Software Audit Defense Tips

Introduction

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Sample “back off Jack” infringement response letter (pirate reseller)

October 15, 2015

Cutting Edge Software Inc.

15 Embarcadero, Suite 150

San Francisco, CA 94101

Attn: Mr. Chief Software Audit

VIA U.S. MAIL & EMAIL: [[email protected]]

Re:  Response to your Notification of Copyright Infringement Letter.

PERSONAL AND CONFIDENTIAL – PLEASE DIRECT TOWARD APPROPRIATE PARTY FOR IMMEDIATE RESPONSE.

Dear Mr. Bad Guy:

My firm has been retained by The Architect & Engineering Firm of the West (“AEFOTW”) to respond to your letter that is alleging copyright infringement of your “CAM and CAD product. Please direct any future communication in regard to this matter to my San Francisco address set forth on this letterhead.

My client has, and continues to deny any wrongful use of your software and denies the allegations and insinuations set forth in your letter such as your reference to “innocent infringement.” You should be aware, that my Client has lawfully purchased the SuperCAD 2016 software from a company whom they identified themselves as an agent to my Client and who:

• Represented and held themselves out as a Super CAD representative and licensed reseller (making your company liable for their actions as “ostensible agent”) this has been pointed out to you in prior emails from my Client;

And,

• Who claimed to be selling legitimate authorized copies of the software at issue (no the bootleg copy you are now claiming was downloaded and installed).

In short, my Client paid fair value and believed everything was on the “up and up” through what they were informed was a reseller and “authorized” reseller of your company.

As a software publisher operating on an international basis, you have an obligation to police the marketplace, and to the extent you believe a company is wrongfully holding themselves out as your agents and selling copies of your software you have an obligation to take action to both protect your brand and protect innocent victims.

My Client at all times believed in good faith that they were dealing with a legitimate company.  However, now you are claiming that my Client has infringed your software by dealing with a “software piracy group” known as “legends never die.”  Apparently, you claim your “TPM” (technology protection measures) notified my Client of this.  We find this very confusing, if not improper, and based on the foregoing we would ask you to cease and further collection activity.  I think it is important to note what your EULA actually says:

Intellectual property & software licensing rights

1. Software publisher and its associates, resellers and company affiliates shall take all legal steps to eliminate piracy of their software products.
2. Software company may use technical protection measures (TPM) to protect intellectual property rights of the licensed Materials.
3. Customer / End User may not attempt to remove or circumvent any TPM, as this may be seen as a violation of the Digital Millenium Copyright Act (“DMCA”) and may trigger a federal court lawsuit.
4. We may collect from you or any of your workstations personally identifiable information (“PII”) and may be collected as part of such TPM will be used to help enforce compliance with this license, and will not be used for any other purpose without your informed written consent.

Apparently, by not stopping what you are now claiming to be a known software pirate (“Legends Never Die”) you are NOT taking all legal steps available to you, and which you were aware of, and should have been aware of, and instead of taking the proper protective actions you are now seeking to extort $250,000 from my Client attributable to your willful failure to police the marketplace and to try to entrap my Client in this fraudulent business scheme.

This is not a fair or acceptable result.  In fact, we see this as a breach of YOUR obligations under what my Client informed was a legitimate purchase of software and the agreement (which you claim applies) as per the actions of your known authorized reseller-agent.   We dispute your contentions in all respects and given that you refuse to take action, we can only assume you consent to their actions and assume full responsibility and are willing to be sued for their fraudulent conduct.

 Further, your EULA (as noted above) claims to be collecting “personally identifiable data” but fails to inform the user of what is actually being collected, stored, used and shared.  This raises significant user PRIVACY concerns (which may require a class action lawsuit to fully resolve if this issue is not rectified immediately).

At this time, we dispute that the EULA even applies to my Client as this was never made explicitly clear by your reseller.  As a company with offices and operations in the U.K. you would be bound by the extremely protective EU privacy rules, which we will push if forced to do so.

We hope we will not be pushed to go to this extent to resolve this dispute. You should note my Client has none of your software installed on their computer, per your demands to remove same and while all the while showing extreme indifference in your emails to my Client to actually address, confront, or pursue the company you claim is the software pirate.  At this time, your remedy and your recourse, if any, is against the reseller of your software which you know the name and identity of.  My Client will not be giving into your demands.

  At this time, we would kindly ask you to close this matter out and confirm same in writing.  If we cannot get this matter closed out immediately, we reserve the right to file all appropriate legal actions, including but not limited to a federal declaratory judgment action seeking a declaration of non-infringement and seeking our costs and attorney fees.

   Please let me know your position within 10 days of the date of this letter.  If we do not hear back, we will review our options and protect ourselves accordingly and reserve the right to seek monetary damages for the fraud which has caused my Client significant damages, including lost business opportunity and now attorney fees which damages continue to mount. All rights and remedies are hereby reserved.

Very Truly Yours,

Software Counsel

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Sample Letter to Publisher Over Software Reseller Fraud by Steve Vondran

Contact a copyright attorney

We can help in all kinds of copyright, software & technology related cases including (a) software audits, (b) DMCA take down and litigation cases, (c) plagiarism cases, (d) suits against resellers, (e) breach of EULA licensing agreements, and other software related mediation and arbitration cases.  We offer low FLAT RATE FEES for many cases and tenacious customer-focuses legal representation.  We serve Clients around the United States and international companies including Canada and in Europe facing copyright audits and infringement actions in the U.S.  Call (877) 276-5084 for a free initial consultation.