It’s not too often that lawyers give away their work, but Gene Quinn of IPWatchdog.com is doing just that by providing some free sample confidentiality agreements. If you can afford to pay an attorney for simple agreements like this, more power to you; otherwise you may want to grab these free agreements while you can. There is of course a disclaimer, but thankfully it’s short and simple just like the agreements.
For AutoCAD 2011, Autodesk made relatively few changes in the EULA. They fixed the grammar error that was introduced in AutoCAD 2010, but they didn’t make any changes to the convoluted “License Grant” wording that was also added in AutoCAD 2010. ...
Tyler Ochoa (law professor and two time “Jeopardy!” champion) writes an interesting post about the 300th anniversary of the first copyright law, called the Statute of Anne. Referring to the motivation behind the original law, Ochoa says “Although the Stationers were chiefly concerned with restoring and perpetuating their monopoly, they framed their petition to Parliament in terms of justice for authors.” In many respects, not much has changed since 1710.
Everyone else is discussing all the cool new features in AutoCAD 2010, so I decided to have a look at what’s new in the EULA (End User License Agreement). I compared the AutoCAD 2010 EULA for US/Canada to the AutoCAD 2009 EULA. I won’t divulge the process I used to automate the comparison, because the odds are pretty good that I violated the EULA somewhere along the way, and I want plausible deniability. The first change I noticed is that the AutoCAD 2010 EULA contains more shouting. The 2009 EULA started out in a fairly mellow mixed case with a few shouts thrown in for effect, but the 2010 EULA dispenses with the lower case and launches right into a multi-paragraph avalanche of screaming block letters. Apparently nobody was listening, so they turned up the volume. Substantively, there are a number of very interesting changes. The following was added to the preamble: SOFTWARE OBTAINED FROM THIRD PARTIES THAT HAVE NOT BEEN AUTHORIZED OR ALLOWED BY AUTODESK, DIRECTLY OR INDIRECTLY, TO SUPPLY SOFTWARE IS LIKELY TO HAVE BEEN MADE AVAILABLE IN VIOLATION OF AUTODESK’S RIGHTS. IN SUCH AN EVENT, AUTODESK IS NOT OBLIGATED TO ISSUE AN ACTIVATION CODE OR OTHERWISE PERMIT YOU TO INSTALL OR USE THE SOFTWARE. Next time you’re eyeing that used copy of AutoCAD 2010 on eBay, be warned that Autodesk is not obligated to permit you to install or use the software. They don’t come right out and say that they won’t allow it, so maybe they won’t mind – but then what’s the point of including this clause? Tim Vernor won’t be very happy about this change. Moving along, I see that they added a definition for “Uninstall”, defining it as “to destroy or remove”. The definition of “User Documentation” was very slightly changed from “…after You acquire or Install the Software…” to “…when or after You acquire or Install the Software…”. Incidentally, did you know that Autodesk considers an AutoCAD reseller’s invoice to be “user documentation”? Rounding out changes in definitions is a change in the definition of “You”. Yes, Autodesk has redefined “You” whether “you” like it or not. I could go on and on about small wording changes, and while it would be interesting to contemplate why each change was made (and how many scheming lawyers it took to do it), we’d risk missing the forest for the trees. Section 2.1, “License Grant”, contains ominous new language. The following has been added: You may Access the application programming interfaces that may be included with or in the Software or otherwise available from Autodesk for use with the Software (“API’s”) to develop programs, modules, components or functionality that (i) are compatible with and are used and/or interfaced with the Software and (ii) contribute significant value-added functionality or enhancements to the Software (“API Modules”) provided You may Install and Access such API Modules solely on Computers where a licensed copy of the Software is also installed and further provided such Installation and Access is solely in connection with Your Installation and Access of the Software and solely for Your internal business needs. You may not redistribute all or any portion of an API Module. Read that again. That’s right, you may not write any “programs, modules, components, or functionality” unless they “contribute significant value-added functionality or enhancements” to AutoCAD. Furthermore, if you do manage to write a program that adds significant functionality, you may not redistribute all or any part of it. What are those guys smoking out there in California? Finally at the end of section 2.1, they changed “No license is granted under the terms of this Agreement if You did not lawfully acquire the Software” to “No license is granted under the terms of this Agreement if You did not lawfully acquire the Software from Autodesk or from a third party who has been permitted or authorized by Autodesk either directly or indirectly to supply the Software”. Take that Tim Vernor! In another nod to the Vernor case, section 2.3, “Upgrades”, adds a new requirement to “destroy all Autodesk Materials relating to the Previous Version or, upon request by Autodesk, return all such Autodesk Materials relating to the Previous Version to Autodesk or the company from which they were acquired”. This is important language that could persuade a court to view an AutoCAD purchase as a license instead of a sale, thereby giving Autodesk the power to control the secondary market. Interestingly, section 2.4, “Crossgrades”, requires that the previous software be uninstalled within 60 days, but has no requirement that it be destroyed. However, new language in section 2.7, “Termination”, which requires the software to be destroyed “upon termination of the license grant or this Agreement”, apparently covers both cases. A funny change in section 3.2.3, “Transfers”, appears to close a loophole. The AutoCAD 2009 EULA disallowed transfers to “any other person”; the AutoCAD 2010 EULA disallows transfers to “any other person or legal entity”. Considering a license transfer? Make sure it’s to an illegal entity! Section 4, “ALL RIGHTS RESERVED”, was rewritten. The rewrite introduced a grammatical error (“and You have not other rights”), but otherwise I don’t see that much changed. It still ends with the now familiar directive that “The Software and User Documentation are licensed, not sold." Finally, the infamous “audit clause” has been revised. Not the way you may have hoped, I’m sad to report. Luckily the change was a minor one that doesn’t make the clause any more overbearing than it already was. Isn’t change wonderful?
I want to consider software licensing practices in general, but with the specific facts and history in the Vernor vs. Autodesk lawsuit as a backdrop. In the Vernor case, Tim Vernor purchased several boxes of AutoCAD software, and never even read, let alone agreed to, the terms of the license agreement inside the box. When Vernor listed the AutoCAD software for sale on Ebay, Autodesk sent Ebay a notice that claimed Vernor’s auction violated Autodesk’s copyright. In order to benefit from the safe harbor provisions of the Digital Millennium Copyright Act (DMCA), Ebay was obligated to remove the auctions. Vernor responded by filing a lawsuit accusing Autodesk of making false copyright violation claims. Additional facts have since come to light. For one, we’ve learned that the AutoCAD software that Vernor purchased had been previously upgraded to a newer version. Vernor did not know this when he purchased the software; and in any case, it’s not clear that this fact has any bearing on the outcome of the suit. Given this set of facts, let’s analyze the Vernor case not from a purely legal perspective, but from a more abstract “moral” perspective. After all, society is the ultimate arbitrator of what is wrong and what is right with respect to our laws. We ultimately determine whether laws are fair by whether we follow them willingly (and whether we put pressure on our legislatures to change them). Steve Johnson opines that Autodesk is morally right in the Vernor case, because the software Vernor purchased was “tainted” due to having been upgraded by the original owner. In Steve’s view… [see Steve’s comment below where he chides me for ascribing this view to him - O.W.] Presumably, one who holds this view sees Vernor’s original purchase as akin to someone purchasing stolen goods. With stolen goods, the law (and hopefully our moral compass) recognizes that the purchaser of the stolen goods has no legal right to them. Autodesk offered the original owner a discounted price for a newer version of AutoCAD in exchange for a promise to destroy the older version. The original owner reneged on its promise to destroy the old version, and sold it to an unwitting buyer instead. It follows that both Autodesk and Tim Vernor were treated unfairly by the company that sold the AutoCAD software to Vernor. Despite the company’s history of using pirated software, Autodesk gave them the benefit of the doubt when selling them a discounted upgrade. Vernor, by all accounts, had no idea and no way of knowing that the software he purchased had been previously upgraded. This is a recipe for disaster. Unfortunately, this sort of disaster is all too common. In many cases, software users simply don’t read license agreements. If they do read license agreements, they don’t understand them. After all, most of us are not lawyers, and we can’t reasonably be expected to hire a lawyer to evaluate the license agreements of every software product we use. How then can we be expected to follow them exactly and without fail? Consider that it’s entirely possible that the company from which Vernor bought his AutoCAD software had no idea that they had agreed to destroy the upgraded AutoCAD software. At least from a moral perspective, we can have some sympathy for the company if they honestly had no idea they were violating any agreements when they sold the software to Vernor. Could Autodesk have required the upgraded AutoCAD software to be returned, or required certification by an independent “software recycler” that it had been destroyed? Sure they could have. In fact, such requirements did exist in the early days of software license agreements. Had Autodesk done so, the Vernor court would probably have concluded that AutoCAD was licensed, not sold. Why even require the old version to be destroyed when upgrading? If we stop using the old version, why shouldn’t we be allowed to sell it at market value? Doesn’t recycling old software make just as much sense as recycling old tires? We have been conditioned to believe that discounted upgrades are good for us, but are they really? Would we accept a legal regime under which tire manufacturers could force us to destroy our old tires as part of the new tire purchase agreement? Oh, you say, that comparison isn’t valid because tires eventually wear out of their own accord, whereas old software continues working forever! First of all, old software doesn’t continue working forever. How many people still use VisiCalc? Furthermore, what would this line of reasoning conclude about potential tires of the future that last forever? We’d have to start licensing tires instead of purchasing them! What would happen if software vendors could not legally prevent “used” software from being resold on the open market, no matter how it was purchased or upgraded? For one, it would increase competition, because new versions of software would be competing not only against software from other vendors, but also against older versions of itself. In a world where software is priced based on what the market will bear, the net effect would be lower prices and higher quality (not to mention less frequent “upgrades”) for all software. I think the Vernor case is just one example illustrating how the current software licensing system has sprung a leak, and is in need of repair. Can it be patched, or does it need to be replaced? Can the bleeding be stopped at the ankle, or should it be stopped it at the neck? This is a classical case of the Petcock Problem. Software industry advocates like the Business Software Alliance (BSA) proclaim that the solution is educating consumers. Education may be important, but I think that “educating consumers” should not be left to an industry alliance. I have some ideas about how the system can be reformed, but I think we have to start by recognizing that there’s a problem.
I’m a firm supporter of intellectual property rights. I fully support the rights of software publishers to own and profit from their creative work. I make my living as both a consumer of software and a publisher of software, so my views on software licensing reflect what I consider to be a healthy symbiosis between producers and consumers. Intellectual property laws are (or should be) designed to protect this symbiotic relationship for the public good. The patent system is designed not to protect patent owners from pirates, but to promote inventions and improvements on previous inventions that benefit the public. The fact that patent laws do help to protect patent owners from pirates is merely a side effect of the underlying goal of promoting the public interest. We, the public, grant exclusive rights to patent owners for a specific time in exchange for them making public the details of their invention. Innovative inventors can thus build on a body of previously published inventions rather than starting from scratch. This system of “open source” innovation speeds the evolution of technology, and everybody benefits from it. Copyright laws must be viewed in the same light. Copyright laws are designed to promote and enhance the public good by encouraging the production and publication of creative works. In exchange for giving copyright owners certain rights for a certain period of time, the public gets to enjoy and build upon a body of creative work. Some argue that the benefit of copyright protection provides a financial incentive to create the works in the first place, and that without such an incentive the works would never be produced at all. While this is undoubtedly true, consider that there are other ways to provide financial incentives (by providing government grants, for example), so I think it’s important to view this aspect of copyright protection as a consequence of the goal to promote the public interest, not as a goal in and of itself. Copyright laws have long recognized a need to prevent copyrights from being abused by providing exceptions to the protection they afford to publishers. The Fair Use doctrine is the most common such exception in US copyright law. The First Sale doctrine (or “exhaustion rule” in some jurisdictions) is another example of a limitation on copyrights. These exceptions and limitations evolved in response to attempts by copyright owners to abuse copyrights in a way that contravened their purpose of promoting the public interest. Software licenses are a relatively new phenomenon, but they rely on very old law: contract law. It is important to understand that a software license agreement is a contract. The commercial software publisher agrees to give us limited and conditional copy rights and authorizes us to use the software in exchange for a fee. If the license agreement that we agreed to authorizes us to install and use the software on one computer, but we install it on ten computers, then we are violating both contract and copyright law (because we copied the software without permission). If the license agreement that we agreed to forbids us to resell the software to someone else, but we decide not to use the software ourselves and sell it anyway, we are violating only contract law (because we made no unauthorized copies). There are several contract law issues typically encountered with software license agreements. First, typical commercial software license agreements suffer from their unilateral nature. The contract is drawn up by the publisher with no negotiation or input from the consumer. Some question whether these are valid contracts in the first place, because they lack the “meeting of the minds” element that some judicial interpretations of contract law require. Second, software license agreements are not usually consummated until after the sale, when the software is finally installed. We purchase the software, essentially committing to our side of the bargain before we even know the terms of the contract to which we must eventually agree in order to use the software. This is inherently unfair, and there are still many unsettled questions about whether or not such a contract can ever be equitable and enforceable. If you’ve been following the Vernor vs. Autodesk lawsuit, you’ll know that the US federal district court in that case ruled that AutoCAD software was sold, not licensed, and therefore subject to the First Sale Doctrine. The First Sale Doctrine says, in essence, that a publisher cannot contractually restrict the downstream resale or distribution of a copyrighted work beyond the “first sale”. The court, at least in its initial ruling, rejected Autodesk’s argument that AutoCAD was licensed, and therefore exempt from the First Sale doctrine. It should be noted that the Vernor lawsuit is far from over, and this first sale decision could well change before the dust settles. The courts will eventually reach a final decision in the specific case of Vernor vs. Autodesk, but why was this lawsuit even necessary in the first place? It’s difficult to envision any outcome in which every injury is rectified. It could even be argued that everybody loses, no matter the outcome. And this is just one case in one jurisdiction. In the end, the final result of the Vernor case may not have much impact on how software is sold. It ultimately comes down to us, the union of consumers, to decide what kind of system we want. Unfortunately, right now we’re doing the software limbo while we wait faithfully for the next service pack. I think that we need more than a service pack. A system restore might be in order.
Bruce Schneier argues that data is the pollution of the information age, and “just as 100 years ago people ignored pollution in our rush to build the Industrial Age, today we’re ignoring data in our rush to build the Information Age.” ...
Many years ago, I worked for the small town where I grew up. My title was Street Commissioner. This is a very small town, and I was a part time employee with one helper. Basically, I was the guy what fixed things. We had a very old network of water pipes that supplied water from several wells. The water system leaked in many places. Occasionally, a small leak turned into a big leak, and something had to be done about it. You might think that the first response to a big water leak would be to close the water valves in order to isolate the leak and prevent the loss of valuable water. Not so fast! First of all, in an interconnected network that had been upgraded and patched by piecework for many decades, it wasn’t always possible for small localized segments to be isolated, and turning off the water for a large area would inevitably lead to discord. Second, closing even a single valve caused pressures throughout the system to change. Any pressure change anywhere in the system had the potential to cause new failures at weak points, which would just compound the problem. Furthermore, at some point repairs could be counterproductive and completely replacing parts of the network would be the best option. This would require time for the town council to approve the funds, and for contractors to be hired, and for the work to be scheduled and completed – all while the leaking water is causing collateral damage to the roadway and inconveniencing the affected residents with low water pressure. Eventually the big leak had to be repaired, and the water had to be turned off somewhere before the repair could be completed. The decision about where and how to accomplish this was not a simple decision, due to the competing factors involved, and the practical realities a small town is faced with. I call this problem the Petcock Problem. Imagine petcock valves scattered throughout a network of pipes. I call this the Petcock Problem because petcock valves typically have three positions, analogous to the notion of closing, opening, or redirecting connections on the network in order to isolate a fault. The Petcock Problem would apply in many situations involving complex networks, such as when a tree knocks down a power line or when an internet router dies. Sometimes the best solution is to isolate the fault to the most localized part of the network possible, thereby inconveniencing the least number of people at the expense of putting the larger network at greater risk of a much larger catastrophe. Sometimes the best solution is to shut down the entire network temporarily, thereby inconveniencing everybody that relies on the network, but removing any risk of further degradation while repairs are completed. Most of the time the best solution is somewhere in between these extremes. As the network ages and faults become more commonplace, at some point the best solution is to scrap the entire network and build a new one. This is the Petcock Problem, or “How do you stop the bleeding?”. The solution involves balancing several variables, some of which are known quantities, some of which are wild guesses, and some of which are potentially very chaotic (in that a small change in value could have an unpredictable impact on the outcome). [Disclaimer: I’m sure that the study of network topologies has its own terms of art and well researched algorithms for describing and solving these types of problems. I’m not claiming to have some new revelation about networks here. This is just my own little custom worldview.] In a future post I will explain how the Petcock Problem applies to something as diverse as the Vernor lawsuit.
The increased sharing of electronic CAD data (ala BIM) holds a lot of promise, but it also exposes companies and individuals to additional liability and risk. This additional risk is coming into focus more and more as actual cases of costly legal battles confront engineers and architects. The June 2008 AUGI wishlist results contain “Design File Locking” as the top wish by a substantial margin, and Shaan Hurley lists it as number 3 in the AU 2008 AutoCAD wish list. Clearly, interest in file and IP security has been growing steadily. As demand for IP security grows, there are sure to be snake oil security vendors trying to cash in on it. I received a spam email a few days ago from SafeNet, Inc. promising “a cost-effective and easy to integrate solution that provides reliable and effective security through the use of digital signatures.” Whenever I see such statements with a long string of buzzwords, my snake oil alarm goes on alert. Digital signatures are for authentication and establishing trust – they cannot and do not provide “reliable and effective security”, although I suppose they could be used by a system that does. In the last year or two, a number of companies have claimed to market software that “secures” AutoCAD DWG files. When I see such a claim, it invariably refers to software that creates an anonymous unequally scaled MINSERT entity. These can be created or “exploded” with a few lines of AutoLISP code. Frequently these companies claim to “encrypt” the drawing, which may sound sexy, but is an outright lie. If this is a level of “security” that meets your needs, at least use one of the many free versions posted throughout the internet (DETER.VLX from DotSoft is one I know of). There are solutions, but they always require changes in the workflow process that involve difficult tradeoffs and careful evaluation of what is technically feasible and practical versus the costs of implementing the changes. There is no such thing as installing a single piece of software to instantly solve the problem. If you are looking for ways to protect intellectual property in your drawing files, don’t be fooled by snake oil security vendors. Disclaimer: One of my hats is the president of CADLock, Inc., makers of CADVault for AutoCAD.
Did you ever wonder what press release writers do in their spare time? Given Autodesk's recent trademark litigation with SolidWorks and related efforts by Autodesk to trademark "DWG", and given the fact that US Patent and Trademark Office (USPTO) trademark examiners are known to use Wikipedia during their research, it doesn't take an evil genius to realize that a little subversive editing here and there might be helpful to the corporate cause. So, I decided to use Wikiscanner to go spelunking through the labyrinth of Wikipedia editing history to see if I could unearth any nuggets. ...
InfoWorld columnist and legendary consumer advocate Ed Foster died over the weekend. Ed was a tireless crusader for consumer rights in the digital age, and he will certainly be missed. For many years Ed has authored GripeLine, where he called companies and politicians to task for abusive anti-consumer practices. I’ve written before about how Ed exposed and publicised shamefully lopsided software license agreements, including Autodesk’s and Adobe’s. Recently, Ed commented about the May, 2008 Vernor decision (see my CAD/Court web site for more information about the Vernor case). It will be no easy task to fill Ed’s shoes. We can be certain, though, that his work must go on.
From the NewsFeed on my CAD/Court web site: “The court today issued an order denying Autodesk’s motion to dismiss the charges in the Vernor lawsuit. Normally such a denial is perfunctory and mundane, but in this ruling the court performs a breathtaking analysis of whether the AutoCAD software was a sale or a license, and reaches conclusions that, if not reversed, are certain to change the face of software sales in the USA. Technically, the scope of this order is limited to simply refusing to grant Autodesk’s motion to dismiss the lawsuit, but the implications of the judge’s analysis are almost stunning in their rejection of Autodesk’s legal claims. I’m sure you will be hearing much more about this order in the coming weeks, as the entire software industry will certainly take notice of this case."