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Dessault Systems Solidworks/CJCH sols - copyright infringement threats

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Hi All, hopefully you can advise me on a sticky spot I’ve just landed in.

 

I’ve had what I believe to be a perfectly genuine threat-o-gram from a firm of solicitors representing Dessault Systems, makers of the Solidworks CAD package.

 

 

They’ve correctly identified that I’ve used their software without a licence, but erroneously connected it with my very small business operation for which I own a domain and sell a few bits and pieces online.

 

 

I manage my website, email etc on the same PC that on which I have Solidworks installed.

The two uses are wholly independent.

 

I’ve seen the template letter on the CAB website and will be sending off a request for them to comply with Pre-action protocol and prove when I used it.

 

 

They probably can (whether they do or not remains to be seen).

What they most definitely can’t do is connect it to my small business, other than via my ISP.

They’ve put 2 and 2 together and come up with 5.

 

I would like to add something to this effect in my response

- asking them to prove I used it for my business and pointing out that they will find this impossible.

 

 

What do you think?

Thanks in advance

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What difference will it make?

Their rights have been infringed if you used their software without a license.

 

Is your business a limited company?

if not and it it a sole-trader or a partnership, it isn't really relevant if it was 'you' or 'your business' ; they would be suing you as an individual.

 

It would only really matter if your business is a limited company, where they would have to choose between suing 'you' as an individual, or 'your limited company' as a distinct legal entity.

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most of these software copyright infringement threat-o-grams are from ambulance chasers and are spoof

that have at some point gotten the copyright owners of the software to 'sign-up' to them en-masse.

they actual developers of the package wont see a penny of what they spoof out of you.

 

I would expect the company that wrote the program have no knowledge about you nor your use

or are the least bit interested in taking you to court

 

read the letter properly

I bet it doesn't say WILL anywhere.

 

and I bet their client is not the firm that wrote the CAD application but the publisher.

 

can you scan the letter up to PDF please


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Guest Mrs Hobbit

Was it a trial version you used or a pirated version?

 

if it was a trial version, did you download it to your computer?

 

I use l a graphics programme, had a months free trial and then bought it, but every time I used it in that trial month, it was recorded by the company concerned. the trial version came from the company directly. the programme had to be downloaded to my computer so I could use, the company had my IP on record the minute i downloaded the trial version. Every time you open the programme there will be record of this not being used with a legitimate license.

 

If it is a pirated version or a cracked version of the programme, you have not got a legal version of the programme. You have a copy of the programme in your possession and that is enough.

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cant find one court claim from them either,.


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Thank you for your replies everyone. I wish it were an ambulance chaser but they’ve specifically identified me as a user of the software and connected it to me via my website. I’m not sure how (actually, I have an idea, but it would be very ‘enterprising’ of them).

Yes, I’m one of those leeching so-and-so’s using an industrial package worth thousands to design a few bits for model aircraft. There are no excuses, except that it was a great way to learn the software!

The reason it “makes any difference” is that, if it is genuine, they’re making a case based on assuming my use of the software to be for-profit. I believe they have to prove a “loss” associated with my use in order to make a claim.

I’ll do some more background and if replying, will demand they follow pre-action protocol (the letter already breaks it at least once)

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can we see it?


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Guest Mrs Hobbit

It will be interesting to see what eventuates with this.

Just a thought, are you using a dynamic or static IP address?

 

If it is like mine it will be a static IP. I do use a hosting service and and requested a static IP. This is how they think they have nailed you.

 

Any reason for not buying a license apart from the cost if you are continuing to use the programme? None of my business I know. Are you going to use the programme? If not, i would be inclined to remove the programme and all traces of it from the computer. there are programmes out there that can do this very efficiently and wipe all traces. I suppose I should not tell you this. I am used to the copyright issues of graphics and digital art. It is a nightmare.

 

I would not respond to the threat-o-gram it is a fishing expedition and hope you will take the bait. If they send another missive to you, they will have to have proof that you are continuing to use the programme unlicensed. Trials of a programme are usually unlicensed with an inbuilt time clock so the programme wont work beyond a certain date/time.

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still ambulance chasers...


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Yes, I’m one of those leeching so-and-so’s using an industrial package worth thousands to design a few bits for model aircraft. There are no excuses, except that it was a great way to learn the software!

The reason it “makes any difference” is that, if it is genuine, they’re making a case based on assuming my use of the software to be for-profit. I believe they have to prove a “loss” associated with my use in order to make a claim.

 

They'll claim their loss isn't the value you could have made from the model parts, but that their loss is the loss of the sum they should have had for you to buy the licence.

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can we see it?

 

Yep, will need to do from home. Am in my day job at the mo.

If it is like mine it will be a static IP. I do use a hosting service and and requested a static IP. This is how they think they have nailed you

 

Any reason for not buying a license apart from the cost if you are continuing to use the programme? None of my business I know. Are you going to use the programme? If not, i would be inclined to remove the programme and all traces of it from the computer. there are programmes out there that can do this very efficiently and wipe all traces. I suppose I should not tell you this. I am used to the copyright issues of graphics and digital art. It is a nightmare.

 

I would not respond to the threat-o-gram it is a fishing expedition and hope you will take the bait. If they send another missive to you, they will have to have proof that you are continuing to use the programme unlicensed.

 

My home ISP is independent from my domain host.

 

My reason for not buying it is it isn’t sold for home use and costs many thousands.

The tacit understanding by home users is they won’t come after you for using it, and that it is so easy to pirate for a reason (they wouldn’t be the first *cough*Microsoft*cough*).

 

 

Pirating by home users just encourages mass adoption, and the money flows from companies who adopt it.

I think Bill Gates has said as much, hasn’t he?

 

Interestingly the link posted above does talk about going after commercial users.

There really is no point in chasing me as they won’t find any money made off the back of my using their software.

 

CAB seem to think it’s unwise to simply ignore,

but a reply demanding they stick to the pre-action protocol is probably a good idea.

 

 

I would like to specifically request their evidence that their software has been used in a commercial capacity… because it hasn’t.

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acs law all over again...

 

 

you watched a copyrighted DVD online..

we know so cause its on your IP...

 

 

oh yea..so it couldn't of been my nextdoor neighbour via my Wi-Fi them..


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Guest Mrs Hobbit

Sounds like you have it under control.

 

I would be careful of the home users tactic though. Take the advice of the CAB and be guided by them. I know they say they are going after commercial users, but what is the definition of 'commercial'? I am asking this rhetorically.

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Guest Mrs Hobbit
acs law all over again...

 

you watched a copyrighted DVD online..

we know so cause its on your IP...

 

oh yea..so it couldn't of been my nextdoor neighbour via my Wi-Fi them..

 

I agree... there are ways around this but to tell you how on an open forum would land me in hot water with the admin team here.

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I am struggling to understand why you keep thinking that because you have used the software privately you have somehow not breeched their copyright.

 

It is their product and regardless whether you personally believe it is expensive or not is irrelevant.

 

Unless you have a Solidworks HUL you would have to buy a licence and either way you have to abide by the terms of the user licence.


It is easier to enter a rich man than for a camel to pass a needle

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I wasn’t suggesting the home use as a tactic at all, just attempting to justify my transgression. I have no excuse, it’s piracy and I’m guilty.

 

However, I have not used it for a commercial purpose and this is what they’re implying. I am not the problem they’re trying to tackle.

 

I will ask them for their evidence in line with the pre-action protocol and suggest they’re barking up the wrong tree wrt commercial use.

 

Thanks for the input.

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But why do you think it matters to them whether you used it for commercial gain or not?

You have illegally used the software.

 

There is no get out because you were just playing with it, you have breached copyright.

 

You would be better off accepting your guilt and look to limit your exposure by clarifying your transgression to being just you as a home user.

 

Rather than as a business user


It is easier to enter a rich man than for a camel to pass a needle

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all and bugger they can do.

 

 

dx


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Hi stunned_monkey,

 

I'm aware of the SolidWorks package - and yes, it costs many $$$s.

 

 

I'm interested to know how they have made a connection to yourself, was it:

- Their software reporting usage via an IP address. The obvious defense here would be to claim open wifi

- You uploaded a solidworks file to your website, and the file contained details of the license used.

- Some other method?

 

The strength of that connection would help construct a defense argument.

 

Thanks

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Guest Mrs Hobbit

I found this morning and thought it might be appropriate for this thread

 

How to calculate damages for use of unlicensed software

 

There was a 25% increase in the number of companies settling for unlicensed software use in the UK last year, according to the Business Software Alliance. But the sums paid go some way to showing how UK law provides little deterrent to such piracy.

 

 

16 Feb 2006 Copyright TMT & Sourcing Intellectual Property Banks TMT Diversified industrial Energy Public sector Insurance and wealth management Real Estate

 

The Business Software Alliance (BSA) figures were published on Monday.

 

 

It opened 420 investigations in 2005 into UK businesses reported to be using software illegally, an increase of 24% on 2004.

 

 

According to the BSA, the strength of the economy was a key contributor to the rise: as businesses enjoy rapid growth, managers often overlook their software licensing. It put 80% of the settlement cases down to negligence.

 

The largest settlement was for £31,000 and eight settlements exceeded £20,000.

But these sums are not wildly different from what each company would have paid had it been properly licensed in the first place because copyright law does not set out to punish for simple infringement.

 

OUT-LAW spoke to Graham Arthur, a Senior Associate with law firm Covington & Burling, who acts as BSA's UK counsel and author of many threatening letters sent on behalf of BSA members like Microsoft and Adobe. And he hopes that legal reform will give his letters more bite.

 

He explained that when a copyright owner has had its rights infringed

– such as the use of a computer program with no licence

– the law seeks to put that copyright holder back in the position it would have been in had no infringement taken place.

 

 

When the infringement is a matter for the police

– selling illegal copies of Windows XP at the local market, for instance

– significant fines and even imprisonment may follow.

 

But licence creep

– such as 150 installations of Windows XP in a company that has bought the right to 25

– is a matter for the civil courts.

 

 

ere, damages are available but they are generally pegged to the licence fee for the unlicensed copies.

It is difficult to deter piracy if the unlicensed user only runs a risk of paying a sum that he should have paid sooner.

So, at least for now, a bit of creativity is required when assessing the loss.

 

Other countries allow for punitive damages in intellectual property lawsuits

– perhaps a licence fee in addition to a lump of cash that sends a strong warning to others.

But in the UK it's harder.

 

 

"The problem is that companies may refrain from buying a licence until they're caught

– then pay for a licence and argue that because they've paid, there is no loss," said Arthur.

 

Additional damages and The Sun

Section 97(2) of the Copyright, Designs and Patents Act of 1988 offers some hope for creative industries:

 

 

"The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to – (a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require."

 

It sounds like an opportunity for punitive damages and in a way it is; but there are few examples of its application in court.

 

 

Arthur points to a rare example: The Sun newspaper ran a story under the headline:

"DOUBLE KILLER POPS OUT FOR A MCDONALD'S – Outrage over jaunt for psycho".

 

 

A picture of the convicted killer appeared next to the story. But the picture was originally taken for his medical records when he was detained at a hospital. It was used by The Sun without authorisation.

 

Nottinghamshire Healthcare NHS Trust sued for infringement.

That bit of its case was easy.

But since the NHS Trust would never have licensed the photograph for publication, arguably it suffered little or no loss.

So it sought to rely on section 97(2) damages. Mr Justice Pumfrey considered these 'additional damages' at length.

 

Justice Pumfrey concluded:

"…careless infringement sufficiently serious to amount to an attitude of 'couldn't care less' is in my judgment capable of aggravating infringement and of founding an award of damages under section 97(2)."

 

He awarded basic infringement damages of £450

– the sum he felt that a willing copyright owner would be paid for a picture of similar size, interest and prominence being used by The Sun. But he brought that figure up to £10,000 using the powers in section 97(2).

 

Applying The Sun ruling to software

Graham Arthur acknowledges that using software without a licence is quite different from using the content of medical records without authority.

"You can't really say that the software publisher would never have granted a licence,"

he said.

"And there's no case law on the application of 97(2) in software that helps either the BSA or the infringer."

 

Arthur referred to recent cases in Norway, France and Latvia where the courts have, in cases of unlicensed software use, applied similar domestic laws

– and decided that the copyright owner is not entitled to additional damages.

 

 

He reckons the reasoning is unfair and he hopes it would not be followed over here

– especially as he sees the same “couldn't care less” attitude in many of BSA’s cases.

The cases in France and Latvia are being appealed.

 

He gives an example of how the BSA makes a calculation of loss:

"If you're using Photoshop 4.0 without a licence and you're caught, you are told to buy a licence.

You can't buy a licence for version 4.0 today

– you have to buy a licence for the current version.

But that will mean that the user has used two versions, but paid only one licence fee.

The loss in that case is the licence fee that should have been paid for version 4.0.

 

 

If we ascertain that version 4.0 has been used for, say, two years without a licence, we'll also claim for lost interest on that licence.” That combination will cost more than buying version 7.0 legitimately – so there is some deterrent; but not much.

 

Then comes the claim for additional damages under section 97(2). Arthur does not express much confidence of success. "We know that we'll only get an award if the circumstances are appropriate. It's perceived to be a provision against bootleggers," he said.

 

If the defendant had been using Photoshop 7.0 for two years – i.e. a situation where there is no room to argue about upgrades – the BSA would claim some interest, but it wouldn't be much. It would just represent the advantage to the copyright owner if the licence had been bought two years earlier and invested. "That wouldn't be fair – there is no deterrent – so this is where we might seek to rely on 97(2), especially if the software had been cracked."

 

 

What he describes is wilful infringement, not just licence creep.

 

A subscription model, rather than a perpetual licence, might provide a greater deterrent: two years' unlicensed use will become expensive and that figure is added to payments for ongoing use. But it is unrealistic to expect the entire software industry to suddenly make the shift to a subscription model. Instead, the BSA is looking for legislative reform.

 

"We are talking to the Government about getting a new provision in our copyright law that allows for a punitive award as part of a damages award," said Arthur. "The US has a remedy of statutory damages; Ireland has a very generous additional damages remedy. We want similar powers here."

 

He describes our courts as being "squeamish" and "confused" about section 97(2). Parliament needs to address that, he says.

What the creative industry hopes is not that it will profit from damages; rather, it wants a change in behaviour. Infringement is rife – but stringent penalties could deter it. The BSA claims that its aim is not to recover large sums in court actions, but to change behaviour. The risk of having to pay such sums can help, in the BSA’s view, change the “couldn't care less” attitude.

 

Arthur admits that the BSA settles all of its cases. He said: "The cost of going to court outweighs the amount at stake, even though liability is cut and dried. There is no advantage to either party in going all the way to court to argue about damages. A damages assessment is independent of the hearing on liability and a damages assessment rarely sets a precedent: each case turns on its own circumstances."

 

The BSA writes to infringers and sets out a sum and invites settlement. Court procedure demands that parties at least attempt to settle their claim. So Arthur's letter will claim for the licence fee, the interest and a figure under section 97(2) – although he confirms that "we'll be up-front in admitting that the case law on this part is not particularly helpful," he says. The uncertainty persuades the BSA to negotiate on this figure, rather than the concrete part of its claim.

 

The Department of Constitutional Affairs is expected to launch a consultation on damages later in the year. It forms part of the UK's implementation of the EU Enforcement Directive. While the UK is not obliged to change its 97(2) provision, the BSA and other creative industry bodies will answer that consultation, lobbying for reform.

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Update:

Original message (was actually over email but contained my name and address) was from the law firm mentioned in the article linked above. They gave me 2 days to respond. I had no intention of doing so given the law in pre-action protocol

 

However, after 2 days I was contacted by someone from the software company offering to “help” and again reiterating strongly the commercial misuse.

 

I replied saying I have never used their software in connection with my business, that this should be obvious, and if they wanted to discuss further, they should do so in writing.

Their response was to pass me onto their UK reseller.

 

Then the UK reseller got in touch,

still pushing the commercial misuse and saying he was “here to help me avoid legal action”.

 

 

This is textbook debt collector stuff with which I’m quite familiar and against whom this forum was immensely helpful a few years back.

Different law though, obviously.

 

 

I replied with pretty much exactly the same email but this bugger wouldn’t give up, ringing twice a day and emailing incessantly using a lot of capital letters.

 

 

I blacklisted his domain from my email server and set my call control app to pickup-and-hangup any calls from his list of numbers (they all started with the same 3 digits).

 

Then I got paranoid,

decided to mail the first contact and set out exactly what I have for you good people given that I “do not trust you to perform your own due diligence”, and suggested that anyone with 5 minutes online would see that my business is unlikely to use cad, and that my website hasn’t changed since long before my misuse of their software started.

 

 

I suggested that given the several months they waited to drop their bombshell, they were probably waiting for the work I was doing to gain sufficient value that they could twist my arm into purchasing a licence – but that in my case there is no value.

I also suggested they don’t appear to chase private/home use (quite a lot of people saying this online).

 

I concluded by suggesting they send me a “cease and desist” but that it’d be a bit redundant as I already have, and any communication would need to be in writing.

 

So far no more calls or emails.

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Hi stunned_monkey,

 

I'm aware of the SolidWorks package - and yes, it costs many $$$s.

 

I'm interested to know how they have made a connection to yourself, was it:

- Their software reporting usage via an IP address. The obvious defense here would be to claim open wifi

- You uploaded a solidworks file to your website, and the file contained details of the license used.

- Some other method?

 

The strength of that connection would help construct a defense argument.

 

Thanks

 

This was also part of my response.

 

 

I connect to the internet via EE but host my domain independently.

The only connection they could have made would've been through an IP address connected to my home address connected to my domain ownership connected to my website.

 

 

I have not shared any models publicly (any files would record the licence but not the external IP address since this should be invisible to the cad package unless they're doing something crafty).

 

 

Coincidentally even the EE account is in my wife's name.

 

 

I invited them to tell me how they had made the connection in writing according to PAP law, and told them that as I haven't used it in connection to my business, the connection "is obviously tenuous".

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its always the same with this type of fleecer

 

 

the louder they shout and the increased frequency of their shouting

usually means they have nothing more than hot air to hurt you with.

 

 

dx


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