blog nauseam » Licensing

Vernor v. Autodesk – right decision, wrong reason

Steve Johnson — Wed, 15 Sep 2010 09:16:34 +0000

As I have stated before, I believe Autodesk to be in the right (morally, not legally) in its battle to prevent Vernor’s resale of old, upgraded copies of Release 14. In the latest installment, Autodesk has won its appeal to the 9th Circuit Court of Appeals. There will be be further legal moves yet, but Vernor’s chances of winning this case are now more slender. So the right side has won (at this stage). I should be happy, right?

Wrong. Although I think the latest court to look at this has picked the right side, it has done so for entirely the wrong reasons. (Again, morally wrong, not legally. I have no qualifications on legal matters, but I can spot an injustice a mile off). In a diabolical, dangerous, far-reaching decision, it has concluded that the doctrine of First Sale does not exist at all for products where the copyright owner merely claims not to sell its products, but rather to license them.

So all those programs, games, maybe even CDs, DVDs, books etc. you have at home and thought you owned? How about that laptop with its pre-installed Windows? Or that iThing with its iOs? If you’re in the jurisdiction covered by this ruling, you quite possibly now don’t own them at all. Check out the fine print on each of those items; if it includes the magic word “license”, then you may not legally own it, or be allowed to sell it if you no longer need it. If you’re not outraged by this attack on your private property rights, you should be.

What’s more, the Court ruling explicitly rewards companies for making the “license” terms as ridiculously restrictive as they can:

We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.

One of the Autodesk EULA’s more unconscionable and unenforceable restrictions, that of only being able to use the software within a certain geographical region, wasn’t used to point out the unreasonableness of Autodesk’s claimed power over its customers. Instead, it was actually used by the court to help justify its decision!

Amazingly, this ludicrous outcome wasn’t decided in ignorance. The court carefully considered the effects this decision would likely have, but apparently for reasons of legal nicety, decided to go ahead anyway. Common sense and justice be damned, a convoluted and narrow interpretation of partially-relevant previous decisions just had to rule the day.

We can only hope that this case is reviewed and overthrown (again). While such a revised outcome might be unfortunate in terms of failing to right a wrong (Vernor’s sale of already-upgraded software), that would be much preferable to the terrible damage that the 9th Circuit’s decision has inflicted on the people it is supposed to serve. I’m only glad I’m not one of those people.

Other commentary:

EFF: “Magic Words” Trump User Rights: Ninth Circuit Ruling in Vernor v. Autodesk

Wired: Guess What, You Don’t Own That Software You Bought

Techdirt: Appeals Court Destroys First Sale; You Don’t Own Your Software Anymore

ars technica: No, you don’t own it: Court upholds EULAs, threatens digital resale

Lawgarithms: In Autodesk case, 9th Circuit missed better reason to bar resales

Public Citizen: Ninth Circuit says consumers may not own their software

Hotfix available for Raster Design licensing issue

Steve Johnson — Tue, 23 Jun 2009 03:09:02 +0000

Thanks to Brian and Rick for pointing out the availability of a hotfix for Raster Design 2010′s standalone/network license incompatibility. As a bonus, it also fixes some Raster Design / Civil 3D stability issues.

The hotfix is available here, and as always with patches, fixes, service packs and updates, read the readme first.

Note that although this fixes the most common scenario where a network Raster Design needs to work on a standalone AutoCAD, it does not fix the opposite scenario. So if you have a bunch of network licensed AutoCAD variants available to you and you have a standalone license of Raster Design because you’re the only person in the office who needs it, you’re still out of luck. If you’re in such a position, I think you have a very strong case for a no-cost change from standalone to network licensing for Raster Design. If you ask for this and are refused, let me know and I’ll let everyone else know.

Network/standalone clash is confined to Raster Design

Steve Johnson — Fri, 01 May 2009 00:09:21 +0000

Autodesk has been in touch to confirm that the failure to allow a mixed network/standalone environment is confined to Raster Design. I haven’t yet tested this myself, but I’ve been told unequivocally that you can mix standalone and network license models for the major products.

Here is the official Autodesk response to the issue:

We are very aware of the issue currently relating to the co-existence of an AutoCAD SLM (stand-alone license) and AutoCAD Raster Design NLM (network license) configuration. This was not an intentional “change of licensing policy” as expressed in some blog posts this week, but an unfortunate side effect of updating our licensing technology for SLM (stand-alone) seats to be in sync with our NLM seats for all AutoCAD-based products. We can only apologize for this new behavior experienced by customers upgrade to 2010 version products.

We are currently pursuing a couple of options to rectify this situation. We do intend to provide a solution in the very near term and I hope you will join me in helping mitigate the frustrations expressed in various blogs this week.

We have also heard of speculations that this issue also impacts side-by-side installations of different AutoCAD desktops. This is not the case. Both software development and QA have successfully installed many different AutoCAD-based 2010 desktops side-by-side in mixed SLM and NLM configurations without any issues.

Autodesk plans to fix Raster Design licensing SNAFU

Steve Johnson — Sun, 26 Apr 2009 15:00:29 +0000

I have been in touch with various people at Autodesk about Raster Design 2010′s failure to work in a mixed standalone/network environment. These people have all been suitably apologetic, they assure me it wasn’t a deliberate move on Autodesk’s part, and that moves are afoot to provide a solution fairly soon. For example:

Our intention was never to cause such inconvenience for our Raster customers with the licensing change. We are currently working on a solution and hope to have more information in the coming weeks.

And:

…we are very aware of the issue currently relating to the co-existence of an AutoCAD SLM and Raster Design NLM. This was not an intentional “change of licensing policy”, but an unfortunate side effect of updating our licensing technology for SLM (stand-alone) seats to be in sync with our NLM seats for all AutoCAD-based products. I can only apologize for this new behavior experienced by customers upgrade to 2010 version products.

We are currently pursuing a couple of options to rectify this situation. We do intend to provide a solution (fix if you will) in the very near term…

The jury is still out about whether this problem affects only Raster Design or is a general problem that prevents a mixed standalone/network environment of AutoCAD and vertical products. If it’s a general problem, it would be an unmitigated disaster for the 2010 product range. I’m getting mixed messages about this from the Autodesk people, but I don’t want to make an issue of that because the people involved are trying to help by providing what information they have as quickly as possible. As soon as I have accurate information available to me I will pass it on.

I know of at least one person who is unable to get a mixed AutoCAD and Revit MEP environment working. If you have tried to get AutoCAD 2010 and another 2010 vertical product working side by side where one is standalone and the other network, please add your experiences to the comments here.

Should you read software license agreements?

Steve Johnson — Wed, 22 Apr 2009 09:23:21 +0000

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?

Autodesk messes up Raster Design 2010 licensing

Steve Johnson — Mon, 20 Apr 2009 07:40:55 +0000

I was horrified to learn (in this Autodesk Discussion Group thread) that Autodesk has changed the rules as far as the way Raster Design licenses are handled. It’s quite possible that Autodesk has also done this with other products that I’m not yet aware of. If so, please comment and let me know.

If you’re not familiar with Raster Design, it’s an Autodesk add-on that adds raster handling capabilities to AutoCAD and AutoCAD-based products. The change that has been introduced is that the licensing method of AutoCAD and Raster Design now has to match. That is, if your AutoCAD is standalone, the network version of Raster Design won’t run on it, and vice versa.

Why does this matter? Let’s say you’re a CAD Manager in this scenario:

You have a hundred AutoCAD users, half of which are full-time users with standalone licenses and the other half who are mainly part-time users with network licenses. Let’s say that some of those users (of both types) have a very occasional need to use the features in Raster Design. You bought one network license of the product a few releases ago and have everything on Subscription, just the way Autodesk wants it. So far, you’ve been able to provide the Raster Design option to all of your users. Only one user at a time can use it, but as use of the product is pretty rare, this hasn’t been a problem to date. If demand increased, other licenses could be added as needed.

Now, with Raster Design 2010, this is no longer possible. Your network license will not be available to your standalone users. You have the following options:

Buy 50 standalone licenses of Raster Design 2010 for your standalone AutoCAD 2010 users, i.e. spend a huge amount of money on software that will go unused more than 99% of the time. Oh, and commit more money to maintaining that software with Subscription.
Convert all your AutoCAD licenses from standalone to network. This is not a free service. Last time I looked, it cost about 20% of the retail price of a new seat. That means you will need to waste a huge amount of money changing your AutoCAD licenses to work in a way that is an inferior match with the way you do business. If you’ve already provided AutoCAD 2010 to your standalone users, you’ll need to uninstall them all and reinstall them as network versions. Won’t that be fun?
Upgrade neither AutoCAD or Raster Design to 2010 and stick with the release you’ve got, i.e. waste a large amount of pre-paid Subscription money.
Do without Raster Design altogether, i.e. waste the money you’ve spent on the product purchase and Subscription. In this case, you’ll probably need to put some time, effort and further expenditure into investigating and buying third-party alternatives that have a sane network licensing policy. Who said Autodesk is hard on its third-party developers? Look, it’s actively drumming up business for them!

Wow. This, in an environment where people are looking to save money. It doesn’t matter what efforts the Raster Design developers have put into improving the product. Raster Design could do twice as much stuff, twice as well, in half the time, while looking prettier and playing a tune. For many customers, this licensing decision has rendered the product unusable, so none of that stuff will matter. Why did you bother, people?

It’s such a spectacularly stupid move that it’s hard to comprehend that anybody within Autodesk could even seriously contemplate the idea, let alone allow it to get through to the finished product. Here are my top ten reasons why this is dumb even from Autodesk’s point of view:

It adds another unnecessary pain point to CAD Managers. These are generally the people who are currently working out whether to upgrade, pay for Subscription, or stick with what they have and pay Autodesk nothing, so they are the people Autodesk should be most careful to avoid hurting.
It will discourage some people from using the current release of the products.
It will discourage other people from keeping their Subscription current.
It will encourage some customers to ask for their money back for Raster Design, Subscription or both. If this is refused, it could even lead to another bad-publicity court case.
It is a negative example people will use when deciding whether Autodesk can be trusted to do the right thing by its customers, once they are all tied into Subscription.
It will discourage people who may have been interested in Raster Design from buying it.
It will discourage people from investing in any other Autodesk add-on software in future.
It will increase the perception that Autodesk doesn’t care about its customers and is always looking out for sneaky cash grabs.
It will increase the perception that Autodesk is clueless about how its products are used in the real world.
It distracts from the generally positive news about the AutoCAD 2010 product family. I’ve got some nice things to say about AutoCAD 2010, but I’m writing this instead.

Autodesk, this is a particularly nasty anti-customer move, and that’s the polite way of putting it. I stongly advise you to reverse this decision. I don’t care if you’ve made it technically difficult for yourself to do so; just do it. Please.

Disclosure: the above scenario is not a million miles from the situation in which I find myself. So it’s something that directly affects me. But it’s something so dumb and annoying that I’d still be ranting about it, even if that were not the case.

More on ODA, Autodesk and click-through agreements

Steve Johnson — Thu, 16 Apr 2009 02:48:02 +0000

Evan Yares has provided more information on the incident I mentioned in my last post. Here it is:

It was years ago. My guess was that the person who did it was just trying to spider the website pages, for marketing research, and didn’t realize he got all the libraries too.

In any event, I said hey you did this, they said no we didn’t, I produced download logs, they said there was no agreement and even if there was we hereby cancel it, I said if you want to see our libraries I’ll send ‘em to you no strings, they said no thanks, then I just let it drop. Of course, I’m paraphrasing.

I wasn’t going to get in a fight with Autodesk. Trying to trick them into joining the ODA would have been both futile and dumb. I’d been trying for years to get them to join (I was an optimist, once upon a time), and it caused no damage for Autodesk to be able to see the ODA libraries. There wasn’t anything in them that they didn’t know better than we did.

Don’t read too much into Autodesk’s belief in the enforceability of click-through agreements based on this incident. I knew the guy who downloaded the files, and knew that he didn’t have the authority to bind Autodesk to an ODA membership agreement (it would have taken at least a VP to do that.)

This is interesting for more than just the amusement factor; it raises a serious point about the enforceability of click-through agreements. In this case it was a web-based membership agreement, but I’m more interested in software license agreements.

In most cases, the person doing a software installation is unlikely to be a Vice President or higher. It’s quite possible that the installer doesn’t even work directly for the company that is supposedly agreeing to whatever terms may be hidden behind the “I Agree” button. In fact, that’s the situation I’m regularly faced with when I install software for a client. The client certainly doesn’t view the “agreement” and may not even know that it exists. The client hasn’t authorised me to negotiate a contract with anyone, only to get some software working. There’s no “meeting of the minds”. The software vendor may think that the client is bound up tight by the terms of the EULA; the client hasn’t agreed to anything and either doesn’t know the EULA exists or doesn’t consider it to have any validity.

Does it matter? Maybe not. It only really matters when one party or the other doesn’t do the right thing. Fortunately, I have honest clients and I’m confident that they will act in an ethical way on an ongoing basis. But will the software vendors do likewise? I don’t know.

Evan Yares, ODA, Autodesk and click-through agreements

Steve Johnson — Wed, 15 Apr 2009 07:44:15 +0000

I’ve always found it entertaining when the lawyers of CAD companies do their best to make their clients look like total jerks. The opening shots as presented by Evan Yares in his proposed ODA class-action lawsuit indicate that there is another rich source of recreational reading on its way. I’m sure it’s no fun for the lawyer-paying people involved, though.

You would think that Autodesk would be rubbing its corporate hands together at the prospect of the ODA being distracted like this. Or maybe not, if the bunfight throws up more little gems like this:

Autodesk had at least once gone to the ODA website, agreed to the click-through membership agreement, received their access password via email, downloaded each and every library on the ODA’s website, then denied they did it. (The ensuing conversation about this, between the ODA and Autodesk, was pretty interesting, to say the least.)

If that’s true (and I would welcome evidence from either party) it certainly puts an interesting slant on what Autodesk thinks about the enforceability of click-through agreements.

On a related subject, see the polls on the right. There has been one running for a while about whether you even read such “agreements”, and I’ve added two more. They ask if you feel morally and legally bound by the terms that lie under that “let me get on with the installation” button.

What is a reasonable amount of time to wait for license codes?

Steve Johnson — Fri, 17 Oct 2008 05:23:23 +0000

Software companies use a variety of differerent methods in their attempts to prevent piracy and restrict use of their software to legitimate paying customers. Yes, these attempts are generally futile. Yes, they can end up inconveniencing legitimate users and providing pirate users with advantages over paying customers. Yes, they add to development costs and detract from the main development aims. Despite all that, I still support the right of software companies to do this. Lots of companies spend money doing futile, counter-productive things; it’s their money, their software, their customer base, their choice.

That doesn’t mean we customers have to like it, and many of us don’t. Some of us happily accept it as part of the price of using our tools, some of us tolerate it with varying degrees of grace, and some of us fume about it but do it anyway because we have no choice. Beyond that point, there are those who won’t put up with it at all, and who find various ways around it.

Where a given user fits within that spectrum of views depends partly on that person’s personality, but also on the amount of inconvenience that the software throws up. I’ve started a new poll because I’m interested to discover what level of inconvenience people are prepared to put up with. What is a reasonable level of tolerance?

The poll question refers to a scenario where you have the need to use a piece of software, and before you can do so, you need to obtain codes. The question is not specific to AutoCAD or Autodesk, it applies to any software that needs magic numbers before it will work. Software often allows grace periods before a code is needed, but there are also circumstances where such grace does not apply, so for the sake of this poll please assume that you need the codes before you can get on with your job. How long would you be content to wait for the codes and still remain a satisfied customer?