Autodesk license compliance audits: Difference between revisions

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== Background ==

Autodesk distributes its software under license rather than sale. In ''Vernor v. Autodesk, Inc.'', 621 F.3d 1102 (9th Cir. 2010),<ref name="vernor-cl" /> the U.~~S. Court of Appeals~~ for the Ninth Circuit held that an Autodesk user is ''"a licensee rather than an owner"'' of the copy, ~~applying~~ a ~~three-factor~~ test that ~~turns on~~ whether the ~~copyright owner~~ grants a license, restricts transfer, & imposes use restrictions.<ref name="vernor" /> Because ~~the user~~ is a licensee, the [[First-sale doctrine|first sale doctrine]] (17 U.S.C. § 109(a)) & the essential-step defense (17 U.S.C. § 117(a)(1)) do not apply, so reselling or copying the software without authorization infringes Autodesk's copyright.<ref name="vernor" /> Timothy Vernor, a reseller of used AutoCAD Release 14, had brought the declaratory-judgment action himself after Autodesk sent DMCA takedown notices over his eBay auctions; a federal district court ruled in his favor, & the Ninth Circuit reversed for Autodesk in 2010.<ref name="vernor" />

Autodesk distributes its software under license rather than sale, so a customer never owns the copy. The point was settled in ''Vernor v. Autodesk, Inc.'', 621 F.3d 1102 (9th Cir. 2010).<ref name="vernor-cl" /> Timothy Vernor bought several used, boxed copies of AutoCAD Release 14, one at a garage sale and four more from another business that had originally obtained them from Autodesk, and resold them on eBay. Autodesk filed copyright take-down notices to pull the listings, so Vernor sued in 2007 to establish that reselling copies he had bought was lawful.<ref name="vernor" /> A federal district court in Seattle ruled for Vernor, but in 2010 the Ninth Circuit reversed: it held that an Autodesk user is ''"a licensee rather than an owner"'' of the copy, under a test that asks whether the seller grants a license, significantly restricts transfer, & imposes notable use restrictions.<ref name="vernor" /> Because a customer is only a licensee, the [[First-sale doctrine|first sale doctrine]] that normally lets a buyer resell what they bought (17 U.S.C. § 109(a)) does not apply, and neither does the essential-step defense for the copy made during installation (17 U.S.C. § 117(a)(1)).<ref name="vernor" />

[[File:Vernor-v-Autodesk-9th-Circuit-holding.png|thumb|center|upright=2.0|In ''Vernor v. Autodesk, Inc.'', the Ninth Circuit held that Autodesk's customers are licensees rather than owners of their copies, so they cannot resell the software or rely on the first-sale doctrine.<ref name="vernor" />]]

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An earlier generation of the agreement, Autodesk's fiscal-year 2017 License and Services Agreement, put the audit in Autodesk's hands rather than the customer's and expressly allowed it to be conducted ''"electronic or otherwise"''. Section 9.7 gave Autodesk the right, on 15 days' notice, to inspect the customer's records, systems, & facilities:

<blockquote>''As part of any such audit, Autodesk or its authorized representative will have the right, on fifteen (15) days' prior notice to Licensee, to inspect Licensee's records, systems and facilities, including machine IDs, serial numbers and related information, to verify Licensee's Installation of and Access to the Autodesk Materials.''</blockquote><ref name="lsa17" />

The same clause required the licensee to provide ''"full cooperation"''<ref name="lsa17" /> and, on a finding of noncompliance, to buy licenses to cure & ''"pay the reasonable costs of the audit"''.<ref name="lsa17" />

The same clause required the licensee to provide ''"full cooperation"''<ref name="lsa17" /> and, on a finding of noncompliance, to buy licenses to cure & ''"pay the reasonable costs of the audit"''.<ref name="lsa17" /> Autodesk shifted the audit onto the customer in a 2021 revision of its General Terms. A version archived on March 8, 2021 required the customer, on an audit request, to ''"provide a report to Autodesk using an Autodesk approved verification tool"'' within 15 days, in place of the earlier model in which Autodesk conducted the inspection itself.<ref name="gt-2021" />

[[File:Autodesk-LSA-FY17-audit-clause.png|thumb|center|upright=2.8|Section 9.7 of Autodesk's fiscal-year 2017 License and Services Agreement gave Autodesk the right to audit a customer ''"electronic or otherwise"'' and, on a finding of noncompliance, to make the customer buy licenses and pay the costs of the audit.<ref name="lsa17" />]]

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<ref name="gt17">{{Cite web |url=https://www.autodesk.com/company/terms-of-use/en/general-terms |title=General Terms |author=Autodesk, Inc. |date=2026-03-30 |website=Autodesk |access-date=2026-07-06}}</ref>

<ref name="gt-2021">{{Cite web |url=https://web.archive.org/web/20210308102410/https://www.autodesk.com/company/terms-of-use/en/general-terms |title=General Terms |author=Autodesk, Inc. |date=2021-03-08 |publisher=Autodesk, via Internet Archive |access-date=2026-07-06}}</ref>

<ref name="lsa17">{{Cite web |url=https://download.autodesk.com/us/FY17/Suites/LSA/en-us/lsa.html |title=Autodesk License and Services Agreement (FY17) |author=Autodesk, Inc. |website=Autodesk |access-date=2026-07-06 |archive-url=https://web.archive.org/web/20260706065432/https://download.autodesk.com/us/FY17/Suites/LSA/en-us/lsa.html |archive-date=2026-07-06 |url-status=live}}</ref>

<ref name="ss-scan">{{Cite web |url=https://scottandscottllp.com/autodesk-audits-how-to-effectively-scan-your-network-and-prepare-accurate-results/ |title=Autodesk Audits: How to Effectively Scan Your Network and Prepare Accurate Results |publisher=Scott & Scott, LLP |access-date=2026-07-06}}</ref>

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 == Background ==
-Autodesk distributes its software under license rather than sale. In ''Vernor v. Autodesk, Inc.'', 621 F.3d 1102 (9th Cir. 2010),<ref name="vernor-cl" /> the U.S. Court of Appeals for the Ninth Circuit held that an Autodesk user is ''"a licensee rather than an owner"'' of the copy, applying a three-factor test that turns on whether the copyright owner grants a license, restricts transfer, & imposes use restrictions.<ref name="vernor" /> Because the user is a licensee, the [[First-sale doctrine|first sale doctrine]] (17 U.S.C. § 109(a)) & the essential-step defense (17 U.S.C. § 117(a)(1)) do not apply, so reselling or copying the software without authorization infringes Autodesk's copyright.<ref name="vernor" /> Timothy Vernor, a reseller of used AutoCAD Release 14, had brought the declaratory-judgment action himself after Autodesk sent DMCA takedown notices over his eBay auctions; a federal district court ruled in his favor, & the Ninth Circuit reversed for Autodesk in 2010.<ref name="vernor" />
+Autodesk distributes its software under license rather than sale, so a customer never owns the copy. The point was settled in ''Vernor v. Autodesk, Inc.'', 621 F.3d 1102 (9th Cir. 2010).<ref name="vernor-cl" /> Timothy Vernor bought several used, boxed copies of AutoCAD Release 14, one at a garage sale and four more from another business that had originally obtained them from Autodesk, and resold them on eBay. Autodesk filed copyright take-down notices to pull the listings, so Vernor sued in 2007 to establish that reselling copies he had bought was lawful.<ref name="vernor" /> A federal district court in Seattle ruled for Vernor, but in 2010 the Ninth Circuit reversed: it held that an Autodesk user is ''"a licensee rather than an owner"'' of the copy, under a test that asks whether the seller grants a license, significantly restricts transfer, & imposes notable use restrictions.<ref name="vernor" /> Because a customer is only a licensee, the [[First-sale doctrine|first sale doctrine]] that normally lets a buyer resell what they bought (17 U.S.C. § 109(a)) does not apply, and neither does the essential-step defense for the copy made during installation (17 U.S.C. § 117(a)(1)).<ref name="vernor" />
 [[File:Vernor-v-Autodesk-9th-Circuit-holding.png|thumb|center|upright=2.0|In ''Vernor v. Autodesk, Inc.'', the Ninth Circuit held that Autodesk's customers are licensees rather than owners of their copies, so they cannot resell the software or rely on the first-sale doctrine.<ref name="vernor" />]]
@@ Line 33: / Line 33: @@
 An earlier generation of the agreement, Autodesk's fiscal-year 2017 License and Services Agreement, put the audit in Autodesk's hands rather than the customer's and expressly allowed it to be conducted ''"electronic or otherwise"''. Section 9.7 gave Autodesk the right, on 15 days' notice, to inspect the customer's records, systems, & facilities:
 <blockquote>''As part of any such audit, Autodesk or its authorized representative will have the right, on fifteen (15) days' prior notice to Licensee, to inspect Licensee's records, systems and facilities, including machine IDs, serial numbers and related information, to verify Licensee's Installation of and Access to the Autodesk Materials.''</blockquote><ref name="lsa17" />
-The same clause required the licensee to provide ''"full cooperation"''<ref name="lsa17" /> and, on a finding of noncompliance, to buy licenses to cure & ''"pay the reasonable costs of the audit"''.<ref name="lsa17" />
+The same clause required the licensee to provide ''"full cooperation"''<ref name="lsa17" /> and, on a finding of noncompliance, to buy licenses to cure & ''"pay the reasonable costs of the audit"''.<ref name="lsa17" /> Autodesk shifted the audit onto the customer in a 2021 revision of its General Terms. A version archived on March 8, 2021 required the customer, on an audit request, to ''"provide a report to Autodesk using an Autodesk approved verification tool"'' within 15 days, in place of the earlier model in which Autodesk conducted the inspection itself.<ref name="gt-2021" />
 [[File:Autodesk-LSA-FY17-audit-clause.png|thumb|center|upright=2.8|Section 9.7 of Autodesk's fiscal-year 2017 License and Services Agreement gave Autodesk the right to audit a customer ''"electronic or otherwise"'' and, on a finding of noncompliance, to make the customer buy licenses and pay the costs of the audit.<ref name="lsa17" />]]
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 <references>
 <ref name="gt17">{{Cite web |url=https://www.autodesk.com/company/terms-of-use/en/general-terms |title=General Terms |author=Autodesk, Inc. |date=2026-03-30 |website=Autodesk |access-date=2026-07-06}}</ref>
+<ref name="gt-2021">{{Cite web |url=https://web.archive.org/web/20210308102410/https://www.autodesk.com/company/terms-of-use/en/general-terms |title=General Terms |author=Autodesk, Inc. |date=2021-03-08 |publisher=Autodesk, via Internet Archive |access-date=2026-07-06}}</ref>
 <ref name="lsa17">{{Cite web |url=https://download.autodesk.com/us/FY17/Suites/LSA/en-us/lsa.html |title=Autodesk License and Services Agreement (FY17) |author=Autodesk, Inc. |website=Autodesk |access-date=2026-07-06 |archive-url=https://web.archive.org/web/20260706065432/https://download.autodesk.com/us/FY17/Suites/LSA/en-us/lsa.html |archive-date=2026-07-06 |url-status=live}}</ref>
 <ref name="ss-scan">{{Cite web |url=https://scottandscottllp.com/autodesk-audits-how-to-effectively-scan-your-network-and-prepare-accurate-results/ |title=Autodesk Audits: How to Effectively Scan Your Network and Prepare Accurate Results |publisher=Scott & Scott, LLP |access-date=2026-07-06}}</ref>