How an attorney should handle a Siemens Industry Software Inc. Software Lawsuit

Siemens PLM | Siemens Product Lifecycle Management Software Piracy Lawsuit

Because software-based copyright infringement cases are especially concerning the John Doe Defendants who are accused of using pirated software (such as what is going on right now with the Siemens Industry Software Inc. v. Does 1-150 [4:20-cv-00798] and the Siemens Industry Software Inc. v. Does 1-10 [4:20-cv-00801] cases in Texas), I thought it would be beneficial to take a few moments and simplify the process. That way, when you pay an attorney, you will know exactly what the attorney will be doing.

Steps an attorney should take in representing a defendant in a Siemens Industry Software Inc. case.

Here are the steps your attorney (us, or anyone else) should be taking on your behalf — specifically with the Siemens Industry Software Inc. v. Does 1-150 (Case No. 4:20-cv-00798) case:

STEP 1) STOP PLAINTIFF FROM CONTACTING YOU OR ANYONE ELSE ON YOUR BEHALF (WORKPLACE) ABOUT THE CLAIMS AGAINST YOU.

Once your plaintiff attorney learns that you are represented by an attorney, all communication must be with that attorney alone. Phone calls or letters to client directly once a notice of representation is provided can jeopardize that attorney’s law license.

STEP 2) RESEARCH AND DISCUSS CLAIMS COMPARING PLAINTIFF ATTORNEY’S DATA OF USE VERSUS ACTUAL USE OR NON-USE.

Siemens Industry Software Inc. likes to research the claims, and they take their time in getting the entire picture before discussing settlement. It is important to share truthful information with your defense attorney so that claims against you can be disputed with facts and dates. And obviously, your attorney should have the common sense to discuss the claims without admitting guilt on your behalf.

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STEP 3) DISCUSS AND NEGOTIATE SETTLEMENT OPTIONS WITH PLAINTIFF ATTORNEY, WHETHER A SOFTWARE PURCHASE, A LICENSE, A SETTLEMENT FEE, OR NO SETTLEMENT (PROCEED WITH LAWSUIT).

Normally the plaintiff attorneys in a copyright infringement lawsuit (or more frequently, a bittorrent-based “copyright troll” lawsuit) will immediately approach a settlement regardless of guilt or wrongdoing. This is not the case with the Siemens Industry Software Inc. software lawsuits. Rather, it appears as if they are seeking to convert those using unlicensed versions of their software into paying customers. For this reason, once the investigation is completed and claims are discussed, settlement options are discussed as well. This might include purchasing software, paying a settlement, or negotiating a license based on the limited past use of the software.

The “no settlement” option is obviously the scenario where the client did not do the download. Because Siemens Industry Software Inc. software is expensive (costs can range from a few thousand dollars to over thirty thousand dollars), there is no reason to negotiate a settlement if the accused John Doe Defendant did not download or use the software. Rather, the alternative is to provide proof that the John Doe Defendant is not the individual Siemens Industry Software Inc. is looking for (it is difficult to prove a negative, but it is doable), or to help Siemens Industry Software Inc. come to the realization that the actual software user is the engineer next door running his business from his home.

Obviously if neither side can agree on anything, then yes, it makes sense to proceed to allow the plaintiff attorney to name and serve your client, file an answer with the court, and proceed with defending your client’s interests in the courtroom.

STEP 4) NEGOTIATE PRICE (IF BENEFICIAL, CONSIDERING CLIENT’S ABILITY TO PAY). PROVIDE DOCUMENTATION OR STATEMENT IF NECESSARY TO SUBSTANTIATE CLAIMS.

Many accused defendants installed the software for educational purposes — to ‘tinker’ with the software, to learn the software, or to become conversant with the software. While the intention of the unlicensed use is noble (e.g., that user would later be working with a licensed version of the software at their workplace or in their business), for the moment, there was folly in their initial use of the software. This is our goal — to have these specifics be relevant and useful in a negotiation with Siemens Industry Software Inc. to arrive at a settlement price the client can afford.

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STEP 5) NEGOTIATE TERMS OF SETTLEMENT AGREEMENT. NEGOTIATE A SOFTWARE LICENSE IF NEEDED OR REQUIRED.

These are two separate steps. The settlement agreement should be specific to the claims of copyright infringement, and they should include the nuances of Texas contract law in order to ensure the agreement is enforceable. The software license also is full of nuances and words that requires an attorney who knows what terms mean in software licenses (because certain words have meanings in the context of a software license which are contrary to the plain meaning of the word), and who is forceful enough to be willing to argue for terms or clauses which protect the client’s rights. Lastly, the software license should provide the accused John Doe Defendant the right to use the software in the way the accused defendant wants or needs to use the software in the future. It makes no sense to negotiate a limited software license to cover only past use when the defendant is an engineer and will be needing to use the software again in the future.

STEP 6) HAVE PLAINTIFF ATTORNEY SIGN AGREEMENT(S), THEN HAVE CLIENT SIGN AGREEMENT(S) AND PROCESS SETTLEMENT PAYMENT.

This is self explanatory. Siemens Industry Software Inc. is not bound to an agreement until they sign it (or until their attorney with authority to sign signs it on their behalf as their agent). Attorneys generally try to get the John Doe Defendant to sign first and pay their settlement fee, and then ‘maybe’ the plaintiff attorney will sign it, and ‘maybe’ the attorney will accept the payment, and ‘maybe’ the attorney will release that defendant from liability once the settlement is received. These are games a plaintiff attorney may play, and for this reason, it is advisable to have the defense attorney insist that the plaintiff attorney sign the agreement first in order to bind their client to the terms of the agreement… before their client signs the agreement or pays a penny in settlement of the claims against them.

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STEP 7) FOLLOW-UP WITH PLAINTIFF TO HAVE CLIENT’S “JOHN DOE” ENTITY DISMISSED FROM CASE.

Once again, this is self explanatory, but unfortunately, it must be a step. Too often, plaintiff attorneys have the clients sign first and pay first, and then when they get around to it, they’ll sign the agreement and release that defendant from liability. However, this could take weeks or months.

The reason for this is because once their client has their money, without being contract-bound to release the defendant from the lawsuit, the John Doe Defendant who paid their settlement fee becomes a lower priority to the busy plaintiff attorney (who is juggling sometimes hundreds of defendants in multiple cases) who is more worried about the due dates for their other cases, or who is more worried about extracting settlements from other defendants. This is why it is important in STEP 6) for the plaintiff attorney to sign the agreement first.

Nevertheless, even with a signed agreement, sometimes the plaintiff attorneys need ‘reminders’ to do what they are duty-bound to do. Thus, your attorney should not close the client’s file when payment is sent, but rather, the attorney should stay on top of the plaintiff attorney until the dismissal is actually filed in the court dismissing that John Doe Defendant from liability.

In sum, copyright infringement cases are all similar, but each one has its nuances. The steps described in this article apply to any John Doe Defendant in any copyright infringement lawsuit, and for this reason, I wrote this article 1) to not only give the client an understanding of the steps which are required in representing a client prior to being named and served in a John Doe lawsuit, but more importantly, 2) to allow that client to hold their lawyer’s toes to the fire and make sure they are being represented carefully and individually.

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LEVERAGE:

ONE LAST THING — I wanted to discuss LEVERAGE. A copyright infringement lawsuit is in federal court, which means that out-of-state attorneys may attempt to solicit clients to engage in settlement negotiations only. However, with a client as large as Siemens Industry Software Inc., especially with the financial backing of the corporation and the millions of dollars they can pour into their lawsuits, it is probably a good idea to retain a local Texas-licensed attorney who can step foot into the courtroom if something goes wrong (and things DO go wrong). The Siemens Industry Software Inc. attorneys can recognize an out-of-state attorney who has little leverage to negotiate versus an in-state attorney who is willing to pull the settlement off of the table and proceed with defending the case if the plaintiff is not being cooperative in resolving the claims against the client. In short, an attorney with leverage will get a better result for his client as compared to an out-of-state attorney without leverage.

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OTHER ARTICLES ON THE SIEMENS PLM SOFTWARE CASES:

Siemens Industry Software Inc. NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

The Siemens Industry Software Case IS a Bittorrent Case, on 6/20/2016.

What to do about the Siemens Industry Software Inc. v. Does case (TX), on 1/16/2016.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

    NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

    Siemens Software Case IS a Bittorrent Case

    Siemens PLM | Siemens Product Lifecycle Management Software Piracy Lawsuit

    This is a follow-up article to the “What to do about the Siemens Industry Software Inc. v. Does case (TX)” article I wrote last week.

    I did a bit more digging into the Siemens Product Lifecycle Management Software Inc. v. Does 1-100 (Case No. 4:16-cv-01422) lawsuit in the U.S. District Court for the Southern District of Texas, and I learned more about their software, and more about where some of the John Doe defendants are coming from.  What I also learned was that this is not the first time they have sued defendants for copyright infringement.

    *UPDATE* As of 3/2020, Siemens PLM has filed their 8th wave of lawsuits, including the following pair of cases: Siemens Industry Software Inc. v. Does 1-150 (Case No. 4:20-cv-00798), and Siemens Industry Software Inc. v. Does 1-10 (Case No. 4:20-cv-00801), both filed in the Texas Southern District Court.

    Have you read enough? Book Now to get help. > > >

    The Siemens Industry Software Inc. software being sued over is known as the Siemens NX software.

    According to Wikipedia, “NX, formerly known as NX Unigraphics or usually just UG, is an advanced high-end CAD/CAM/CAE software package originally developed by Unigraphics, but since 2007 by Siemens PLM Software… NX is a direct competitor to TopSolid, CATIA, Creo, Autodesk Inventor, and SolidWorks.”  In 2020, Siemens Product Lifecycle Management Software (a.k.a. Siemens PLM) has been rebranded to be Siemens Industry Software Inc.

    The Pirate Bay shows 9 torrent files for “Siemens NX” software (below).

    062016 Siemens PLM NX

    Surprisingly, for version 9, there are only 3 seeders (uploaders).  For all others, there is only one seeder.  For a program that takes on average 1GB-5.7GB to download, a download like this could take forever to complete.

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    Looking at version 10 (the current stable release; version 11.2 is probably a fake), there is one seeder (uploader) and one leecher (downloader).  See attached.

    062016 Siemens PLM NX 10

    Have you read enough? Book Now to get help. > > >

    As dry as this post may be, the point is that my suspicions were correct — even though the bittorrent file provides a serial number (probably a valid, but likely an OLD registration code), and even though there is an “activator” which modifies or “cracks” the pirated file to allow the software to accept the old serial number [it likely does this by blocking the “authentication” feature when the software checks with the server to verify the registration key], the software looks to the user as if he has successfully registered the software.

    However, through the CASUAL USE of the software, the activator software is likely not persistent, which means that after the software is registered using the old key, it restores the software’s executable (.exe) file to its original state.  Then, when using the software, it connects to Siemens’ servers for whatever purpose (to download an update, to check for new features, etc.), and this is how their copyright enforcement / IT department can identify the IP address of the individual using a pirated copy of the software.

    In sum, what this means is that Robert Riddle (more recently, attorneys Andrew Bluebond, and now Kate Geldmacher) and the Siemens copyright holder likely knows how long the software has been in use, and which IP addresses have been using an old or invalid serial number.  This will likely be a consideration when discussing the matter with the plaintiff attorneys on behalf of my clients.

    Have you read enough? Book Now to get help. > > >

    *2020 UPDATE* Usually as the Siemens Industry Software Inc. cases advance from one wave to the next, I update these articles with the most recent case number and “motion to quash” due date given to the subscriber by the ISP.  However, the 2020 case is too new, and I do not yet have an update for the Siemens Industry Software Inc. v. Does 1-150 (Case No. 4:20-cv-00798) or the Siemens Industry Software Inc. v. Does 1-10 (Case No. 4:20-cv-00801) cases, both filed on 3/2020.  Thus, please read what I have written below and apply it to the subpoena you received from your ISP.

    *2018 UPDATE* What all this means for you — 1) October 5th, 2018 appears to be the date that Charter Communications will be ordered to hand over the names and addresses of the 107 accused John Doe defendants, so pay attention to the lifecycle of your lawsuit, and when you are no longer anonymous

    Also be sure to read about motions to quash so that you will understand whether you will want to stop your ISP from handing over your ISP, as most defendants in this most recent case do not appear to live in Texas. 2) If you have been using the software, they likely know more details than you would like as to what you have been doing with it.  3) Speak to an attorney (me, or anyone else) about what options you have to get out of this, whether you were the downloader, the purchaser (of a pirated copy of the software), or whether you have absolutely no idea why you have been implicated as being one of the John Doe defendants in this case.

    Have you read enough? Book Now to get help. > > >

    OTHER ARTICLES ON THE SIEMENS INDUSTRY SOFTWARE INC. CASES:

    How an attorney should handle a Siemens Industry Software Inc. lawsuit, on 1/11/2017.

    Siemens Industry Software Inc. NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

    Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

    The Siemens Industry Software Inc. Case IS a Bittorrent Case, on 6/20/2016.

    What to do about the Siemens Industry Software Inc. v. Does case (TX), on 1/16/2016.


    CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

      NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

      Advice On The Siemens Industry Software Inc. Lawsuit

      Siemens PLM | Siemens Product Lifecycle Management Software Piracy Lawsuit

      Siemens Industry Software Inc. filed yet another John Doe Lawsuit against engineers who obtained pirated copies of their software from unlicensed sources. This article will explain what the Siemens lawsuits are, what they are not, what Siemens wants from you, and how to securely get out of this lawsuit unscathed.

      siemens-industry-software-inc Siemens Industry Software Inc.
      dmkoch / Pixabay

      Siemens Industry Software Inc. is NOT a copyright troll lawsuit.

      This is one of the more difficult blog entries to write, because the “Siemens Industry Software Inc.” cases (most recently, the Siemens Industry Software Inc. v. Does 1-150 (Case No. 4:20-cv-00798) and Siemens Industry Software Inc. v. Does 1-10 (Case No. 4:20-cv-00801) cases in the Southern District of Texas) are not typical bittorrent extortion cases, but rather, more akin to “compulsory licensing” cases.

      How NX users are caught using the software without a license.

      In short, it would be too easy to say that the 150 John Doe defendants were implicated as downloading or uploading Siemens Industry Software Inc.’s NX software using bittorrent, because this is not the case. Siemens’ software appears to “phone home” when being used, revealing the computer users IP address (thus making them a target in a lawsuit such as this one).

      Were NX Cracks and NX Keys the culprit?

      Cracks and keys probably were part of the software download package, if the software was downloaded via a website. Alternatively, the download instructions perhaps instructed “to block the internet connection using a software firewall,” but the downloader forgot to read the instructions.  This has exposed the user to months of logs where Siemens Industry Software Inc. has been logging their use every time they use the software.

      Have you read enough? Book Now to get help. > > >

      Some accused defendants actually purchased the NX software… pirated.

      Lastly, some of the defendants are believed to have purchased the software (e.g., while the software license itself could cost $30,000, the pirated copy cost $50), but the software they purchased was pirated. Thus, when they entered the key to register the software, the key was flagged as being a pirated copy.

      What Siemens Industry Software Inc. wants from accused defendants.

      In short, Siemens Industry Software Inc. is a software company looking to stop the unlicensed use of their software, and for this reason, they hired attorney Robert Riddle, Andrew Bluebond, and most recently, Katherine Mary Geldmacher to file the most recent Siemens Industry Software Inc. v. Does 1-150 (Case No. 4:20-cv-00798) and Siemens Industry Software Inc. v. Does 1-10 (Case No. 4:20-cv-00801) lawsuits in the U.S. District Court for the Southern District of Texas.

      My thoughts about the Siemens Industry Software Lawsuits.

      The weird part for me about this case is that there are so many software solutions out there which would accomplish the result for significantly cheaper.  The Siemens Industry software modules appear to be commercial and high-end.  While there are cheaper alternatives to the Siemens Industry  NX software, engineers tell me there is no replacement for the quality that the NX software provides.  Thus, Siemens Industry Software Inc. seems to have little-to-no competition on their NX software.

      What to do if you purchased a pirated copy or downloaded the NX software?

      So… what to do now. If you purchased a pirated copy or downloaded an unlicensed copy of the software, all is not lost. This is why you will be hiring an attorney — to speak to your plaintiff attorney and “make it right,” whether that means purchasing a software license after-the-fact, or signing a licensing agreement for the months or years the software was in use.

      Have you read enough? Book Now to get help. > > >

      What to do if you are a business owner using the pirated NX software?

      If you are a business owner, or if the software is in use in your engineering company (or on the laptops of your employees) without authorization, you are the plaintiff’s prime targets, and the licensing strategy will likely be more comprehensive.

      What to do if you have absolutely nothing to do with this lawsuit, but were implicated as a John Doe Defendant anyway?

      If you have absolutely nothing to do with this lawsuit and yet you were implicated as a John Doe Defendant, well, this happens too, and I’d be happy to represent you telling them that there will be no software licensing deal, and that there will be no payment to the plaintiff copyright holders.

      The immediate concern is that like all copyright infringement “John Doe” lawsuits, your plaintiff copyright holder has been given permission by a federal judge (e.g., Texas Judge Lynn Hughes) to issue subpoenas to the internet service providers to hand over the subscriber contact information to the plaintiff attorney by or before a certain date.  That date is quickly coming to a close, so this is why you have been trying to contact our firm to figure out your options in how to proceed.  I’d be happy to discuss these with you, obviously time permitting.

      Have you read enough? Book Now to get help. > > >

      OTHER ARTICLES ON THE SIEMENS INDUSTRY SOFTWARE INC. CASES:

      How an attorney should handle a Siemens Industry Software Inc. lawsuit, on 1/11/2017.

      Siemens Industry Software Inc. NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

      Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

      Siemens Industry Software Inc. Software Case IS a Bittorrent Case, on 6/20/2016.

      What to do about the Siemens Industry Software Inc. v. Does case (TX), on 1/16/2016.


      CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

        NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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