Waddington's EULA Showdown

Are EULAs enforceable? R. Paul Waddington thinks not. We don't read end-user license agreements, and software companies don't enforce them, he says at his Caveat Emptor blog. And so:

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....I reject, in full, Autodesk’s Subscription and Licence Terms and Conditions and will continue to use Autodesk’s products.

He now awaits for a response from Autodesk. Given that the software company has for 1,200 days ignored his questions to them about their EULA's infamous Audit Clause, he expects their lawyers to ignore his ignoring.

Autodesk is in this bind:

• If it continues to ignore him, he wins, because he has proved the unenforceability of the EULA and 6 million other customers can follow suit.
• If it responds to him, he wins, because he finally gets what he wanted 3.5 years ago: a response.

Comments

[Sean Dotson]

"If it continues to ignore him, he wins, because he has proved the unenforceability of the EULA and 6 million other customers can follow suit."

Untrue. Just as a patent holder can choose whom they sure for patent violation Autodesk may continue to ignore Paul but still bring legal action against "Peter".

[Tony Tanzillo]

Outrageous terms and conditions like the 'audit' clause are merely another telltale sign of monopoly market power.

Organizations can only get licensees to accept terms and conditions like that, when their choices are practically limited.

Let's hope that after the elections this fall, the lights will go back on at the Anti-trust division.

[Kevin E.]

How many seats of Autodesk software have been sold since say 2006? How many surprise audits have been conducted in that time?

I don't like the fact that we in a way "rent" the software, but I have fallen off the deep end as far as Mr. Waddington.

He has said before that his fear is having Autodesk seize his computers to see if he is in compliance. I think that there are about 3,963 other things to worry about first in life before I get nervous about Autodesk raiding my business to check to see if my Autodesk licenses are in compliance.

Using software without a license is theft. Since Mr. Waddington does not agree to license terms AND uses the s/w, well, he's a thief.

The (un)fairness of the Adesk license terms is beside the point. AutoCAD is not Mr. Waddington's property. Don't like the terms - don't use it. Download IntelliCAD or whatever.

And that's all there is to it...

[R.Paul Waddington]

To Kevin E and anonymous;
Freedom of speech and action is great and very important and I do not shy away from the criticism my actions in this area have attracted, but lets correct a couple of points;

I am unaware of ever saying, “He has said before that his fear is having Autodesk seize his computers to see if he is in compliance.”, because I am not. As for being a “thief’, you can make that judgment, if you choose, but that will not be Autodesk’s concern or focus because they, and their dealers, have my money for both Subscriptions.

To you both and anybody else that wants to criticize me, go ahead and do so, but only after you have looked into these issues as I have done and you FULLY understand the position I have taken and why, and why it is important for us all to challenge clauses such as the audit clause. Research these issues thoroughly and send me or Ralph your informed opinion and comment, not your guesses, and I am sure it will be published. That will also mean others will benefit from your effort, knowledge and wisdom in preference to just reading your bollicking of me ;-)

An organization that has represented Autodesk in the past, and may still, have viewed my blog, maybe they would also like to read your informed views as well.

If I am wrong, prove me wrong; see if you can do what I have asked Autodesk to do.

[Henrik Vallgren]

If you buy an AutoCAD copy in Malmö, Sweden, you'll pay about $10 000 including taxes. Take a twenty mile trip across the water to Copenhagen, Denmark, and the license doesn't allow you to use the software there. Even reading the help file is prohibited!

Read the EULA paragraph 3.2.9 at http://www.evanyares.com/licensing/

[Evan Yares]

>>Using software without a license is theft.

Gosh, Mr. Anonymous, I'm glad you clarified that you don't know what you're talking about! Theft is the taking of someone's property, depriving them of its use. The term doesn't apply here. And there is no law in the United States that says one must have a license to use software. (As much as software vendors would like to see such a law.)

>>AutoCAD is not Mr. Waddington's property.

The copy of AutoCAD he bought is his copy. So says the US District judge in the case of Vernor v. Autodesk.

>>I think that there are about 3,963
>>other things to worry about first in
>>life before I get nervous about Autodesk
>>raiding my business to check to see if
>>my Autodesk licenses are in compliance.

As the old saying goes, just because you're paranoid, doesn't mean they're not out to get you. All Waddington wanted to know was what the deal was on the audit clause in the EULA. It was Autodesk that apparently thought it was a "good idea" to use a bush-league lawyer tell him to shut up.

>>Just as a patent holder can choose whom
>>they sue for patent violation Autodesk
>>may continue to ignore Paul but still
>>bring legal action against "Peter".

The body of law surrounding patents is different from that surrounding EULAs.
If Autodesk went after Waddington, they'd have to do it under California contract law, with the copyright issue used only to push the issue into federal district court. (Waddington purchased an authorized copy of the software. He's not a pirate.)

In a EULA action, Autodesk would have to contend with California's case law on unconscionability in contracts of adhesion. Given that Autodesk refused to answer Waddington's reasonable questions about the EULA, they might be on thin ground there.

Now, under contract law, Autodesk *does* have to worry about things such as latches, estoppel, acquiescence, and unclean hands. Those things make ignoring him a questionable tactic.

In any event, Autodesk ignores Waddington at their own peril. He is persistant, patient, and pissed off. He knows how to use the web, and he knows how to gain attention among government politicians and bureaucrats.

(And, after saying all this, you might think I'm picking on Autodesk. Nope. I just think they tripped up bad in dealing with this situation.)

"Untrue. Just as a patent holder can choose whom they sure for patent violation Autodesk may continue to ignore Paul but still bring legal action against "Peter"."(Sean Dotson, 16 Jun 2008)

Copyright Law and Trademark Law are different from Patent Law.

In order for them to make an exception without setting a precedent, they have to specifically tell him he is an exception. they cannot just ignore him and more on.

If they specifically voice an exception on his part, then they have maintained control over their work, and the enforcement aspect is still in tact. By ignoring him, they are neglecting to enforce their rights, and thus weaken their rights when it comes time to enforce against someone else.

That may not totaly eleminate their rights, but it does hurt their case if they have to go before a judge.