Software Defense Attorney discusses Dassault [Solidworks] Copyright Infringement
VIDEO: Click on the picture above to see Attorney Steve review the Federal Court Pacer tool to see if Dassault Solidworks has filed lawsuits in the past few years. Make sure to SUBSCRIBE to our popular legal channel (by clicking on the Red “V” for Victory) which is fast approaching 30,000 subscribers and we are over THREE MILLION VIDEO VIEWS!!!
August 2020 Update - Dassaultes is being very aggressive in late 2020 and early 2021 in our opinion. They are seeking large settlements from small business owners for infringement of their software which can include using pirated versions of their software or even over-installing and using software without the proper licenses. You may first deal with a "mediator" but if you cannot resolve the issue, it may go to their law firm Harness & Dickey a leader in the United States when it comes to intellectual property rights enforcement. They will threaten lawsuits, and we know they have in fact filed before, so the litigation threat should be taken serious, especially since officers and directors might be named personally in a lawsuit despite the "corporate veil."
Solidworks by Dassault creates cutting edge software that helps engineers and designs make quality products. However, at several thousands of dollars to license the software, piracy claims often surface against startup companies and established companies alike (who may not be aware that one of their employees, contractors, or consultants are using the software) and when you receive a notice of infringement letter that is when many business owners get concerned and call our office.
We can help take care of your problem and help you settle your case with a copyright infringement release. This blog contains some general information relevant to this topic.
Solidworks uses "phone home" technology that purports to track infringement in your organization. Call us for a free initial consultation or email us through our contact form. We are one of the few law firms in the United States that have a track record of successful settlements dealing with Dessaultes Solidworks. You should know if they cannot get the case settled, we have seen a sample draft complaint (over 35 pages) that could be filed if you decide not to respond, or do not adequately resolve the matter.
DATA COLLECTED: In order to use certain functions and features of the Site, DS SolidWorks requires that You provide certain Personal Data when visiting or using the Site. Personal Data may include:” when visiting or using the Site. Personal Data may include:
"title, first and last name, postal address, email address, telephone number(s), login and password, university, degree and courses taken, company, company size, department and job title, industry and industry sub-industry sectors, delivery method and people to whom purchases must be shipped, financial data (credit card number and expiry date, name and address of the cardholder), IP address, and any other Data as may be relevant for the purposes listed below."
Have you seen this? When you agree to their terms this may be one you were not quite aware of:
“Audit. During the term of this Agreement and for a period of three (3) years thereafter, you shall establish and maintain accurate information records relating to the use of the Offering, including, without limitation, the list of users accessing and using the Offering. When applicable, such information shall include destruction of the Offering and the measures put in place by you to protect access to and use of the Offering. DS SolidWorks shall have the right – at any time, at its own expense and under reasonable conditions of time and place – to audit and copy these records and/or your use of the Offering. You also hereby authorize DS SolidWorks to verify your compliance with the terms of this Agreement.
For such purpose, DS SolidWorks may conduct an audit on your premises during normal business hours, in a manner that minimizes disruption to your business. DS SolidWorks may require you to provide it, or any third party that DS SolidWorks engages to conduct such verification, with machine access, copies of system tools outputs, or other electronic or hard-copy system information as appropriate. If the audit reveals unauthorized use of the Offering, you shall promptly pay to DS SolidWorks any amount(s) owed as a result of such unauthorized use at the Offering's then-current list price. If such unauthorized use is five percent (5%) or greater of your authorized use with respect to the applicable Offering, then, in addition to you paying the applicable charges, you shall reimburse DS SolidWorks for the cost of such audit. By invoking the rights and procedures described above, DS SolidWorks does not waive its right to enforce this Agreement or to protect its intellectual property by any other means permitted by law.”
As you can see, you may have inadvertently “agreed” to allow your company to be raided (for lack of a better word) by Dassault and its representatives. We can help prevent these types of onerous software audits.
What to do if you are an engineer or designer and receive a letter from Dassault
The question many companies have is “do I need a software defense lawyer to help me respond to the letter.” They also want to know “does this make me look guilty.” My response is the same, NO, business people routinely hire attorneys to help them respond to legal actions for the following reasons:
- They don't know the law in the area
- They don't have time to drop everything and figure out how to respond
- They are not well versed in negotiation
- They know nothing about a copyright infringement settlement agreement or what terms are needed
- They simply “do not want to deal with it”
- They are not sure if this could turn into a criminal case (even if nothing criminal was done, criminal threats are sometimes made)
None of these reasons implies the owner, officer or director of the company is guilty of software piracy.
If you receive a letter here are my top 5 tips
- Call us before you call them or email them (potentially saying damaging things). We offer a free initial consultation to business owners who have received a notice of infringement.
- Check the infringement report to see if MAC addresses match up
- Decide whether or not you want to respond (not responding can risk a copyright infringement lawsuit that could put officers and directors at risk of personal liability)
- If you respond, decide what your settlement goal is (do you want to purchase needed software?)
- Negotiate (this is often easier to have an experienced software licensing lawyer to negotiate the best possible deal)
- Make sure you are getting a copyright infringement release if settling the case. You want to make sure you cannot be sued in court after settling and the release needs to be comprehensive to protect your interests.
Here is a link to a company that has various costs and pricing for Solidworks software. Keep in mind, when you get into their piracy funnel, typically discounts WILL NOT be something they offer. You can expect $9,999 for Solidworks premium, $6,985 for Solidworks professional and adds are extra. For example, $4,544 for “Inspection.” Flow Simulation may be $13,995. Prices may not be accurate and are subject to change. In some (limited cases in my experience) you can seek a Solidworks basic license (about 5k). Don't forget there may be infringement, maintenance and enforcement fees.
Should I tell the boss?
Many times an employee or manager of a company will receive the infringement "love letter" as we affectionately call it. In these cases, it is important to realize that when a software infringement lawsuit is filed, both the officers, directors, employees and the company itself can be sued in federal court.
This can make a complete and total mess and create a potentially HUGE monetary liability against the company and lead to an injunction being filed in Court (would this shut down your company)? Just be aware, since everyone is on the hook, this may ultimately be an issue you want to bring to the attention of the board of directors. But the employee should first start with a solo call to our firm. At times, an officer/director or employee may have to take a position more of that of a whistleblower rather than the software pirate and point fingers at the company (in order to avoid their own personal liability). In these cases, we can represent only the employee-whistleblower and sometimes if there are no conflicts we can represent the entire organization and employees, officers and directors where the collective interests are aligned.
- CEO of Solidworks gives piracy statement (talks about software being sold on eBay and Craigslist)
- Reddit user talks about friend accused of pirated software use
- What is willful copyright infringement?
- What happens if I cannot get my software dispute settled amicably?
- Potential copyright infringement damages
Dassault Systemes, SA v. Childress, 663 F.3d 832
Here is another case involving Dassault filing a lawsuit alleging copyright infringement.
A. Factual Background
For about fifteen years, Childress has owned and operated Practical CATIA, a small business that trained individuals to use the computer-aided design program CATIA, which was developed by the French company Dassault. Dassault owns the copyrights for its CATIA software products, including the CATIA V5 software at issue in this case. Dassault has also registered the CATIA trademark with the United States Patent and Trademark Office ("USPTO").
Citing the potential for confusion and the similarity of the marks and underlying services, the USPTO denied Childress's request for a trademark on the name "Practical Catia Training" in August 2003. In 2001, Childress obtained the initial license for Dassault's CATIA V5 software through IBM, which was a business partner of Dassault and was involved in licensing CATIA software. The license was issued to the name "G. Bailey and Associates," which Childress asserts was the original name of his business and was located at Childress's address.
The license agreement provided for one annual nodelock license that permits the CATIA software to be used on a single computer based on a unique Target ID. Childress paid the approximately $2,380 yearly fee for that license from 2002 until 2010.
The parties do not dispute that Childress operated CATIA software on multiple computers during the course of his training classes. Childress claims that IBM and MSC, which is a business partner of IBM and an authorized CATIA reseller, began providing additional licenses in 2001 in exchange for Childress's willingness to provide sales leads and to place MSC advertising on his website.
According to Childress, an agreement with MSC provided that IBM would supply Practical CATIA with fully functional licenses for use in the training courses, as well as temporary licenses for students' personal use. Although. Childress admitted to copying his single nodelock license to multiple computers, Childress maintains that he was merely implementing a "workaround" provided by MSC that avoided certain problems with the license server used to access the software on the training computers. R. 55.
Dassault counters that Childress had no such licenses, and that Childress instead conducted his training courses using bootlegged copies of the CATIA software created from his single legitimate license. Dassault maintains that Childress illegally cloned the Target IDs and software to permit him to upload the software onto multiple additional machines. According to Dassault, any software issues requiring a "workaround" were the result of Childress's attempts to operate unlicensed and illegitimate copies of the CATIA software.
Contact a Software Technology & Intellectual Property Law Firm
If you received a demand letter or even a phone call from a Solidworks representative, it is best to weigh your legal options. We can help you decide which course to pursue. We offer a no-cost initial consultation to persons and companies who have received a cease and desist letter or a settlement demand letter.
Call us at (877) 276-5084. We offer low flat rate fees (no triple billing) designed to make it affordable to have a copyright lawyer on your side. They normally have lawyers on their side.
You can also email us using our contact form submission. We have handled hundreds of software-related disputes including Microsoft BSA audits, Autodesk audit letters from Donahue Fitzgerald, Siemens disputes, Vero software licensing issues and many more. We have appeared in over 150 federal court cases and have excellent client reviews, including having received the Avvo Client's Choice Award.