Since the passage of the Digital Millennium Copyright Act (“DMCA”), Autodesk has used the Act’s anti-circumvention provision as a tool to demand higher settlements in copyright infringement actions against companies who are alleged to have unlicensed software installed on their computers. This provision is designed to prevent a user of the software from tampering with it to overcome security features and to install the software on computers without an appropriate license.

Autodesk has obtained mixed results from this approach. Notable among the outcomes that were less-than-favorable to Autodesk in this regard is the case of Timothy Vernor.  In response to a threat for legal action citing, in part, violations of the DMCA, Vernor filed suit against Autodesk in 2007 and succeeded in obtaining a partial settlement that allowed him to resell used copies of Autodesk products on EBay. However, Autodesk nevertheless is persisting with its DMCA arguments. In June 2009, it filed lawsuits in California against companies accused of copyright infringement and unlawful reproduction of Autodesk products. The complaint filed in Autodesk v. Scenario Design, Inc., alleges Scenario Design violated the DMCA’s anti-circumvention provision. If successful, Autodesk could recover a higher award than it would on just a “traditional” claim of copyright infringement by proving Scenario Design unlawfully circumvented the software’s security protection.  A similar case alleging copyright infringement, Autodesk v. Cubellis, Inc., was filed in California on June 1, 2009 by Autodesk. However, on July 23, 2009, this case was voluntarily dismissed by Autodesk.

Ironically, Autodesk faces its own copyright infringement claims in the matter of Crook v. Autodesk, filed May 13, 2009 in California. The plaintiff there asserts that Autodesk has engaged in reproducing copyrighted software at its offices and has itself violated the anti-circumvention provision of the DMCA. The complaint alleges that a tracking program run by the plaintiff identified users at Autodesk who were using fraudulent codes and registration keys to obtain access to the plaintiff’s software.

If your business is facing allegations of copyright infringement or unlawful circumvention by Autodesk or other software publishers, it is critical that you contact knowledgeable counsel to assess the validity of the claim and to help you to achieve an efficient and reasonable resolution.