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I was contacted by a lawyer from SolidWorks Corp. (3DS) who

want me to purchase a...
I was contacted by a lawyer from SolidWorks Corp. (3DS) who want me to purchase a license of there software. They claim they have my IP address as one that used there software illegally. I did evaluate there software and have since uninstalled it, I have not yet contacted them back, but they are asking me to purchase a full license. I am un-employed in the job market, and only was looking to get familiar with it so I can be prepared moving forward. I have an email prepare to send them, and would like to have someone evaluate the wording so that I am not incriminating myself.
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: I am in NY. Solidworks is in Massachusetts I believe.
JA: Has anything been filed or reported?
Customer: not yet
JA: Anything else you want the lawyer to know before I connect you?
Customer: They contacted me through a former employee that I had purchased a laptop from. They were able to trace the MAC address
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Answered in 3 minutes by:
9/19/2017
ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 17,228
Experience: Licensed Texas General Practice Attorney
Verified

Thank you for using JustAnswer.

I'm sorry to hear about your situation. I've assisted a few individuals with these emails and demand letters.Infringement law and strategy is an interesting thing. Of all the individuals that infringe, it seems about 10-20% get an email. Note that finding people and getting names, email addresses, etc... is an expense, and they can't do this for everyone that infringes. Then getting a physical address is even more expensive, to send a physical demand letter. Finally, the most expensive is to file an actual suit (which I would say is most likely less than .01% (that's point zero one percent, not one percent) of all infringers. The key is to scare you. This is called "brinkmanship" and represents a legal strategy to scare you into thinking that you're next. Basically they make the alternative so unbearable and publicize it to the extreme. Yes, it's possible that you're going to get sued. But it's far more likely that you won't be.

Personally, if it were me, I would wait until "proof" of what was stolen. While statements made in the course of a settlement agreement are privileged from use as evidence in a civil trial, it could be argued that this is not in the course of the settlement agreements, and they still might try to use it. I would make absolutely clear that anything that you say during the course of communications with them is to settle an alleged (don't admit to it either) infringement case.

Now as a practical matter, copyright infringement cases are expensive. You need to know that under the U.S. Copyright Act (17 U.S.C. 504), the owner can obtain damages of $750 per copyright for a willful violation, and $200 for an unknowing violation -- or, actual damages, plus attorney's fees and costs of suit -- at the election of the plaintiff/owner. So, you could offer them a settlement, send them a letter, saying that you don't admit to any infringement, whatsoever, and further you have had no sales through this website, nor any significant assets. You have yet to make a profit on this business anyway, and any litigation against you would absolutely wipe you out and force bankruptcy (bankruptcy would wipe out such a debt). But to close this matter you are offering a smaller amount, say $100 or $200, for them to completely and totally drop any and all claims against you. Include the check with the letter, and in the letter state that if they want to accept this offer, to cash the check. Expressly state that it is a counter offer to their settlement offer sent on MM/DD/YYYY, and the terms will remain the same...

This is actually indicative of a changing strategy in IP law... That is, a move away from C&D (cease and desist) letters towards settlement letters. The reason is because C&D letters are not "income producing". But as a practical matter, enforcement of IP rights boils down to money... That is, a letter (C&D or settlement) is MUCH cheaper to send than to actually file a lawsuit, serve the person, have hearings, discovery, trial, etc... A simple copyright lawsuit that is contested could easily cost $10,000. And as a practical matter, if there's no loss to the IP holder and no gain to the infringer, these cases almost NEVER go to that stage. The costs and time involved are prohibitive, and unless you are sitting on a mountain of money to pay their attorneys fees and damages, the likelihood that they'll actually collect a judgment is slim.

But even if they don't take your counteroffer (which means they retain the right to sue), that doesn't mean that they will actually sue. Again, it's all about money, and they're going to focus on the lawsuits that will bring them the most money for the least trouble. That means they're going to go after the big infringers, that have assets, rather than the small ones. ...that might declare bankruptcy at the end, meaning they get nothing, and spend much more than they'd ever recoup). In the end, this is a business, and they're not going to focus on the things that bring in pennies when they want thousands of dollars.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

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Are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions).

If you can't see the stars, you may need to scroll up / down / left / or right to see them. This is where you rate so that the question will close out.

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Customer reply replied 1 month ago
one additional piece of information, the way they contacted me was through an email. If I do as you state and send a counter offer, how do I do this if all I have is an email?

You could send it in an email. Or you could wait to see IF they'll even send you a physical demand letter. If all they have is email, to be entirely honest I wouldn't worry that much about it. But you can send them an email letting them know that you can't afford anything in your situation, if that would help satisfy your fears.

ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 17,228
Experience: Licensed Texas General Practice Attorney
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Customer reply replied 1 month ago
Thank you for your help. I will email them as you stated, without offering a counteroffer and admit no wrong doing.5 Stars!

You're welcome, and again, good luck to you!

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Customer reply replied 1 month ago
I have written an email to the Solidworks attorney, and responded as you had stated, but now they are asking that I purchase a full license of there product? here is the email responce they emailed me..." Hi Larry-
Thank you for your offer of $100 as settlement. DS Solidworks will accept the purchase of a legal version and 12 month subscription to close the case. There are no other monetary settlement options. I can have an authorized reseller prepare a quotation for a Solidworks Standard license with sub for your consideration. We sell through resellers, not direct. The reseller can discuss payment options with you. Please let me know if you would like me to proceed.
Please do not contact a reseller at this time. The reseller needs to understand the purchase is for a compliance, and is not eligible for any discounting or promotions. If a purchase is made without my knowledge, the case against you will remain open. Taking these steps will bring you into compliance with our End User License Agreement.
Wendy Feddersen
SolidWorks Compliance Mediator"

How much would a full license be?

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Customer reply replied 1 month ago
$4000. I am currently unemployed, and cannot afford that cost, nor do I have a need for my own license.

Understood. So you can tell him that you can't afford that. Like I said, they're going to pursue this in court only if they have a good chance of recovery. SO you can tell him "I'm sorry, I can't afford that. I'm unemployed and on the verge of bankruptcy as it is. So if you want to file a lawsuit, my bankruptcy attorney will be contacting you about it." Again, my bet is that 99% of these letters are spineless (no intent on actually filing a lawsuit) so I wouldn't worry too much about it.

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Customer reply replied 1 month ago
That is a scary proposition to white such a email to them, are you sure this is the best approach? what if they do pursue legal action?

The alternative is that you pay $4,000, right? But you can't afford that?

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Customer reply replied 1 month ago
correct. but wouldn't legal action cost me more?

It'd cost THEM more. If you can't pay $4,000, a $20,000 legal bill will bankrupt you. But bankruptcy discharges these types of debts. So they are out $20,000, you don't have any obligation to pay the $20,000 (again, in bankruptcy). That's why you threaten it, because it makes them less likely to file because they'd end up with less money than they have now.

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Customer reply replied 1 month ago
Ok, thank you, ***** ***** proceed with your advice. Thank you again for your help. If this works, I will be sure to send you a bonus!Thanks again!Larry Jedik

Thank you, ***** ***** I do wish you the best of luck in this situation!

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Customer reply replied 1 month ago
Not the response I wanted to receive..."Hi Larry-
Yes, please have them contact us. I will forward the information on to our outside legal counsel.
Best
W
Best Regards,
Wendy Feddersen
SolidWorks Compliance Mediator"at this point should I be hiring a lawyer?

No, I would say that I don't have a bankruptcy lawyer yet. But a lawsuit would do that. So let me know if you file a lawsuit. I'll then have to go to a bankruptcy attorney because I can't afford anything else.

It seems as though she thinks that you already have a lawyer. The point is to prevent them from thinking that a lawsuit is a good idea.

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Customer reply replied 1 month ago
Ok, it sounds as though she is forwarding it to their internal legal counsel. Is it possible it would go there and they then would determine to sue or not?
Customer reply replied 1 month ago
her quick response..."Hi Larry-
Unless a bankruptcy is in process, it wouldn’t factor into the case.
Thanks
W
Best Regards,
Wendy Feddersen
SolidWorks Compliance Mediator"

Then I would say "okay". I'll wait to hear back from you about any lawsuits.

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Or something along those lines. You can certainly tell her that you can prove your unemployment and that you can't afford anything more, if she wants. But you're simply unable to pay this, so if they want to file, there's nothing that you can do to stop them...

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Customer reply replied 1 month ago
can I say that the product does not reside on my machine anylonger? or is that saying I admitting infringement at one time?

You can say "I don't even have this product on my computer" as opposed to "any longer". The first statement never makes any admission other than a present-tense one. The second one implies that it was on there once.

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Customer reply replied 1 month ago
It has been three weeks now since I was last communicating with 3Ds about this, and it was last communicated that if they wanted to to file against me, I had no choice, and that I don't even have the product on my machine. since then (9/20) I have not received any communication from them. can I assume the case is dropped against me? Should I ask for clarification? Because this went through a former employer to find me, this former employer is looking for proof that the case is now closed. how should this be handled?Larry Jedik

I wouldn't talk to them at all. Again, litigation is very expensive, whereas phone calls, emails, and letters are dirt cheap. Threats are a dime a dozen. I'd say that it's safe to believe that they're not going to pursue it, but no reason to pester them and ask them about it. They're not going to actually tell you that they're not pursuing it. They're just going to be going after other individuals that they hope they can get a settlement from.

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Customer reply replied 1 month ago
would it be safe to assume that my former employer is being accused now and that they are looking for a settlement from them? This could be dangerous for me on the local level as the former employer would come after me.

It's possible. I don't know if it would be "safe to assume". I would think that your former employer would contact you, but they can't get a payout from them if they're not responsible for your actions.

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Customer reply replied 1 month ago
ok, I did recently contact a former manager, whom I contacted through email due to a job offer which was rescinded, after they contacted my former employer. He refused to discuss anything with me and asked with the pending legal issues, it was in his best interest and the companies to not communicate any further. I have no proof that this case was discussed with them, but I can only assume that it was, as the job offer was solid until they contacted my former employer. I'm in a tough spot I guess.

Basically you're in a spot where you don't really know anything, and I always feel that it's not smart to make decisions without knowing more about the situation. So I would not contact them knowing what you know.

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Customer reply replied 1 month ago
ok, thank you for your expert advise. no further action will be taken.

You're welcome, and again, good luck to you!

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Customer reply replied 1 month ago
One last question, is my former employer breaking any law's if they are discussing this case with any new potential employers when they call them as a reference?

No. They could be engaging in defamation if they're making false accusations about your, but there are no privacy laws that would be violated here.

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