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.

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Autodesk, Vernor trade arguments