Copyright infringement risk management for Architechts
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Autodesk Licensing Audit Tips by Attorney Steve
If you are a real estate architect this blog is for you. There are a lot of small archtecture firms that use Autodesk Software. Autodesk is one of the most popular pieces of software for architects designing both residential and commecial projects. When you use their software, there is one thing that is clear - YOU NEED TO MAKE SURE ALL YOUR SOFTWARE IS PROPERLY LICENSED so that you do not face a BSA software audit. This blog explores this little known topic that you have probably not devoted much time to.
Okay, so here's the situation in a nutshell. You are a 1-20 member architect firm that handles a variety of real estate projects. You license Autodesk software because, well frankly, it is the best AutoCad software on the market with over 10 million users. You have tried to make sure you have all the proper licensing, and proof of receipts, but your practice is busy and you may or may not actually have a designated IT professional to assist you in tracking your software licenses, upgrades, and to make sure your company is complying with the End User Licensing Agreement ("EULA").
To make matters worse, some of your employees work at home, and they may install Autodesk software not only on your servers at work, but also on their home computers, laptops, and other computer devices. So as a company, how do you manage your software licensing and compliance issues. It's tough for sure. To make matters worse, sometimes you need to buy older versions of the software, (which sometimes gets picked up at garage sales, with serial numbers that may get you into trouble).
Then, one day, you get the letter in the mail from an attorney (possibly Donahue Fitzgerald that handles many Autodesk audit cases) and you read it and your heart sinks. You are asked to submit to a voluntary internal software audit. What you do next could make or breack your company.
How to respond to an Audit request letter
Here are some of our general tips to responding to an Autodesk Audit letter:
1. It is normally best to comply with the audit request. This is something that needs to be discussed with your software licensing counsel.
2. Locate all your receipts. Dated proofs of purchase is what Autodesk or its attorney representatives will want to review. The basic question is DID YOU PAY FOR ALL THE SOFTWARE THAT YOU ARE USING? If not, you have a license shortage issue and a potential federal copyright infringement lawsuit that could financially cripple your company. Usually, the Autodesk attorneys will be cool if you were properly paying for most of your licenses, but if you were engaged in wholesale copyright infringement, that is a different story.
3. Submit your voluntary self audit results highlighting and lack of licenses that you inadvertently have. If you lost receipts, that needs to be pointed out to the Autodesk compliance lawyers. Having lost receitps from several years ago is not necessarily a licesning violation or a breach of contract of the EULA.
4. Negotiate a settlement. Typically, Autodesk will want you to pay for what you are using, and pay their attorney fees and possibly a statutory multiplier (MSRP X 3). The rationale for the statutory penalty is that since you do not end up in federal court facing willful copyright infringement charges (like most BSA representatives like to claim in every case) you should pay them an increased settlement fee. This is controversial and can be negotiated in most cases.
5. Obtain a confidential settlement agreement that disposes of your case. If you have to make payments, we have arranged these in the past as well.
This is a general legal overview. There are many other issues that can arise in an Autodesk audit, and we can help guide your company through the legal issues. For more information contact us at (877) 276-5084.
What happens if you have a software licensing shortage?
As mentioned above, if you are missing licenses, we can seek to negoatite a confidential settlement that resolves your case without an expensive copyright case, and which allows you to get back to business without a public social media disaster.
Another important tip is to NOT destroy evidence or quickly run to purchase licenses of the Autodesk software. This could lead to negative inferences if your case ends up in a federal lawsuit, and purcahsing new licenses could show you were aware there was a shortgage (going to the willfullness of the infringement) and could lead to increased legal exposure to your business.
What happens if we have not paid for any licenses?
This is where potential legal problems can surface. If you are a new company and decided not to pay for software because you were a startup and did not want to front the software costs, and planned to pay it later once the firm was doing well, this could be a real problem, and having experience litigators becomes even more important. If you did not pay for the software and have no licenses at all, you will be accused of engaging in intentional and willful copyright infingement. These are the types of cases that the law firm representing Autodesk may actually want to file in federal court. Why? Because in these types of "software piracy" cases they can seek their actual damages, statutory damages and attorney fees. For your company, this coule be devasting. The damages for willful infringement can be $150,000 or more.
Contact a BSA defense lawyer
Our lawyers have experience handling Autodesk Audits and we are happy to provide a free confidential discussion about your case. Before you drop down $10,000 for retainer fees that some BSA defense law firms might want to quote you, contact one of our software compliance lawyers to discuss our flexible legal fees (which can include flat rate fees in some cases) and discuss a general strategy for your firm. We can be reached at 877-276-5084.