Software License Compliance Updates 2019 - "ITCA" international copyright compliance
I reviewed a letter recently from the ITCA. I had not heard their name before so I decided to look them up. Here is what I found on the ITCA website:
"ITCA is the global leader in software licensing compliance. The organization comprises of technical and legal experts worldwide who bring to their clients a wealth of experience and in-depth knowledge of the regional legal, political, and cultural aspects of software in compliance. Our mission is to help our clients minimize unfair competition and potentially harmful financial repercussions within their market. We educate them in software use, licensing, and compliance with the goal of creating an economically sound and competitively fair playing field for the entire software community."
The company claims to be located in the Netherlands (but also has a New York address). One software product that they may alleged to be infringing is "Tekla Structures Product." The company is Tremble (located in Finland). Their letter demands cooperation and to cease and desist. A software infringement report may be provided (indicating "phone home" monitoring technology may be used (product, hostname, and MAC address fields may be provided).
If you received a letter from them and are located in California or Arizona, give us a call to discuss. We can be reached at (877) 276-5084. We are a leading law firm in the area of software audits and licensing compliance.
Beware of "Phone Home" technology in Software Products
Here is a copy of the Trimble EULA :
THE TEKLA SOFTWARE PRODUCT, TOGETHER WITH ITS DOCUMENTATION, TO WHICH THIS EULA (DEFINED BELOW) IS APPLIED, AND/OR IN WHICH THIS EULA IS EMBEDDED, IS PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS AND INTERNATIONAL TREATIES. UNAUTHORIZED REPRODUCTION, DISPLAY, MODIFICATION, DISTRIBUTION AND USE OF THIS SOFTWARE OR THE DOCUMENTATION, OR ANY PORTION OF THEM, MAY CONSTITUTE AN INFRINGEMENT OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS AND RESULT IN CIVIL AND CRIMINAL LIABILITY.
4.6 Subject to payment of applicable maintenance fees, You are entitled to purchase additional usage-based Licenses. Usage-based Licenses may not be used by Professional Consultants. You acknowledge and agree that Trimble monitors usage of the Software by You and Your Authorized Affiliates for reporting and invoicing purposes. You acknowledge and agree that Trimble may share the usage reports with its Authorized Distributors and that the usage reports shall constitute conclusive and binding evidence of Your use of the Software. Configuration of Licenses by You that is not in accordance with instructions provided with the Software, or that is otherwise erroneous or not appropriate for Your use, shall not relieve You from payment of License Fees in accordance with the usage reports.
8 Audit Rights
8.1 Trimble and its Authorized Distributors may at any time conduct, or appoint an external auditor to audit Your compliance with the terms of this EULA (“Audit”). Trimble shall provide no less than five (5) days' advance notice of such Audit, except where the Audit is conducted electronically in accordance with Clause 8.3 below.
8.2 In connection with the Audit, You shall grant Trimble, its Authorized Distributor or an appointed external auditor reasonable assistance and cooperation and such access to premises, systems and materials as necessary to determine Your and the Authorized Affiliates' and Professional Consultants' compliance with this EULA.
8.3 Without prejudice to the foregoing, the Audit may also be conducted electronically utilizing the audit functionality of the Software, designed to enable Trimble to automatically monitor that the use of the Software complies with the terms of the License, and to detect and notify Trimble of installations and use of unlicensed or otherwise infringing copies of the Software. You expressly agree and consent to such monitoring and reporting to Trimble.
8.4 If the Audit results determine that You or an Authorized Affiliate or a Professional Consultant, as applicable, are not in compliance with the terms of the License, You shall immediately remedy such non-compliance, whether through purchase and payment for additional Licenses, or otherwise, and, without prejudice to any rights or remedies that may be available to the Trimble, compensate Trimble for reasonable costs of the Audit.
8.5 You shall keep, and require that any Authorized Affiliates and Professional Consultants keep, accurate accounts, documents and records in sufficient detail to enable Trimble to effectively exercise its rights under this Clause 8.