Most recent blog entries

More Vernor Analysis

owenw@manusoft.com — Fri, 23 May 2008 19:07:16 GMT

As I expected, the Vernor ruling is getting a lot of airplay, and a Google search will turn up myriad discussions on the subject (most, unfortunately, devoid of real value). Here are two links to useful expert commentary:

Patry on Vernor Ruling

owenw@manusoft.com — Thu, 22 May 2008 15:59:45 GMT

Famed copyright expert William Patry discusses the Vernor victory on his blog. Followup comments contain interesting analysis and discussion as well.

Public Citizen Blogs About Vernor Order

owenw@manusoft.com — Thu, 22 May 2008 01:33:59 GMT

For those of you following the Vernor case, today's order elicited a blog post from Public Citizen, the group representing Vernor in the case. This represents a biased viewpoint from one of the parties in the suit. I will post links to independent legal analysis as I find it.

Crushing Blow for Autodesk

owenw@manusoft.com — Thu, 22 May 2008 00:55:41 GMT

The court today issued an order denying Autodesk's motion to dismiss the charges in the Vernor lawsuit. Normally such a denial is perfunctory and mundane, but in this ruling the court performs a breathtaking analysis of whether the AutoCAD software was a sale or a license, and reaches conclusions that, if not reversed, are certain to change the face of software sales in the USA. Technically, the scope of this order is limited to simply refusing to grant Autodesk's motion to dismiss the lawsuit, but the implications of the judge's analysis are almost stunning in their rejection of Autodesk's legal claims. I'm sure you will be hearing much more about this order in the coming weeks, as the entire software industry will certainly take notice of this case.

Autodesk, Vernor trade arguments

owenw@manusoft.com — Thu, 06 Mar 2008 23:25:15 GMT

An exchange of arguments in the Vernor lawsuit over the past few weeks begins to solidify the arguments and clarify the strategies of the two parties. First Vernor's attorneys filed a brief in opposition to Autodesk's motion to dismiss the lawsuit, then Autodesk responded.

Vernor's attorneys are clearly challenging conventional thinking as it relates to copyright and software licensing. This is expected, as Public Citizen, the nonprofit group funding Vernor's challenge, has said that it wants to clarify existing case law with regard to software licensing. On the other hand, it's what Autodesk does not argue that I find most interesting. Autodesk seems to have made a strategic decision to not challenge the basic assertion that they are using the DMCA to enforce a contract. They do make a weak argument that the DMCA applies in this case by charging that Vernor's actions amount to contributory copyright infringement -- but the vast majority of their brief counters points that don't appear to have much bearing on the central charges made in the initial complaint.

The fact that several of the AutoCAD licenses at issue were previously upgraded, and that Autodesk had a separate settlement agreement with the original owner regarding those licenses, is clearly seen by Autodesk as a chink in Vernor's armor, and they are attempting to exploit this. I think this would be a poor strategy if the case was only about Vernor (because at least one of the AutoCAD boxes was from a different source, therefore exempt from the arguments), but it may prove to be very effective at preventing significant case law from being made by steering the focus away from the more generic issues of what constitutes unenforceable license terms and the extent to which licenses can be used to expand copyrights.

My conclusion is that Autodesk is positioning its arguments with an eye to a future appeals process by creating an exploitable technicality that can be used to deflect the focus away from the issues that Public Citizen wants to settle in case law.

Autodesk Asks Court To Dismiss Vernor Lawsuit

owenw@manusoft.com — Wed, 16 Jan 2008 23:39:46 GMT

In a motion filed yesterday, Autodesk argues that the court must dismiss the Vernor lawsuit. Autodesk's legal argument includes some interesting twists, including a definition of "owner" for purposes of the first sale doctrine that will certainly be challenged by Vernor's attorneys. In addition, an accompanying declaration by Evelyn LaHaie of Autodesk's License Compliance department details the interesting history of the AutoCAD Release 14 licenses at issue, including evidence that they had been upgraded to a later version.

There is a lot of fascinating reading here, and I will have more to say on the subject after I've had time to absorb and process it all.

Vernor formalizes new attorney, files amended complaint.

owenw@manusoft.com — Sun, 18 Nov 2007 02:00:08 GMT

Tim Vernor's new attorney has filed an amended complaint [4] in Vernor's lawsuit against Autodesk. Randall newton has written more about the new developments at AECnews.com.

Evan Yares analyzes the Vernor lawsuit

owenw@manusoft.com — Thu, 13 Sep 2007 22:30:00 GMT

Evan Yares has written an excellent analysis of the Vernor lawsuit. It looks like this lawsuit is gaining traction in the blogosphere, so I expect much more commentary over the next few weeks.

David vs. Goliath

owenw@manusoft.com — Mon, 10 Sep 2007 22:30:00 GMT

AECnews.com reported about a new lawsuit filed by an individual seeking 10 million dollars in punitive damages from Autodesk for causing his eBay account to be cancelled. The lawsuit is a bit off topic for this site, but I think the plaintiff makes an interesting legal argument.

Autodesk petitions for cancellation of OPENDWG trademark

owenw@manusoft.com — Wed, 11 Jul 2007 23:04:00 GMT

A member of this site alerted me to this case at the TTAB (Trademark Trial and Appeal Board): http://ttabvue.uspto.gov/ttabvue/v?qs=75429699

In short, Autodesk wants the TTAB to cancel the "OPENDWG" trademark currently registered to the Open Design Alliance (there are actually six different registrations being contested, all for the same mark). You can read the filings directly on the USPTO web site. The original petition is here: http://ttabvue.uspto.gov/ttabvue/v?pno=92047002&pty=CAN&eno=1. The parties are currently in the discovery phase, with testimony to begin Novermber 16, 2007, and to continue until February 29, 2008.

The January 18, 2007 filing date of this petition indicates that it was done just as the trademark infringement lawsuit was getting underway, and before a settlement had been reached. After an extension of time was granted, ODA answered the petition on June 11 (see http://ttabvue.uspto.gov/ttabvue/ttabvue-92047002-CAN-11.pdf) denying any infringement and requesting that the petition be dismissed for several reasons.

I will continue to post here as I learn of new developments in the case.