebody outside your company to do the installation for you. That person has no authority to bind your company to anything, so no agreement exists.

Or does it? Is this a valid argument? Until there’s either well-established case law or unambiguous legislation, it’s anybody’s guess. Even when the answer is known, it’s highly likely that the answer will vary depending on your location. Even if the agreement states that it is based on California law, what if the local law establishes that no obligation exists that binds you to that agreement?

What’s the best thing to do? I honestly don’t know. You could do an R. Paul Waddington and make a public repudiation of any obligation to abide by Autodesk’s EULAs, and continue to use the software. You could do what I suspect a large number of people do, which is the same kind of repudiation, but a silent one. You could attempt to negotiate a modified EULA with the software vendor, but I don’t fancy your chances. You could stop using software with unreasonable EULAs, but what kind of choice is that? It may not be possible at all for your business. Finally, you could just put up and shut up, either agreeing unreservedly to accept whatever is in the EULA, or crossing your fingers in the hope that the software vendor will do the right thing.

What choice have you made, and why?

Vernor v Autodesk – why I think Autodesk is right

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Well, there’s a statement I wasn’t expecting to make. Let me preface these comments with a disclaimer. I have no legal qualifications whatsoever. I make no claims of knowing who is legally right in this David v. Goliath legal battle; that’s for the courts to decide. When I make the statement that I think Autodesk is right, I don’t mean legally right, I mean morally right.

I have been following this fight with interest, but only in a half-baked way, third-hand via commentators (like myself, now). Based on my skimming of that commentary, my natural inclination to support the underdog, and my general dislike of of Autodesk’s previous and current legal adventures, I had been of the firm but privately held opinion that Vernor was right and Autodesk was wrong.

Today, after noting that new filings had been made, I had a proper look at some (not all) of the actual court documents themselves (thanks to Owen Wengerd’s CAD/Court), and surprised myself by coming to quite the opposite conclusion. I am now convinced that I was totally wrong.*

Until today, I was hoping that the court would support Vernor’s assertion that the First Sale doctrine applies in this case. Why? Because I feel that Autodesk is morally wrong in attempting to prevent the transfer of its software from one party to another.** At one time, Autodesk allowed AutoCAD to be resold (despite the EULA of the time saying that it wasn’t allowed) and indeed actively supported the transfer process. I felt at the time that Autodesk’s introduction of this restriction of a customer’s ability to resell AutoCAD was morally wrong. I still feel that way.

I also feel Autodesk is morally wrong in geographically restricting the sale of its software, and in several other areas of its EULA. I would be quite happy to have a court find that Autodesk is legally wrong in those areas, too. Despite that, I feel that it would be A Bad Thing if Vernor won in this case.

Why? Because Vernor was selling software that effectively didn’t exist. He was selling used copies of Release 14, when those copies had already been upgraded to AutoCAD 2000. To me, that’s clearly morally wrong.*** If the court finds that First Sale applies here, then that opens the floodgates to allow anyone to sell old copies of any software that has been upgraded, and keep using the new stuff. I really don’t think that would be good for anyone.

Those of you who have been upgrading AutoCAD for the last 25 years, I hope you held on to all your old copies, because you could be sitting on a gold mine. Of course, unless the court is going to compel Autodesk to acknowledge all these new “owners” of AutoCAD and support them with the various magic numbers required to keep them alive, there are going to be a lot of disappointed buyers around, the word will get around, and the bottom will quickly drop out of the market.

* This is not a first, I assure you.

** It has been stated elsewhere that Autodesk can actually be persuaded to allow the transfer of its software outside the usual restricted areas of merged companies, deceased estates and so on. This may be so, but it’s not something I would rely on.

*** This is a quite different moral proposition from somebody continuing to use an old version of software after upgrading, alongside the new version, on the same computer. That’s something I find entirely morally acceptable, whatever any EULA may stipulate.

blog nauseam Terms of Use

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It seems that not only EULAs but also web sites must have onerous, unconscionable, ridiculously restrictive and utterly unenforceable sets of rules these days. I don’t want to miss out on the fun, so I have added mine to this site. There’s a link at the top of the page that points here:

http://www.blog.cadnauseam.com/terms-of-use/

Enjoy.

Leech marketing by IMSI – Part 2 – A/CAD

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The IMSI free CAD product that it is putting up against AutoCAD LT has a very interesting name: A/CAD LT*. Does A/CAD sound familiar to anyone? I vaguely seem to remember some other CAD product with a very similar name. Hmm, let me think, it has a main program file called acad.exe and many other support files called acad.something, it has had its name abbreviated to ACAD by its users for decades… No, sorry, the name somehow eludes me.

I’m not a trademark lawyer (or any other sort), but here’s what I can tell from a quick glance at the USPTO site. It appears that Autodesk had ACAD registered as a trademark in 1986 with a first use in 1983, and that the registration was abandoned in 1987. It was registered again in 1988 and abandoned again in 1992. That may be an unfortunate lapse. I wonder what else may have slipped through the cracks?

Now there is an ACAD logo design registered to a certain ACAD Corporation of California (possibly unrelated), and a trademark application from IMSI, not yet approved. IMSI owns, and is actively using, the acadnow.com domain name. The IMSI advertising materials show the word A/CAD with a little TM after it, which indicates that they are claiming that they own the trademark, but it is not registered. The A/CAD packaging is, to me, rather too close to the style of the AutoCAD packaging. There’s even a Big Red A. Oh, sorry, it’s actually a big white A on a red background. That makes all the difference.

Given Autodesk’s history in using the courts to chase quarry as elusive as an unregisterable file extension that it never actually owned, and having a legal prod at competitors who dare to use orange rectangles in their marketing, what do you think are the chances that Autodesk’s hyperactive legal department is going to let this one slip by without a fight?

IMSI, if you’re going to compete, great. All power to you. But compete, don’t leech; it looks awful. Tacky, tacky, tacky.

While you might get some cheap** publicity (including from me), I’m afraid you miss out on the underdog sympathy factor when it looks like you’re actively trying to get sued. Finally, did you consider what happens when somebody tries to find your A/CAD product using Google? Didn’t think so.

* A/CAD LT Express is the full name of the currently marketed version.
** Excluding legal fees.

Ways in which the crash could be good for Autodesk

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No, I don’t mean the sort of crash where AutoCAD stops working. The current financial crisis, I mean. I must preface these comments with a disclaimer. I have no qualifications in finance and make no claim of financial expertise. These are purely a layman’s thoughts. Don’t buy or sell stock based on what I have to say here. Toss a coin instead.

So, what on earth am I thinking? I’m thinking that although Autodesk (along with most other companies) will undoubtedly suffer greatly from the coming economic conditions, it’s not all dark cloud. Here are some potential silver linings.

Autodesk is cashed up. If its competitors aren’t all carrying enough fat to survive the lean times, Autodesk could come out of the post-crash period with greater market share than before. Of course, this is contingent on Autodesk having products, customer service and a customer-friendly outlook that are attractive enough to win over any orphans. Some serious reversal of neglect in these areas will be needed, which involves spending more, not less. So it really is a very good thing that Autodesk has large wads of your money lying around for use in times like this.

Companies with useful technology might become available cheaply. Some smart acquisitions could give Autodesk products some advantages over the competition. (Edit – Between writing this post and publishing it, I see Autodesk has just done exactly that with Softimage).

Autodesk can buy its own shares back while they are cheap. If it needs cash in a few years, it can sell them again at what will undoubtedly be much higher prices.

I don’t really care whether Autodesk does any of the above, but I do care about the next one. Autodesk has been living in a Soviet Russia-style fool’s paradise for years with its yearly product cycles. Practically everybody who knows anything about the software knows that the 12-month cycle is unsustainable because of the significant harm that it is inflicting on the products. But it has been an undoubted financial success, so far. Autodesk is addicted to it, but like any unhealthy addiction it will ultimately be fatal. What to do?

This financial crisis represents a get-out-of-jail-free card for the Autodesk board. Announce the long-overdue death of the annual cycle now, while Autodesk shares are already undervalued. Any negative reaction from a share market that doesn’t know or care about product quality will be hard to identify as having a specific cause while the share price is being flushed down the toilet anyway. Announce it in conjunction with something that will save Autodesk money, like abandoning some of its sillier legal adventures, and it will be even harder for shareholders to apportion blame to any particular measure. In a month or two, nobody will be able to identify specific causes of the stock being at whatever level it happens to be at that time.

Such a great opportunity for Autodesk break out of the yearly rut and rescue its products from a sad slide into semi-permanent sub-mediocrity is unlikely to be repeated any time soon. It’s a nettle; it’s going to sting, but it must be grasped.

Can Carl Bass be Autodesk’s Gorbachev?

cad nauseam

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