Copyright Infringement Series – How the software audit process works generally
This blog discusses the ins and out of what you can expect to deal with during a software license audit with Autodesk lawyers. If you haven't stared down the barrel of a gun you don't know what it looks or feels like. This article seeks to let you know what you can expect if you want to handle your own case. We do not recommend you try to handle your own case. Not because you are not smart or gifted in what you are able to do in life, but rather, because this is a complicated process in a pre-litigation legal setting. If you end up getting in a fight with Autodesk lawyers, you might find you wind up in a Court of law arguing your case which will most certainly have negative affects to you and/or your company.
Chapter 1 – The Love Letter
The love letter refers to the letter you get from Autodesk attorneys which (without specifically saying it, basically accuses you of being a software pirate, and asks you to voluntary audit your internal software systems). This letter will cause great anxiety, and is usually the reason our law office gets the call.
Chapter 2 – Threats to the Board of Directors
Early on in the licensing case, it is likely that the directors of the company will be threatened with personal liability and forced to look at their own D & O insurance policies (directors and officers). This further enhances the anxiety and creates great concern in the company and its business executives. As we have explained in other blogs, directors and officers can be liable for software infringement under certain circumstances.
Chapter 3 – Assertions of willful copyright infringement
A common theme in a Autodesk software license audit, is to continually threaten a copyright infringement lawsuit and to dangle the word “willful” around ad nauseum until they are blue in the face threatening to recover enhanced damages and attorney fees. Rarely (but not always) is the software infringement willful, and this is a point that needs to be vigorously rebutted.
Chapter 4 – Threats of a federal copyright lawsuit that will bankrupt your business
Another role of opposing counsel is to make clear that the business will face exorbitant losses, so much so that it could be forced into bankruptcy. We have often experienced great delight Autodesk attorneys take in threatening to push the software pirate company into bankruptcy if a settlement cannot be reached. It is against this aggressive behavior that your attorneys will be fighting for you and trying to negotiate a settlement that is acceptable and financially feasible.
Chapter 5 – The internal audit
The audit will take your company time to get right. You will want to be accurate and provide a full accounting of all laptops, computers and servers as requested by Autodesk. A report is made and license shortages are identified.
Chapter 6 – The come out offer
Autodesk will usually make an offer to settle based on the shortages. Often, the figure will be shocking and out of reach for the average company. It is our job to grind out a deal for our client.
Chapter 7 – Negotiating the deal
This is a tough part of the case. Many clients think this is like a flea market whereby they make an offer, you counter, they counter and you close. It is frankly not that simple. It is a time consuming process to work out the details.
Chapter 8 – Negotiating the terms of the settlement agreement
The settlement agreement is another area of concern, and highlights the reason most people would never want to handle an Autodesk audit on their own. The releases can be close to twenty pages in length, difficult for non intellectual property lawyers to understand. There are often terms that will work against your favor, which need to try to be negotiated out and striken, or modified from the contract. This is where a strong background in contract negotiations is important.
Chapter 9 – Taking a deep breath and getting back to business
At the end of the day, we are normally able to forge a settlement the parties can live with. Software is their product and they deserve to be paid for licenses used by engineers and architechts. We try to make this 30-90 process manageable, and coordinate with you every step of the way. This is not something you should consider doing on your own especially where your business is at stake.
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Tips to survive your Autodesk software license audit
1. Be candid and up front with your counsel
2. Provide a detailed and through audit report
3. Be honest about your shortages
4. Work with us in good faith to negotiate your settlement
5. Ba patient – these cases are not resolved overnight
6. Be aware that if you are seeking monetary payments to cover the settlement agreed to, they may require that you submit financial documentation to verify the need for payments. Again, work in good faith through this process with us.
If you have any questions or concerns, please contact us using the form below. We have experience working with Donahue Fitzgerald, the main firm known to be handling Autodesk software licensing cases. We have worked with their attorneys and we have saved companies from having to go to Court (either for federal copyright lawsuits, or to file Chapter 7, 11, or 13 bankruptcy).
Autodesk software audits in the news
1. Adobe, Autodesk and Corel team up in lawsuit
2. Autodesk and Assimilate settlement agreement reached
3. Role reveral: eBay user sues Autodesk re first sale doctrine
Contact our Intellectual Property Lawyers
Our law firm has a strong background in litigation and negotiation. We have dealt with Autodesk lawyers in the heat of a license audit and we have helped our clients save their businesses and avoid costly, time-consuming and public federal copyright lawsuit. Contact us to speak with one of our Copyright lawyers to discuss your case. The initial consultation is provided no charge to you. We believe when you shop around you will find our firm provides the best match of both quality and affordability and we are ready to help you navigate this process. We can be reached at (877) 276-5084 or fill out the contact form below to have one of our software licensing attorneys contact you, normally within the hour. We offer very aggressive and flexible legal fees and tenacious defense.
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